2013-00138776-CU-OE

Elizabeth Pierce vs. California Technology Agency

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

Filed By:   Mott, Vanessa W.

***  If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 59 Undisputed Material
Facts offered by the moving defendant and/or the 5 Additional Material Facts
offered by plaintiff will be addressed at the hearing and the parties should be
prepared to point to specific admissible evidence which is claimed to show the
existence or non-existence of a triable issue of material fact.  ***

Defendant California Technology Agency, Department of Technology
Services’ (“CTA”) motion for summary adjudication of the seven (7) issues identified in
the notice of motion (which relate to the three (3) causes of action (“COA”) asserted in
the First Amended Complaint (“1AC”)) is GRANTED in part and DENIED in part, as
follows.
Moving counsel is admonished for failing to comply with CRC Rule 3.1350(b) and (h)
(requiring the issues presented for summary adjudication be set forth in the notice and
repeated verbatim in the separate statement) and Rule 3.1350(g) (requiring a single
volume of evidence, including declarations, with a table of contents when the evidence
exceeds 25 pages).

Plaintiff’s counsel is admonished for failing to comply with CRC Rule 3.1350(h)
(requiring the opposing separate statement identify the issues presented by the
moving party and also repeat not only the moving party’s material facts but also
evidence), Rule 3.1350(g) (requiring a single volume of evidence, including
declarations, with a table of contents when the evidence exceeds 25 pages) and Rule
3.1110(b)(3)-(4).

The Court considered striking both sides’ papers for their respective counsel’s failure
to comply with the Rules of Court.  Both counsel are advised that such non-compliant
papers may in the future be stricken.

This litigation arises out plaintiff’s employment with CTA, where she held various
positions over many years before ultimately leaving CTA in April 2012. (1AC, ¶¶9-20.)
In pertinent part, plaintiff alleges she began experiencing harassment and a hostile
work environment in or about March 2008. (1AC, ¶14.)  According to the complaint,
plaintiff was transferred in or about January 2011 to a different division of CTA where
she “essentially had no duties” and was “essentially told” by the males in this new
division to sit in her cubicle waiting for them to speak with her. (1AC, ¶18.)  While
waiting for her management skills to be needed, plaintiff alleges the following “gender-
based harassment at the hands of her male co-workers”:

Being forced to work with male employees who had documented histories of
harassing females in the workplace;
Being forced to work alongside males who, mysteriously, had knowledge of
plaintiff’s extremely personal, private information in her Fitness For Duty
evaluation;
Being subjected to a male co-worker’s comments about her breasts; being
forced to work with another male who had made sexually-charged comments
about his “banana” to a female student assistant; and
Being forced to interact with an ex-convict who claimed to know plaintiff’s late
husband. (1AC, ¶20.)

Plaintiff further alleges she had no reasonable choice but to resign from CTA in April
2012. (1AC, ¶20.)  Plaintiff filed an administrative complaint with the DFEH on or about
8/2/2012 and commenced the present civil action on 1/22/2013.  The 1AC was filed on
5/30/2013 and alleges three (3) COA for sexual harassment/hostile work environment,
failure to prevent harassment and retaliation.

CTA now seeks summary adjudication of each causes of action on multiple grounds
set forth below.  In support of the motion, CTA offers a total of 59 Undisputed Material
Facts (“UMF”).

Plaintiff opposes the motion arguing that eight (8) of CTA’s UMF are disputed and she
also offers five (5) Additional Material Facts (“AMF”) of her own in an attempt to show
a triable issue of material fact which precludes summary adjudication here. Request for Judicial Notice

Both sides’ requests for judicial notice are unopposed and are therefore granted.

Objections to Evidence

Plaintiff filed no written objections to evidence.

CTA’s written objections to plaintiff’s evidence in opposition (including those to the
entirety of the deposition transcripts obtained in plaintiff’s separate lawsuit against CTA
employee Coleman (Sacramento Superior Court Case No. 34-2012-00119147) are
SUSTAINED.

The Parties’ Respective Burdens of Production Under §473c(p)(2)

Under Code of Civil Procedure §437c(p)(2), CTA bears the initial burden to produce
admissible evidence which demonstrates that plaintiff cannot prove one or more prima
facie elements of her three COA or there is a complete defense thereto such that CTA
is entitled to judgment as a matter of law on those COA.  Unless this initial burden is
met, plaintiff need not produce any evidence purporting to show a triable issue of fact
in order to defeat summary adjudication here.

Coupled with plaintiff’s own failure to argue, or to even suggest, that CTA’s moving
papers failed to satisfy its initial burden of production with respect to any of seven (7)
issues identified in the notice of motion, this Court holds that except as to Issue Seven
CTA’s moving papers do satisfy its initial burden of production with respect to all seven
of the issues presented for summary adjudication.  Thus, except on Issue Seven, CTA
has successfully shifted to plaintiff the burden to produce admissible evidence which is
sufficient to establish the existence of at least one triable issue of material fact with
respect to that specific issue posed for summary adjudication.

