Tandeka McCann vs Community Action Commission of Santa Barbara County
Case No: 17CV01397
Hearing Date: Fri Apr 05, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant Community Action Commission of Santa Barbara for summary judgment, or alternatively, for summary adjudication, is denied in its entirety.

Background:

This is an employment harassment and discrimination complaint brought by plaintiff Tandeka McCann against her former employer defendant Community Action Commission of Santa Barbara (CAC). CAC now moves for summary judgment, or alternatively, for summary adjudication. The motion is opposed by McCann.

CAC’s organization of its motion, and particularly of its supporting separate statement facts in non-numerical and non-chronological order together with McCann’s responses to those separate statement facts, makes a background discussion of facts difficult. A few basic background facts are helpful, with facts specific to particular requested adjudications discussed below as necessary:

CAC is a private non-profit social service agency, which conducts diverse programs for local communities including, but not limited to, job training, education, and mentoring programs for teens and young adults, meal programs for seniors, and, as particularly relevant to this action, early childhood education programs. (Mitchell decl., ¶ 7.) As part of the Children’s Services program, CAC provides classroom instruction and day care for pre-school aged students. (Ibid.) CAC operates an early child care and education center in its Children’s Services program throughout Santa Barbara County, including, the Fillmore Center (Fillmore) in Lompoc, California. (Mitchell decl., ¶ 8.) McCann, an African-American female, was a full-time teacher at Fillmore while employed by CAC. (Mitchell decl., ¶ 18.) McCann reported to Shonna Martin, Site Supervisor, who reported to Linda Wilkes, Program Manager. (Mitchell decl., ¶ 19.) Mattie Gadsby was the Program Director of the Children’s Services Program from March 2007 until August 2015, when Lorraine Neenan replaced her. (Ibid.) Anthony Mitchell was Director of Human Resources from 1991 to 1995, and from 2011 to May 2018. (Mitchell decl., ¶ 3.) From May 2018, Mitchell has been the Chief Operating Officer for CAC. (Ibid.)

Analysis:

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.)

“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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, 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 defendant … 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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. The plaintiff … shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

(1) Racial Harassment

McCann’s first cause of action is for racial harassment under the California Fair Employment and Housing Act (FEHA). (See Gov. Code, § 12940, subd. (j).) CAC asserts three bases for summary adjudication in its favor as to the first cause of action: (1) the action is barred by the statute of limitations where the continuing violation doctrine is not available to revive time-barred claims prior to March 31, 2015, because the situation had achieved the necessary degree of permanence to defeat application of the continuing violation doctrine; (2) the action fails because the incidents of harassment do not constitute severe or pervasive conduct sufficient to support such a claim; and (3) the action fails because CAC had no knowledge of McCann’s co-workers’ asserted misconduct until July 2, 2015, and CAC took immediate corrective action upon receiving McCann’s July 2, 2015 complaint.

(A) Continuing Violation Doctrine

CAC sets forth only two material facts in support of its first issue on this cause of action. Separate statement fact 36 is that “[o]n March 31, 2016, McCann filed her administrative complaint alleging claims for racial harassment, discrimination, and retaliation under the Fair Employment [and] Housing Act.” Separate statement fact 37 begins “At her deposition, McCann alleged the following” and is followed by 15 bullet points of items. The bullet points include one incident of Dereck Dickerson reporting to Martin derogatory comments Romero made about McCann in 2006 and that Martin and Wilkes began mistreating McCann around 2011. All of the other incidents identified as being included in McCann’s deposition do not have dates. One further item, which has only relative and not absolute dates, is that the harassment, discrimination, and retaliation continued after reporting complaints to Linda Wilkes, Mattie Gadsby, Lorraine Neenan, Anthony Mitchell, and Monica Moreno about racial harassment and/or discrimination.

“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: [¶] (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and [¶] (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Rules of Court, rule 3.1350(d)(1).)

These two separate statement facts are insufficient to establish that the statute of limitations bars the first cause of action. The separate statement facts do not show that no conduct for which the claim is made did not occur within the limitations period but does affirmatively show that the discrimination was continuing.

Under the continuing violation doctrine, “a FEHA complaint is timely if discriminatory practices occurring outside the limitations period continued into that period. [Citation.] A continuing violation exists if: (1) the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period; (2) the conduct was reasonably frequent; and (3) it had not yet acquired a degree of permanence.” (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 721.) “As for ‘permanency,’ it is achieved when the harassing conduct stops, when the employee resigns, or when the employee is on notice that further efforts to end the harassment will be futile.” (Id. at p. 724.)

