Case Number: BC511837    Hearing Date: September 12, 2014    Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

Cervantes v. Pacific Blue Garment Solutions, Inc., et al. (BC511837)

Counsel for defendants/moving party: Miles Carlsen (Carlsen Law)
Counsel for plaintiff/opposing party: A. Jacob Nalbandyan (Employees’ Legal, etc.)

TENTATIVE RULING:
Grant as to the 7th cause of action; deny as to all others.

Defendants’ evidentiary objections:
Sustain nos. 5-11, 14-24; overrule all others.

DISCUSSION

Failure to Exhaust Administrative Remedies
Plaintiff has put forth evidence consistent with the response that she retained counsel to initiate this action on her behalf. The reply concedes this issue based on Plaintiff’s declaration. Summary adjudication of this issue is denied.

1st cause of action – Quid Pro Quo Harassment
Plaintiff alleges this cause of action against both Defendants. She alleges she began working for Pacific Blue in July 2011 as a Customer Service Representative. (FAC ¶20.) Plaintiff alleges Defendant Machluf was her supervisor. (FAC ¶23.) She alleges she was harassed by a co-worker, Nir Mahzir, who became verbally aggressive when Plaintiff rejected his offer to go out with him. (FAC ¶22.) Plaintiff informed her supervisor, Defendant Machluf and the owner of Defendant Pacific Blue, Dotan Shoham. (FAC ¶23.) Plaintiff alleges that thereafter, Mahzir began engaging in a campaign aimed at interfering with her job. (FAC ¶25.) She alleges Defendant Machluf knew of this conduct and did nothing in response, instead joining in the harassment. (FAC ¶26.) Specifically, she alleges Machluf propositioned Plaintiff and offered her money for sex. (FAC ¶¶27-29.) She also alleges that Defendant Pacific Blue created a hostile work environment by exhibiting favoritism toward female employees who succumbed to sexual advances. (FAC ¶41.)

Defendant challenges this cause of action by arguing, “[t]he undisputed material facts established by Plaintiff’s deposition testimony show that Plaintiff cannot prove quid pro quo sexual harassment.” (Motion p. 5:5-6.)

To establish quid pro quo sexual harassment, one must allege (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) the alleged harasser was defendant’s supervisor or agent; (4) that person engaged in unwanted sexual harassment of plaintiff (e.g., sexual propositions, unwarranted graphic discussion of sexual acts, or sexual commentary about the employee); (5) an employment term, expressly or impliedly, by words or conduct, was conditioned upon acceptance of a superior’s unwelcome sexual advances or conduct; (6) an employment decision regarding plaintiff was based upon rejecting or accepting the advances or conduct; and (7) harm caused to the plaintiff. (Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.)

An employer may be strictly liable for harassment of an employee by an agent or supervisor. (State Dept. of Health Services v. Sup. Ct. (2003) 31 Cal.4th 1026, 1034.) Under FEHA, a “supervisor” is one having authority to hire, promote, transfer, or discharge employees, or the responsibility to direct their daily duties. (Govt. Code §12926(r).) “The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1419-20; Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 (“When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action.”).)

Defendant makes only one reference to case law. (Motion p.4:20-22.) The motion relies primarily on reciting the facts, as testified to by Plaintiff to argue Plaintiff cannot demonstrate an employment term, expressly or impliedly, by words or conduct, was conditioned upon her acceptance of either Mahzir or Machluf’s unwelcome sexual advances or conduct. Regarding the alleged harassment by Mahzir, Plaintiff testified that on one occasion, she was leaving work early because she did not feel well and Mahzir asked her “oh, do you want to go to a hotel?” (Carlsen Decl. Ex. A pp. 88:25-89:20, 90:8-13.) Plaintiff responded in the negative and testified she felt very offended by Mahzir’s question. (Carlsen Decl. Ex. A p. 93:2-7.) Plaintiff testified Mahzir did not explicitly ask her to have sex with him, but she did not know why else he would have asked her to go to a hotel. (Carlsen Decl. Ex. A pp. 90:14-91:17.) After Plaintiff’s response, Mahzir walked away and after this incident, he never again asked her to go to a hotel room with him and Plaintiff testified there were no other incidents of sexual harassment by Mahzir. (Carlsen Decl. Ex. A pp. 93:10-24, 107:7-9, 115:2-5.) Plaintiff complained to her supervisor, Defendant Machluf and also to Dotan Shoham, the owner of Defendant Pacific Blue. (Carlsen Decl. Ex. A pp. 104:19-106:24.)