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1  COA for Sexual Harassment/Hostile Work Environment

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Issue One.  CTA seeks summary adjudication of the 1   COA on the ground that the
harassing conduct plaintiff complains of was neither severe nor pervasive and is
therefore not actionable.  In support of its motion for summary adjudication on this
ground, CTA offers UMF Nos. 1-34.  In response, plaintiff contends that UMF Nos. 2,
4, 6, 20 and 34 are disputed but after careful examination of the admissible evidence
cited by plaintiff the Court finds that plaintiff has failed to carry her burden of showing a
triable issue of material fact relative to any of these UMF.

UMF 2 states that plaintiff transferred to CTA’s Operations Division Main Frame
Operations Center (“MFO”) in February 2011, where she worked until her retirement
on April 2, 2012.  The opposition asserts that this UMF is disputed because plaintiff
was actually “demoted,” not merely transferred to MFO.  However, plaintiff has failed to
show a triable issue of material fact with respect to UMF 2 for several reasons.  First,
CTA’s objections to the evidence cited by plaintiff in response to UMF 2 have been
sustained, including those directed at the entirety of the deposition testimony obtained
by plaintiff in her separate lawsuit against CTA employee Coleman (Sacramento
Superior Court Case No. 34-2012-00119147).  Second, plaintiff’s herself alleged in the
1AC she was “transferred” to MTO in early 2011. (1AC, ¶18 [“In or around January  2011,…, CTA transferred Plaintiff to the Security Management Division…” (Emphasis
added)].)  Third, any alleged demotion would not be actionable as under a theory of
sexual harassment/hostile work environment, the sole COA targeted by Issue One, but
rather under either a discrimination or retaliation theory.  Fourth, this alleged demotion
would not appear to be actionable under the FEHA since because it occurred more
than one year before plaintiff filed her administrative complaint with DFEH on 8/2/2012.
(See, Gov. Code §12960.)  Thus, the Court can find no triable issue of material fact
with respect to UMF 2.

UMF 4 asserts that between February 2011 and April 2012 (when she resigned),
plaintiff experienced one incident of sexual harassment.  This UMF is explicitly
supported by the evidence cited by CTA, plaintiff’s own deposition testimony, but the
opposition attempts to show a triable issue of material fact here by offering nothing
more than her own declaration which contradicts her prior unequivocal testimony that
she experienced only one alleged incident of sexual harassment between February
2011 and April 2012. (Pl. Depo., p.43:18-p.44:12.)  However, attempting to create a
triable issue in this manner is not permitted under California law (see, D’Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22) and thus, CTA’s objection on
this ground has been sustained. (See, Obj. No. 13.)  Moreover, CTA’s other objections
to plaintiff’s declaration wherein she avers she was subjected to “harassment,”
“discrimination” and other “unpleasant” conduct have also been sustained on various
grounds.  Therefore, plaintiff failed to show a triable issue of material fact relative to
UMF 4.

UMF 6 states that plaintiff herself described Mr. Radenz (who committed the one
alleged act of harassment noted in UMF 4) as “gentle” and “easy-going.”  Plaintiff
insists UMF 6 is disputed but as with UMF 4, the sole evidence cited is her declaration.
Because as noted above plaintiff may not create a triable issue by providing a
declaration which purports to contradict her explicit deposition testimony and because
CTA’s other objections to plaintiff’s evidence have been sustained, plaintiff has failed
to present any admissible evidence but even if the cited evidence were admissible,
none of the evidence actually shows a triable issue of material fact relating to UMF 6.

UMF 20 asserts that while plaintiff was fearful Mr. Radenz might talk to her again in an
offensive fashion, she never feared for her physical safety because Mr. Radenz was
“gentle” and “easy going.”  Although the opposition characterizes UMF 20 as disputed,
it is explicitly supported by plaintiff’s own deposition testimony. (Pl. Depo., p.34:23-
p.36:5.)  The sole evidentiary basis for disputing UMF 20 was again plaintiff’s own
declaration which again attempts to contradict her prior unequivocal testimony about
Mr. Radenz nature and the fact she was not fearful of any physical assault by him.  As
noted above, the D’Amico decision precludes the use of a contradictory declaration to
dispute a material fact but regardless, the cited portion of plaintiff’s declaration does
not actually show any triable dispute regarding UMF 20.