Separate statement fact 37 does not state whether the items listed as having been alleged in the McCann deposition are all of the incidents or events upon which the claim is based. In the absence of dates and completeness of allegations, CAC fails to meet its initial burden on summary adjudication that the harassing conduct stopped, that McCann resigned, or McCann was on notice that further efforts to end the harassment would have been futile at a time outside any applicable limitations period. Summary adjudication as to the first issue will be denied based upon CAC’s failure to meet its initial burden. (Also, as discussed below, CAC presents its own evidence that CAC later took corrective action thus creating a triable issue as to whether further efforts to end the harassment would be futile.)

(B) Severe or Pervasive Harassment

The second basis for summary adjudication of the first cause of action asserted by CAC is that the alleged incidents do not constitute severe or pervasive conduct sufficient to support such a claim. In support of this basis, CAC identifies three separate statement facts. Separate statement fact 19 relates to a July 2, 2015, call and a July 6 follow-up meeting between McCann and Mitchell regarding claims of harassment and discrimination. Separate statement fact 20 is that following the July 6, 2015, meeting, Mitchell began an investigation which included further meetings with McCann. The third fact is separate statement fact 37, discussed above, setting forth allegations made by McCann at her deposition.

“ ‘[California’s] Fair Employment and Housing Act [citation] … explicitly prohibits an employer from harassing an employee on the basis of race, sex or [ethnicity.]’ [Citation.] Harassment includes ‘epithets, derogatory comments or slurs….’ [Citation.] … [¶] [The defendant] contends that the trial court correctly ruled that ‘[o]ne racial comment is insufficient as a matter of law to establish a hostile environment.’ But ‘there is neither a threshold “magic number” of harassing incidents that gives rise … to liability … nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.’ [Citation.] [¶] In many cases, a single offensive act by a co-employee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different. … ‘… Because the employer cloaks the supervisor with authority, we ordinarily attribute the supervisor’s conduct directly to the employer.’ [Citation.] ‘Thus, a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.’ [Citation.]” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35-36.)

Separate statement fact 37, which has the incompleteness problem discussed above, includes multiple allegations of racial epithets, including uses by Wilkes, McCann’s supervisor. CAC does not meet its initial burden to establish that the conditions were not sufficiently severe or pervasive to constitute harassment. Alternatively, CAC’s own evidence is sufficient to show the existence of triable issues of fact that the conditions were sufficiently severe or pervasive to constitute harassment under FEHA. The motion to for summary adjudication on this ground will be denied.

(C) Immediate Corrective Action

“Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1).)

CAC asserts that the first cause of action is barred because CAC did not have knowledge and when it did have knowledge in July 2015 it took immediate corrective action. In support of this argument, CAC provide several separate statement facts relating to the asserted absence of complaints by McCann prior to July 2, 2015: that there is no record of a complaint related to racial harassment or discrimination prior to July 2, 2015 (Defendant’ Separate Statement [DSS], fact 4); that McCann did not raise it as an issue in relation to January 13, 2011 to December 21, 2012, annual performance evaluations (DSS, undisputed fact 9); that reports in early 2013 about Fillmore staff did not include racial harassment or racial discrimination issues (DSS, fact 10); that McCann did not raise complaints about racial harassment or discrimination at workshops (DSS, fact 13); that McCann did not raise issues about racial harassment or discrimination in a mediated agreement outlining communication practices between Martin and McCann in late 2013 (DSS, fact 14); that McCann did not raise issues about racial harassment or discrimination in connection with the April 2014 performance review for the period December 1, 2012, to December 1, 2013 (DSS, facts 15, 16); and, that McCann did not report racial harassment or discrimination during a teambuilding workshop (DSS, fact 17). Following the July 2015 complaint, CAC undertook an investigation. (DSS, facts 20-22.) As a result of the investigation, corrective action was taken in December 2015. (DSS, fact 23.)