Regarding Defendant Machluf, Plaintiff testified that on three distinct occasions, Defendant propositioned her for sex. Specifically, he offered her $500 for sexual favors, indicating he knew she was a single mother and needed the money. (Carlsen Decl. Ex. A pp.115:6-16; 116:1-9; 117:1-120:17.) She further testified that beyond these three incidents, Machluf did not engage in any other conduct Plaintiff considered to be sexually harassing. (Carlsen Decl. Ex. A p. 120:18-21.) Subsequently, Plaintiff continued to work with Machluf and indicated they had a cordial relationship. (Carlsen Decl. Ex. A p. 121:7-18125:4-11.) Plaintiff again testified that other than the one incident with Mahzir and the three incidents with Machluf, no other incidents of sexual harassment occurred. (Carlsen Decl. Ex. A pp. 126:22-127:2.)

While Defendant argues Plaintiff cannot demonstrate that some term of her employment was premised on submission to these sexual advances, the motion ignores the allegations that due to her refusal to engage in sexual activity, Plaintiff endured reprimands that other employees did not. Plaintiff’s complaint alleges “Pacific Blue’s employment decisions affecting Plaintiff, including but not limited to Defendant Pacific Blue’s failure to grant Plaintiff raises, were made based on Plaintiff’s acceptance or rejection of Nir Mahzir’s and Defendant Ami Machluf’s sexual advances on conduct.” (¶42.) Neither the motion nor the deposition testimony cited directly addresses this issue. On this basis, the Court finds that Defendants have failed to meet their burden.

In reply, Defendant has improperly lodged new evidence- additional portions of Plaintiff’s deposition transcript to argue Machluf was not her supervisor. The issue of who served as Plaintiff’s supervisor was not raised in the original motion and in any event, the Machluf deposition, as compared with Plaintiff’s declaration indicates a dispute on this point. (Cervantes Decl. ¶2; Nalbandyan Decl. Ex. B. p.19:19-24.)

Even assuming Defendants have met their burden, Plaintiff argues that she was subjected to quid pro quo sexual harassment, offering in her opposition a narrative, failing to cite any evidence. (See Oppn. pp. 9:25-10:10.) Plaintiff’s argument appears to be that following her rejection of Mahzir and Machluf’s propositions, she was subjected to increasingly hostile working conditions. The evidence relied on is primarily Plaintiff’s deposition testimony and her own declaration. Plaintiff’s primary point appears to be that she was subjected to sexual propositions and when she denied, the terms of her employment changed. In particular, she testified that after she declined Mahzir’s perceived proposition, “everything went downhill” and he began telling Plaintiff was going to have her fired. She alleges Mahzir began criticizing her work performance and he had not done so before she rejected him. (Nalbandyan Decl. Ex. A. pp. 95:20-96:9.) She testified the criticism occurred daily. (Nalbandyan Decl. Ex. A. pp. 134:22-135:8.) She also testified Mahzir threatened to fire her and he was possibly “in [Machluf’s] ear” telling Machluf to terminate Plaintiff. (Nalbandyan Decl. Ex. A. pp. 52:10-53:10.) She speculated that Machluf might get tired of hearing Mahzir “just like everyone else would get tired of listening” to him, but Machluf never threatened to fire her. (Id.) Lastly, she testified they displayed favoritism to Carmen Barajas, who allegedly had a relationship with Machluf. (Nalbandyan Decl. Ex. A. pp. 145 – 148.)

Summary adjudication of the first cause of action is denied.

2nd cause of action – Hostile Work Environment Based on Sex/Gender

Plaintiff relies essentially upon the same facts alleged in the first cause of action, maintaining that Mahzir and Machluf severely and pervasively engaged in unwelcome sexual overtures, sexual advances, and unwanted verbal conduct of a sexual nature. (FAC ¶59.) She again raises the allegations that Defendant displayed favoritism toward female employees who succumbed to sexual advances. (Id.) Defendant challenges this cause of action on grounds the incidents on which Plaintiff relies do not amount to severe and pervasive sexual harassment.