Finally, UMF 34 (awkwardly) states that plaintiff does not have any evidence to support
her claims that her vague, generalized allegations about her work environment were
based on her gender other than referring to three other women who also worked at
CTA.  According to the evidence cited by CTA, plaintiff testified that CTA’s attorney
should speak to the three other women who allegedly experienced the same conduct
in order to determine whether the conduct was actually motivated by their gender and
that otherwise, she has no evidence to support this allegation. (Pl. Depo., p.98:14-19;
p.119:21-24; p.121:4-6.)  The opposition contends UMF 34 is disputed but the only  evidence she cited is, again, her own declaration and specifically, Paragraphs 20-22.
However, CTA’s objections to the bulk of this evidence have been sustained and the
limited portions to which no objections were asserted fail to show any triable issue of
material fact since none of these portions provide any evidence from which a factfinder
could infer the alleged conduct was motivated by plaintiff’s gender.  To be clear, since
CTA met its initial burden with respect to Issue One, plaintiff is obligated to produce
admissible evidence which shows a triable issue of material fact relative to UMF 34
and is not permitted merely to refer to witnesses who may have evidence which shows
a triable issue.  Since plaintiff merely did the latter, the Court can find no triable issue
of material fact in connection with 34 either.

Finding no triable issue of material fact relative to UMF Nos. 1-34 which were offered
by CTA in support of summary adjudication of Issue One, the Court now considers the
five (5) AMF offered by plaintiff.  AMF 1 essentially asserts that prior to plaintiff’s
transfer to MFO in early 2011, she was subjected to a hostile working environment at
CTA and like the opposition’s response to virtually all of CTA’s UMFs which plaintiff
contends are disputed, the sole evidence cited by plaintiff in support of AMF 1 is her
own declaration.  However, after sustaining CTA’s various objections to several cited
portions of plaintiff’s declaration, none of the remaining cited portions of this
declaration includes facts on which a reasonable factfinder could conclude there was
any actionable harassment/hostile work environment.  Moreover, although CTA did not
base the present motion on any statute of limitations ground, all of the conduct
encompassed by AMF 1 occurred more than 12 months prior to plaintiff’s DFEH
administrative complaint filed on 8/2/2012 and would therefore appear to be barred by
the statute of limitations set forth in Government Code §12960.  Accordingly, AMF 1
does not create any triable issue of material fact relative to Issue One.

AMF 2 claims that plaintiff’s transfer to MFO in early 2011 was actually a “demotion”
since she had no real job duties and no real advancement opportunities.  In short, this
AMF is effectively the same as plaintiff’s own response to CTA’s UMF 2 and plaintiff
cites the same evidence as her response to UMF 2.  Consequently, after excluding
that evidence to which objections were sustained, the Court finds that AMF 2 does not
include admissible evidence which establishes a triable issue of fact which precludes
summary adjudication of Issue One for the same four (4) independent grounds
discussed above in connection with CTA’s UMF 2.

AMF 3, also relating to events occurring prior to plaintiff’s transfer to MFO in early
2011, insists that plaintiff was treated differently after complaining about what she
believed was harassment by co-workers.  Aside from the Court sustaining CTA’s
various objections to the evidence cited by plaintiff (again, solely her declaration), AMF
3 bears only on plaintiff’s retaliation COA and therefore does not preclude summary
adjudication of the sexual harassment/hostile work environment COA at the heart of
Issue One.

AMF 4 contends the work environment prior to plaintiff’s transfer to MFO in early 2011
was unpleasant and included favoritism and retaliation.  Even if CTA’s various
objections to virtually all of the cited evidence were not sustained, the mere fact the
workplace was unpleasant and/or included favoritism does not without more rise to the
level of actionable hostile work environment particularly where there is otherwise no
admissible evidence such conduct was not motivated at least in part by plaintiff’s
gender.  Consequently, AMF 4 does not raise a triable issue of material fact in
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connection with the 1   COA for sexual harassment/hostile work environment.
AMF 5 asserts that one of plaintiff’s co-workers (Ms. Haase) testified in plaintiff’s other
action (Sacramento Superior Court Case No. 34-2012-00119147) she “is very
concerned about retaliation taken against her for testifying about the working
conditions…”  Aside from this AMF appearing to relate only to events occurring before
plaintiff’s transfer to MFO in early 2011, CTA’s objections to the entirety of the cited
testimony have been sustained and this alone precludes AMF 5 from creating a triable
issue of material fact.  But even if the evidence cited by plaintiff were admissible, AMF
5 by its own terms has no bearing on the sexual harassment/hostile work environment
COA.  Therefore, AMF 5 does not raise a triable issue of material fact which defeats
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summary adjudication of Issue One relative to the 1   COA.

Finding no dispute over CTA’s UMF Nos. 1-34 or plaintiff’s AMF Nos. 1-5, the Court
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grants summary adjudication of the 1   COA on the ground plaintiff has failed to
present admissible evidence of severe or pervasive harassing conduct.