Whether or not these separate statement facts meet CAC’s initial burden on summary adjudication, there are triable issues of fact that preclude summary adjudication on this ground. First, the separate statement facts addressing McCann not filing or making complaints in various contexts is intended as an inference the McCann did not complain prior to July 2, 2015. McCann provides evidence that she had made such complaints orally, as she was told she could do, prior to July 2, 2015. (E.g., McCann decl., ¶¶ 3-4.) Second, CAC’s separate statement facts themselves provide a timeline that CAC learned of the complaints in July 2015, conducted an investigation, and in December 2015 took corrective action. This timeline provides conflicting inferences as to whether, after July 2015, CAC took “immediate and appropriate corrective action” in taking six months for corrective action.

Summary adjudication will be denied to this cause of action on this ground. Because all bases for summary adjudication as to the first cause of action are denied, summary adjudication as to the first cause of action will be denied.

(2) Racial Discrimination

As an initial matter, the court notes that CAC has provided additional evidence in reply. The court does not consider evidence offered for the first time in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

McCann’s second cause of action is for racial discrimination. CAC asserts three bases for summary adjudication in its favor as to the second cause of action: (1) McCann cannot establish a prima facie case of race discrimination because McCann cannot show she was performing competently when she was terminated; (2) McCann cannot establish a prima facie case of race discrimination because no circumstances suggest discriminatory motive; and, (3) McCann cannot establish a prima facie case of race discrimination because CAC has a legitimate, non-discriminatory reason for McCann’s termination and McCann cannot provide substantial evidence of pretext.

“The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

In support of its first basis for adjudication of the second cause of action (issue 4), CAC provides a number of separate statement facts addressing an incident in which McCann video recorded “a partially nude child.” (DSS, facts 28-31, 33.) As determined by CAC, the recording was in violation of CAC’s policies and procedures (DSS, undisputed fact 32) and McCann was terminated (DSS, undisputed facts 34-35). The description of the video of a “partially nude” child is identified specifically by CAC as a material fact. (DSS, fact 33.) There is a triable issue of fact as to whether the child who was video recorded was “partially nude” or fully clothed. For example, McCann testified at her deposition: “Q. What state of undress was the child when you videotaped the child? [¶] A. The child was dressed. The child wasn’t naked.” (McCann depo., vol. 2, p. 407.) As set forth in separate statement fact 28, the video itself was deleted and is unavailable for inspection.

“‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) The dispute as to the fact of the nature of the video is a triable issue of fact that precludes summary adjudication on this ground.

The second (issue 5) and third (issue 6) bases for summary adjudication both rely upon the same separate statement facts (including, DSS, fact 33) for which there are triable issues of fact as discussed above. Again, the triable issue of fact precludes summary adjudication on these bases. Because all grounds for summary adjudication of the second cause of action are precluded by triable issues of fact, the motion for summary adjudication as to the second cause of action will be denied.

(3) Failure to Prevent Harassment and Discrimination

McCann’s third cause of action is for failure to prevent discrimination and harassment. “It is an unlawful employment practice …: [¶] … [¶] (k) For an employer … to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).)

CAC asserts three bases for summary adjudication in its favor as to the third cause of action: (1) McCann cannot establish that the unlawful harassment or discrimination occurred; (2) CAC has taken reasonable steps to prevent harassment and discrimination; and, (3) CAC has compliant policies.

As to the first basis for summary adjudication of this cause of action (issue 7), the separate statement facts relied upon are the same separate statement facts discussed above as alternatively failing to meet CAC’s initial burden on summary adjudication or for which there are triable issues of fact, in particular as discussed with respect to issues 5 and 6. Summary adjudication will not be granted on this basis.

As to the second basis for summary adjudication of this cause of action (issue 8), CAC relies upon three separate statement facts, the first two of which are undisputed: CAC’s Human Resources Policy Manual, in effect at the time of McCann’s employment and termination, expressly provides CAC’s equal employment opportunity policy as well as anti-harassment, anti-discrimination, and anti-retaliation policies. (DSS, undisputed fact 1.) Employees are encouraged to bring complaints to their supervisors, manager, or “any other member of management or to Human Resources Director.” (Ibid.) Employees are not required to report harassment first to his or her supervisor if that supervisor is the purported harasser. (Ibid.) McCann acknowledged receipt of CAC’s Human Resources Policy Manual onJanuary 15, 2008. (DSS, undisputed fact 2.) The third separate statement fact is:

“When Human Resources receives an employee complaint regarding discrimination, harassment, or retaliation, Human Resources will create a confidential investigation file and store the investigation file in the Human Resources department, and investigate promptly.” (DSS, fact 3.)

“ ‘Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment.’ [Citation.]” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701.)