To plead and prove a cause of action for hostile work environment harassment, one must establish (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. (Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 202-03.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) The elements of severe or pervasive harassment unreasonably interfering with work performance are assessed from the perspective of a reasonable person of the protected class of the plaintiff. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 877.) “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.” (Dee v. Vintage Petroleum (2003) 106 Cal. App. 4th 30, 36. [Emphasis added.].)

Again, Defendants rely on Plaintiff’s deposition testimony to support its argument that Plaintiff cannot meet her burden. In addition to the sexual advances described above, Plaintiff also testified that “from time to time” Defendant Machluf made sexual jokes (Carlsen Decl. Ex. A p. 141:3-14.) Additionally, she testified that on “many” occasions, an employee named Minor made sexual jokes in front of Plaintiff. (Carlsen Decl. Ex. A pp. 155:15-23, 156:5-13.) This employee was a dye master and Plaintiff testified she had to work with him on a daily basis. (Carlsen Decl. Ex. A pp. 155:24-156:3.) Plaintiff did not testify as to the substance of his jokes but did state she found them to be “very offensive” and told Minor as such. (Carlsen Decl. Ex. A p. 156:14-17.) She also testified she complained to Machluf and Carmen Barajas, prompting Minor to stop making sexual jokes. (Carlsen Decl. Ex. A pp.156:18-23.) Plaintiff indicates no one other than Minor made any sexual jokes (Carlsen Decl. Ex. A pp.156:24-157:6.) While the motion does not explicitly mention it, the deposition testimony provided also indicates Machluf openly made sexual comments regarding Carmen Barajas’ body in front of Plaintiff. (Carlsen Decl. Ex. A pp. 161:22-24, 162:10-164:18.)

Substantial evidence must show a concerted, repeated, routine or generalized pattern of continuous and pervasive harassment, sufficiently pervasive to alter the conditions of employment and to create a hostile or abusive work environment, beyond just being occasional, isolated, sporadic, or trivial. (Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1366.) “‘[H]arassment 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.’” (Hope v. Cal. Youth Authority (2005) 134 Cal.App.4th 577, 588.) A “ ‘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 [he] was actually offended.’ ” (Id.) To show a hostile work environment based upon conduct directed at others, “plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it.” (Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 285 n. 7 (expressly not reaching correctness of case, Beyda v. City of L.A. (1998) 65 Cal. App. 4th 511, 519 (holding that knowledge of others’ harassment need not have been based on personal observations)). [Emphasis added.].)

Defendant takes the position that Plaintiff’s deposition testimony reveals nothing more than a series of isolated incidents which do not rise to the necessary level of pervasiveness. Defendants argue the incidents alleged are nothing more than vulgar and offensive comments which are not actionable under FEHA. (See Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal. App. 4th 994, 1007-08 (“the Legislature did not enact a ‘general civility code’ when it passed the FEHA into law.” ) However, this is not clear from what Plaintiff stated in her deposition testimony. In the opposition, Plaintiff offers additional excerpts from her testimony in which she alleged Machluf made sexual jokes in front of Plaintiff and Carmen, which Plaintiff found disturbing (Nalbandyan Decl. Ex. A. p. 140:9-14.) She testified these jokes were made from “time to time” (p. 141:8-14) and while she couldn’t remember the substance of the jokes, she testified she never complained because she didn’t want to get on Machluf’s bad side as he was her supervisor (p. 140:15-141:3.) She explicitly testified that complaining of harassment by Machluf was different from complaint of harassment by Mahzir, who was merely a co-worker.

The reply focuses on a narrow portion of Plaintiff’s deposition testimony and argues her opposition cites to inapplicable case law. While the opposition and opposing separate statement do at times reference irrelevant evidence, this does not negate the fact that Defendant bears the initial burden, which the court finds has not been met as discussed above.

Summary adjudication of the second cause of action is denied.

Third cause of action – Prevent Hostile Work Environment

Plaintiff relies on the same conduct discussed above and alleges Defendant Pacific Blue knew of the harassment she endured because she informed Dotan Shoham. (FAC ¶76.) Despite notifying the owner of Defendant Machluf and Mahzir’s conduct, Plaintiff alleges Defendant failed to take reasonable corrective measures. (FAC ¶77.) This cause of action is alleged against Defendant Pacific Blue alone.