Here, the only facts asserted by CAC as to this adjudication to support its contention that it has taken reasonable steps to prevent harassment and discrimination is that is has a written policy and a process. Failure to prevent discrimination and harassment is itself dependent upon specific conduct: “Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) As discussed above, McCann asserts that various acts of harassment and discrimination took place (which are disputed by CAC). The existence of a policy and procedure, by itself, is generally insufficient to show compliance. (See Cal. Code Regs., tit. 2, § 11023, subd. (a)(1) [“A determination as to whether an employer has complied with Government Code section 12940(k) includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.”].) Moreover, pointing only to the policy and procedure, the existence of the underlying conduct notwithstanding the policy and procedure creates a triable issue of fact as to whether CAC took “all reasonable steps necessary to prevent” such conduct. Further, as discussed above, McCann presents evidence that she provided information regarding her claims orally for which the procedure set forth in the separate statement fact was not followed until July 2015. There are triable issues which preclude summary adjudication on this issue. The same issues exist with respect to the third basis for adjudication of this cause of action (issue 9).

Because all grounds for summary adjudication of the third cause of action are precluded by triable issues of fact or for failure to meet the initial burden, the motion for summary adjudication as to the third cause of action will be denied.

(4) FEHA Retaliation

McCann’s fourth cause of action is for retaliation in violation of FEHA. “It is an unlawful employment practice …: [¶] … [¶] (h) For 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.” (Gov. Code, § 12940, subd. (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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

CAC asserts three bases for summary adjudication in its favor as to the fourth cause of action: (1) McCann cannot establish a prima facie case of retaliation because CAC’s personnel management decisions do not constitute an adverse employment action; (2) that McCann cannot show a causal connection between the alleged retaliatory acts and the alleged protected activity; and, (3) McCann cannot establish that the alleged adverse employment actions were for anything other than legitimate non-retaliatory reasons.

“ ‘In order to meet the FEHA standard, an employer’s adverse treatment must “materially affect the terms, conditions, or privileges of employment.” [Citation.] “[T]he 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.” [Citation.] Such a determination “is not, by its nature, susceptible to a mathematically precise test.” [Citation.] “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” [Citation.] FEHA not only protects against “ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement ….” ’ [Citations.]” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91-92.)

“ ‘ “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” [Citation.] “ ‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ ” ’ [Citation.] For example, ‘ “[a] mere oral or written criticism of an employee … does not meet the definition of an adverse employment action under the FEHA.” ’ [Citation.] Similarly, ‘[m]ere ostracism in the workplace is insufficient to establish an adverse employment decision. [Citation.] However, “ ‘[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for … retaliation cases.’ ” ’ [Citation.]” (Light v. Department of Parks & Recreation, supra,14 Cal.App.5th at p. 92.)

“When a plaintiff alleges a series of actions that comprise a course of conduct, we need not examine each individually. Instead, we consider the totality of the circumstances to determine whether the plaintiff has suffered an adverse employment action. ‘[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. [Citations.] Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.’ [Citation.]”

(Light v. Department of Parks & Recreation, supra,14 Cal.App.5th at p. 92.)

In McCann’s complaint within the fourth cause of action includes the allegation in paragraph 68 that “Defendants terminated Plaintiff’s employment in retaliation for her complaints regarding the discriminatory and harassing behavior.” “It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) This first basis for summary adjudication (issue 10) is that none of CAC’s actions constituted an “adverse employment action.” Termination is an adverse employment action alleged in the complaint. The separate statement for this basis does not address termination as an “adverse employment action,” for example, by a complete discovery response identifying all “adverse employment actions” claimed by McCann that omits termination as a basis for this claim. CAC fails to meet its initial burden on summary adjudication as to this issue.

The second basis for summary adjudication (issue 11) is that McCann cannot show a causal connection between protected activity and adverse employment actions. As with the previous basis for summary adjudication, the separate statement facts asserted in support of the adjudication do not address the basis for McCann’s termination. There is no negation of McCann’s termination as causally connected to McCann’s complaints, which CAC agrees constitute activity protected from retaliation under FEHA. There is also no showing that McCann cannot reasonably obtain evidence supporting retaliation, such as by an absence of facts provided in response to discovery. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854 [a defendant moving for summary judgment must present evidence, and not simply point outthat the plaintiff does not possess, and cannot reasonably obtain, needed evidence].) CAC fails to meet its initial burden on summary adjudication as to this issue.

The third basis for summary adjudication (issue 12) is that McCann cannot establish adverse employment actions were anything other than for legitimate non-retaliatory reasons. In support of this adjudication, CAC includes separate statement facts for which there are triable issues of fact relating to McCann’s termination, as discussed above (e.g., DSS, fact 33). These triable issues of fact preclude summary adjudication on this issue.

Because all grounds for summary adjudication of the fourth cause of action are precluded by triable issues of fact or for failure to meet the initial burden, the motion for summary adjudication as to the fourth cause of action will be denied.

(5) Whistleblower Retaliation

McCann’s fifth cause of action is for retaliation under Labor Code section 1102.5: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (Lab. Code, § 1102.5, subd. (b).)

CAC asserts two bases for summary adjudication in its favor as to the fifth cause of action: (1) (issue 13) that there is no causal connection between McCann’s report to a state agency and the termination of her employment; and, (2) (issue 14) plaintiff cannot establish that her termination was for anything other than legitimate non-retaliatory reasons. CAC relies upon the same separate statement facts in support of both adjudications as discussed above relating to CAC’s asserted reasons for McCann’s termination. As discussed above, there are triable issues of fact as to these separate statement facts (e.g., DSS, fact 33) which preclude summary adjudication on these issues.

Because all grounds for summary adjudication of the fifth cause of action are precluded by triable issues of fact or for failure to meet the initial burden, the motion for summary adjudication as to the fifth cause of action will be denied.

(6) Wrongful Termination

McCann’s sixth cause of action is for wrongful termination in violation of public policy. CAC asserts as its sole basis for summary adjudication as to the sixth cause of action (issue 15) that McCann cannot show that her termination was substantially motivated by her race or her protected activities. CAC relies upon the same separate statement facts in support of this adjudication as discussed above relating to CAC’s asserted reasons for McCann’s termination. As discussed above, there are triable issues of fact as to these separate statement facts (e.g., DSS, fact 33) which preclude summary adjudication on this issue. Accordingly, the motion for summary adjudication will be denied as to the sixth cause of action.

(7) Intentional Infliction of Emotional Distress

McCann’s seventh cause of action is for intentional infliction of emotional distress. CAC asserts two bases for summary adjudication as to the seventh cause of action: (1) (issue 16) that McCann’s claim is preempted by the exclusive remedy of workers’ compensation; and (2) (issue 17) that McCann cannot proffer any evidence that CAC engaged in extreme and outrageous conduct within the meaning of that cause of action.

(A) Workers’ Compensation Exclusivity

CAC argues that the exclusive remedy of workers’ compensation applies to bar the seventh cause of action for intentional infliction of emotional distress. While CAC asserts this argument with one supporting separate statement fact, this argument is essentially a purely legal argument as to the viability of such a claim. Both parties cite to Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 (Cole) in support of their respective positions.

The California Supreme Court in Cole summarized its issue and holding: “The main issue presented is whether an employee may maintain a civil action in the courts for intentional infliction of emotional distress against his employer and fellow employee when the conduct complained of has caused total, permanent, mental and physical disability compensable under workers’ compensation law. We conclude that when the employee’s claim is based on conduct normally occurring in the workplace, it is within the exclusive jurisdiction of the Workers’ Compensation Appeals Board.” (Cole, supra, 43 Cal.3d at p. 151.)

The Cole court explained: “We have concluded that, when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability. The basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment [citations], and when the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied. (Cole, supra, 43 Cal.3d at p. 160.)

Cole does not address the issue of claims coming within the scope of FEHA. There is no essential dispute that FEHA and other statutory claims asserted here are not barred by the exclusive remedy of workers’ compensation. (See City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480 [emotional distress arising from FEHA claim not barred by workers’ compensation].) The issue presented in this motion is whether the cause of action for intentional infliction of emotional distress arising from discrimination claims is subject to the workers’ compensation bar.

CAC also cites Shoemaker v. Myers (1990) 52 Cal.3d 1 (Shoemaker). In Shoemaker, the California Supreme court addressed the following issue: “This case presents the question whether the exclusive remedy provisions of the workers’ compensation law bar other civil claims for damages arising from wrongful employment termination, where the complaint includes allegations of physical disability resulting from the termination.” (Id. at p. 7.) In Shoemaker, the plaintiff had been an investigator for the Department of Health Services with an exemplary employment record up to the time of his termination. (Ibid.) The plaintiff investigated impropriety in the operation of certain health centers and filed a report concluding not only that impropriety was occurring but that high Department of Health Services personnel had improperly approved funding for the centers knowing of the centers’ illegal practices. (Id. at pp. 7-8.) The plaintiff thereafter was threatened, intimidated, and harassed. (Id. at p. 8.) After a further incident, the plaintiff was terminated, although he later won reinstatement by the State Personnel Board. (Ibid.)