The primary argument raised by Defendant as to this cause of action is that without some actionable harassment, Defendant Pacific Blue cannot be liable for failure to prevent. However, as the Defendant has not met its burden on those two causes of action, this cause of action fails as well. Defendant also argues Plaintiff’s deposition testimony indicates that when she informed Shohman of Mahzir’s comments, Pacific Blue acted immediately, indicating it did not fail to prevent harassment. However, the motion fails to address the allegations concerning her supervisor, Machulf. Here, the opposition improperly relies on portions of Machluf’s deposition testimony to argue that Defendant continued to improperly retain Machluf despite the fact that he was convicted of a burglary. (PSS ¶80.) However, this is irrelevant to the allegations of sexual harassment. Plaintiff also briefly raises the issue that other employees had been harassed, Pacific Blue did not have an anti-harassment policy, and Machluf never received harassment training. However, many of these issues appear to go to the cause of action regarding negligent training and retention.

Based on Defendants’ failure to meet their burden, summary adjudication of the third cause of action is denied.

Fifth cause of action – National Origin, Race, and Ancestry Discrimination

Plaintiff alleges Defendants singled her out because she is Mexican and “offensive comments towards Mexicans was a common occurrence during Plaintiff’s employment…Defendant Ami Machluf would often refer to Mexicans as dirty, smelly, and hairy. When something would go wrong at work, Defendant Ami Machluf’s justification would be ‘it was because you[’re] Mexican.” (FAC ¶32.) Plaintiff also alleges that during her employment, a male employee of Israeli origin named Ofer was hired at the same skill level, to do the same job as Plaintiff but was paid more. (FAC ¶33.) Plaintiff alleges she was paid less than coworkers in the same position who were Israeli males and that Defendant Pacific Blue displayed widespread favoritism toward Israeli employees. (FAC ¶103.)

Here, Defendants challenge the two basic contentions in Plaintiff’s complaint – that offensive comments were made regarding Mexicans and that she was paid less than an Israeli coworker.

To establish that one was discriminated against on the basis of race, it must be shown that (1) the plaintiff was a member of a protected class; (2) the plaintiff was qualified for the position sought, or was performing competently in the position held; (3) suffered an adverse employment action (e.g., termination, demotion, or denial of employment); and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

“In an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.”(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Where employers present admissible proof that at least one prima facie element is lacking, or that the adverse employment action was based upon nondiscriminatory factors, employers are entitled to summary judgment, unless plaintiffs present admissible evidence showing a triable issue of material fact related to the employers’ showing. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) In moving for summary judgment, an employer satisfies its burden with evidence that a nondiscriminatory reason was the basis for employment termination. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-98.)

Regarding the racial comments and jokes, Defendant argues Plaintiff has alleged nothing more than occasional comments which are not actionable. Essentially, Defendant is arguing Plaintiff can establish nothing more than stray remarks. California courts reject the stray remarks doctrine, and instead consider such remarks with all the evidence in the record. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 539-45.) “[I]solated or stray remarks … are immaterial in proving a discriminatory motive. (Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal. App. 4th 138, 154 n.15.) Stray remarks include those “unconnected with the process of retention and termination.” (Kelly v. Stamps.com Inc. (2005) 135 Cal. App. 4th 1088, 1101.) “[A]n isolated remark by a person not involved in the adverse employment decision ‘is entitled to virtually no weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus.’” (Slatkin v. Univ. of Redlands (2001) 88 Cal. App. 4th 1147, 1160.)

Plaintiff testified that Machluf made comments that Mexicans are “dirty and smelly.” (Carlsen Decl. Ex. A pp. 63:19-64:14, 127:13-25.) However, the questioning and deposition excerpts referenced are somewhat vague and do not provide a full picture of what was said, the context, or how often such statements were made. Counsel used the phrase “occasional” but never asked Plaintiff to explain how frequently such comments were made. (Carlsen Decl. Ex. A p. 138:8-16.) Insofar as these comments might be described as racial, Plaintiff also testified that on the occasions Machluf propositioned Plaintiff for paid sex, he made comments such as “all Mexican women do it.” (Carlsen Decl. Ex. A pp. 117:1-11, 120:1-14.) In the opposition, Plaintiff offers additional pages from her deposition. She testified she felt Pacific was a racist place based on Machluf’s comments about Mexican women having sex for money and Mexicans being “dirty and smelly.” (Nalbandyan Decl. Ex. A. pp. 58:15-59:9; 127:3-128:17.) When she was asked if anything else struck her as racist, she again only relied on the above example. (Nalbandyan Decl. Ex. A. p. 63:7-17.) This does not establish that Plaintiff was not subjected to racial discrimination.