The plaintiff in Shoemaker filed a civil action asserting causes of action including wrongful termination and intentional infliction of emotional distress. (Shoemaker, supra, 52 Cal.3d at p. 10.) The trial court sustained a demurrer to all causes of action of the plaintiff’s complaint. (Id. at pp. 10-11.) Applying Cole, the Court of Appeal affirmed, among other things, the dismissal of the cause of action for intentional infliction of emotional distress on the basis of the workers’ compensation bar. (Id. at pp. 11-12.) The California Supreme Court affirmed as to the distress claim with the following analysis:

“To the extent plaintiff purports to allege any distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy, but rather directed at the intentional, malicious aspects of defendants’ conduct (‘ “to cause [plaintiff] as much grief as possible” ’), then plaintiff has alleged no more than the plaintiff in Cole …, i.e., that the employer’s conduct caused him to suffer personal injury resulting in physical disability. Cole therefore controls. The kinds of conduct at issue (e.g., discipline or criticism) are a normal part of the employment relationship. Even if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.” (Shoemaker, supra, at p. 25.)

Cole and Shoemaker demonstrate that intentional infliction of emotional distress cases that are based upon ordinary workplace activity, including discipline or criticism, are barred by workers’ compensation exclusivity. However, the Supreme Court has elaborated on what falls outside workers’ compensation exclusivity: “The workers’ compensation law applies to employee injuries ‘arising out of and in the course of the employment’ when the statutorily specified ‘conditions of compensation concur.’ [Citation.] Generally, it is the exclusive remedy for such injuries. [Citation.] But some claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers’ compensation law. [Citation.] Thus, such claims may be the subject of both workers’ compensation proceedings and civil actions.” (Claxton v. Waters (2004) 34 Cal.4th 367, 372-373.)

As a consequence, the current state of the law, which is extensively documented but curiously not cited by either party, is that “unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers’ compensation exclusivity.” (Light v. Department of Parks & Recreation, supra, 14 Cal.App.5th at p. 101.) There is therefore no basis for summary adjudication of this cause of action on the grounds of workers’ compensation exclusivity.

(B) Outrageous Behavior

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)

CAC’s second basis for summary adjudication of the seventh cause of action is that McCann cannot demonstrate that CAC engaged in extreme and outrageous behavior. In support of this basis for summary judgment, CAC asserts multiple separate statement facts which have been discussed above and for which there are triable issues of fact (e.g., DSS, fact 33). The existence of triable issues of fact preclude summary adjudication on this basis.

Because all grounds for summary adjudication of the seventh cause of action are precluded by triable issues of fact or for failure to meet the initial burden, the motion for summary adjudication as to the seventh cause of action will be denied.

(8) Punitive Damages

Finally, as its issue 18, CAC moves for summary adjudication of the prayer for punitive damages on the ground that McCann cannot establish by clear and convincing evidence that an officer, director, or managing agent of CAC engaged in malice, oppression, or fraud. CAC relies upon the same separate statement facts in support of this adjudication as discussed above and for which there are triable issues of fact (e.g., DSS, fact 33). The existence of triable issues of fact preclude summary adjudication on this basis. Accordingly, the motion for summary adjudication as to the claim for punitive damages in the complaint will be denied.

(9) Conclusion

As set forth above, all claims for summary adjudication will be denied. CAC has not established its entitlement for summary judgment. The motion for summary judgment will also be denied.

In reply, CAC has filed objections to the evidence presented by McCann. The court overrules objections 21 and 22. McCann’s deposition testimony that she could not recall specific dates is not contradicted by McCann’s declaration testimony so as to preclude consideration in the context of this summary adjudication that complaints were made prior to July 2015. (See Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522-1523 [“the cases are clear that summary judgment should not be granted on the basis of ‘tacit admissions or fragmentary and equivocal concessions’”].) It is unnecessary for the court to rule on the remaining objections. (See Code Civ. Proc., § 437c, subd. (q).)