Aside from the assertion that Plaintiff has not shown discrimination, Defendants argue these facts do not demonstrate Plaintiff suffered an adverse employment action. However, the issue of adverse employment action goes to Plaintiff’s second allegation, that she was paid less than an Israeli male counterpart. Defendants rely on the declaration of Dotan Shoham, the President of Defendant Pacific Blue. (Shoham Decl. ¶1.) Shoham states Plaintiff was hired to work in the customer services department to perform clerical intake work, commensurate with the experience she identified on her job application. (Shoham Decl. ¶3, Ex. A.) By comparison, he states Ofer Goren – the employee identified in Plaintiff’s complaint – was hired to work as a “management trainee.” (Shoham Decl. ¶5.) Shoham states that based on Goren’s background and qualifications, Shoham hired him to learn all facts of Pacific’s business with the hope that he would assume a management position. (Shoham Decl. ¶7.) He states Plaintiff and Mr. Goren were paid a different wage because they were hired to perform different work. Plaintiff’s opposition does not address this issue but instead focuses on her constructive termination, which is discussed fully below. While the Defendants’ argument as to Goren is well-taken, this issue was not separately noticed. Thus, based on the analysis provided below with regard to the claim for constructive discharge, summary adjudication on the fifth cause of action is denied.

Sixth cause of action – Retaliation

Plaintiff alleges only that she was retaliated against in response to her assertion of right under FEHA. (FAC ¶114.) Presumably, the conduct at issue is that she was not paid the same as other employees she claims were similarly situated. Defendant challenges this cause of action on grounds Plaintiff has not alleged that she suffered any actionable harassment, discrimination, or an adverse employment action.

To prove a cause of action for retaliation, one must establish that (1) plaintiff engaged in a protected activity as employee; (2) employer subjected Plaintiff to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 874.) “Protected Activity” includes an employee requesting accommodation of a disability. (Wright v. CompUSA, Inc. (1st Cir.2003) 352 F.3d 472, 477-78.) “Government Code section 12940, subdivision (h) makes it unlawful for an 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.’” (McRae v. Dept. of Corrections and Rehab. (2006) 142 Cal.App.4th 377, 386.)

First, it should be noted that whether Plaintiff was subjected to harassment or discrimination has very little bearing on whether she engaged in protected activity, such that she may have a viable case for retaliation. Defendant does not argue that Plaintiff did not engage in any protected activity, but instead, that she was not discriminated against or harassed. However, to the extent harassment may constitute an adverse employment action, Defendant argues Plaintiff cannot prove harassment. Adverse employment actions can include demotions, reassignments, refusals to promote, unwarranted evaluations, tolerating harassment by coworkers, reprimands and suspensions. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1061.) In determining whether there was an adverse employment action to show discrimination or retaliation, courts look at the totality of circumstances and not just at each isolated act. (Yanowitz, supra at 1055 (“we need not and do not decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself.”).) As discussed above, this is not well taken.

Defendant also argues that based on her deposition testimony, it is clear Plaintiff did not suffer any adverse employment action. The two potentially adverse employment actions addressed by Defendant are (1) the allegations that Goren was paid more than Plaintiff for the same work and (2) that Plaintiff was constructively discharged. Plaintiff does not dispute the facts put forth regarding Goren.

As to the constructive discharge, Plaintiff alleges she was constructively discharged. (FAC ¶34.) She alleges on March 14, 2013, Machluf began screaming and cursing at her, “at which point Plaintiff could not take the harassment any longer and simply left work because of the unendurable conditions.” (Id.) In her deposition, Plaintiff testified a work meeting occurred during which her work performance was criticized (Carlsen Decl. Ex. A p. 159:11-22.) Following this meeting, Plaintiff left Pacific Blue and did not return. (Carlsen Decl. Ex. A pp. 159:23-160:2.) She indicated she felt forced to quit because of “all the harassment, all the racism, the way [she] was treated before.” (Carlsen Decl. Ex. A p. 161:10-21.) Constructive discharge is an adverse employment action. (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253.) Defendant argues that because Plaintiff cannot prove that she was subject to harassment or discrimination, she could not have been constructively discharged. However, based on the above rulings, this cause of action survives.

Summary adjudication as to the sixth cause of action is denied.

Seventh cause of action- Wage Discrimination in Violation of the Calif. Equal Pay Act

As discussed previously above, Plaintiff’s seventh cause of action is premised on the allegation that she, as a Mexican American female employee, was paid less than a male counterpart of Israeli origin. (FAC ¶126.) She alleges she and the co-workers occupied the same position for equal work, requiring equal skill, effort, and responsibility in similar work conditions. (Id.) This cause of action is pled against Defendant Pacific Blue only. Here, Defendant relies again on the Shohman declaration, which discusses the difference between the work to be performed by Plaintiff and Goren.

Labor Code §1197.5 prevents an employer from paying an employee a “wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Shoham states Plaintiff was hired to work in the customer services department to perform clerical intake work, commensurate with the experience she identified on her job application. (Shoham Decl. ¶3, Ex. A.) By comparison, he states Ofer Goren – the employee identified in Plaintiff’s complaint – was hired to work as a “management trainee.” (Shoham Decl. ¶5.) Shoham states that based on Goren’s background and qualifications, Shoham hired him to learn all facts of Pacific’s business with the hope that he would assume a management position. (Shoham Decl. ¶7.) He states Plaintiff and Mr. Goren were paid a different wage because they were hired to perform different work. Plaintiff does not challenge this evidence but instead, argues again that Defendants cannot prevail because they actually “dispute” the relevant facts. This is not sufficient to establish a triable issue.

Summary adjudication is granted as to the seventh cause of action.

Tenth cause of action – Negligent Hiring, Supervision, and Retention of Employee

Plaintiff allege Machluf and Mahzir were employees of Pacific Blue and during her employment, she made it known to Pacific Blue that Machluf and Mahzir were engaging in unwelcome sexual overtures, advances, and verbal conduct. (FAC ¶¶157-159.) Plaintiff alleges that despite being apprised of these facts, Defendant failed to take any corrective action. (FAC ¶160.)

To establish an employer’s liability for the negligent hiring, supervision, and/or retention of an employee, it must be shown that (1) the employer’s hiring, supervising, and/or retaining an employee; (2) who is incompetent or unfit; (3) employer had reason to believe undue risk of harm would exist because of the employment; and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207.) Defendant argues that, based on the facts discussed above, because Plaintiff is unable to demonstrate that she was harassed or discriminated against, she cannot prevail on this cause of action. Defendant also argues Plaintiff’s deposition testimony indicates that when she complained of offensive conduct (i.e. when she complained of Mahzir’s comments) swift action was taken. Defendant’s argument is premised on the false assumption that Plaintiff’s other claims will also fail. Further, the opposition raises the issue that it was known that another employee named Fabiola was harassed by Mahzir. (Nalbandyan Decl. Ex. A. pp. 97:13-98:13, 101:6-15.)

Summary adjudication of the tenth cause of action is denied.

11th cause of action – Wrongful Termination of Violation of Public Policy

This cause of action is premised on Plaintiff’s allegations that she was constructively discharged. This cause of action is pled against Pacific Blue.

To establish that one was wrongfully discharged, it must be shown that (1) the plaintiff’s employment was constructively terminated, as shown by: (i) the employer intentionally created, or knowingly permitted, working conditions; (ii) so intolerable or aggravated at the time of the resignation; (iii) as to which reasonable employers would realize reasonable employees in the position would be compelled to resign; and (2) in violation of a policy that is (a) delineated in either constitutional or statutory provisions; (b) public in the sense that it inures to the benefit of the public; (c) well established at the time of the discharge; and (d) substantial and fundamental; and (3) damages. (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal. App. 4th 525, 533.) “ ‘Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.’ ” (Holmes v. Petrovich Development Co. (2011) 191 Cal. App. 4th 1047, 1062.)

Defendant challenges this cause of action on grounds Plaintiff has failed to demonstrate that she was subjected to quid pro quo sexual harassment; a hostile work environment; or that she was discriminated against. However, as noted above, Defendant has not met its burden on those causes of action.

Summary adjudication as to the 11th cause of action is denied.

Unless waived, notice of ruling by plaintiff.