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Issue Two.  CTA also seeks summary adjudication of the 1   COA on the ground that
plaintiff cannot show actionable hostile work environment sexual harassment because
the conduct she complains of was not based on her gender.  In support of its motion
for summary adjudication on this ground, CTA offers UMF Nos. 35-36 only.  In
response, plaintiff contends that UMF 36 is disputed but as shown below, plaintiff has
failed to carry her burden of showing a triable issue of material fact on Issue Two.

UMF 36 is essentially the same as UMF 34, which was discussed above, and plaintiff’s
response to UMF 36 is the same, including the evidence she cited (solely her own
declaration).  Consequently, for the reasons discussed above relative to UMF 34, the
Court finds that plaintiff has not established with admissible evidence any triable issue
of fact in connection with CTA’s UMF 36.

Similarly, for the reasons cited above in connection with Issue One, plaintiff’s own five
AMF do not show any triable issue of material fact in connection with Issue Two which
is also directed solely at the COA for sexual harassment/hostile work environment.

Finding no dispute over CTA’s UMF Nos. 35-36 or plaintiff’s AMF Nos. 1-5, the Court
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also grants summary adjudication of the 1   COA on the ground plaintiff has failed to
present admissible evidence of conduct being motivated by plaintiff’s gender.

Failure To Prevent Harassment

Issue Three.  CTA seeks summary adjudication of the 2nd COA for failure to prevent
harassment on the ground that plaintiff cannot establish the underlying sexual
harassment.  In support of its motion for summary adjudication on this ground, CTA
again offers UMF Nos. 1-34.  In response, plaintiff contends that UMF Nos. 2, 4, 6, 20
and 34 are disputed but as explained above in connection with Issue One, plaintiff has
failed to present admissible evidence (in response to CTA’s UMF and/or in support of
plaintiff’s own five (5) AMF) which shows a triable issue of material fact relative to the 2
nd COA.  Therefore, summary adjudication is granted as to Issue Three.

Issue Five.  CTA also seeks summary adjudication of the 2nd COA on the ground that
CTA had adequate anti-harassment policies in place and that its subsequent
investigation actions stopped the alleged harassment from reoccurring.  In support of
summary adjudication on this ground, CTA cites UMF Nos. 37-48.  Interestingly,
plaintiff “disputes” none of these 12 UMF offered by CTA in support of Issue Five and
thus, the only substantive question here is whether any of plaintiff’s five (5) AMF
creates a triable issue of material fact relative to the failure to prevent COA.  As
discussed above in connection with Issue One, the Court finds that the admissible
evidence cited in support of plaintiff’s five AMF is insufficient to establish the existence
of any triable issue of material fact on this COA and thus, summary adjudication is also
granted on Issue Five.

Issue Four.  Having granted summary adjudication of the 2nd COA on two separate
and independent grounds, the Court need not address Issue Four which seeks
summary adjudication of the 2nd COA on yet another basis.

Retaliation

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Issue Six.  CTA seeks summary adjudication of the 3   COA for retaliation on the
ground that plaintiff suffered no actionable adverse employment action.  In support of
summary adjudication on this ground, CTA offers UMF Nos. 49-59.  In response,
plaintiff contends that UMF Nos. 49 and 56 are disputed but after careful examination
of the admissible evidence cited by plaintiff the Court finds that plaintiff has failed to
carry her burden of showing a triable issue of material fact relative to either UMF.

UMF 49 states that plaintiff’s pay was not affected in any way and did not change while
in MFP, nor was she demoted.  This UMF is specifically established by plaintiff’s own
deposition testimony but the opposition disputes it, citing plaintiff’s own declaration and
the deposition testimony of Mr. Benedetti in plaintiff’s other action.  However, CTA’s
objections to much of plaintiff’s declaration and all of the cited Benedetti deposition
testimony have been sustained, with the remaining portions of plaintiff’s declaration
which were cited in response to UMF 49 showing no material conflict with UMF 49.  As
such, plaintiff has failed to show with admissible evidence any triable issue of material
fact in connection with UMF 49.

UMF 56 is essentially the same as UMF 34, which was discussed above in connection
with Issue One, and plaintiff’s response to UMF 56 is the same as to 34, including the
evidence on which she bases her response to each (solely her own declaration).
Since CTA’s objections to the bulk of the cited portions of the declaration have been
sustained and since plaintiff otherwise failed to present admissible evidence which
shows a triable issue of material fact in connection with UMF 56 (but instead refers to
three potential witnesses who may testify in plaintiff’s favor), the Court can find no
triable issue relative to UMF 56.

Finding no triable issue of material fact relative to UMF Nos. 49-59 which were offered
by CTA in support of summary adjudication of Issue Six, the Court now considers
whether any of the five (5) AMF offered by plaintiff may create a triable issue of fact
bearing on the question of whether plaintiff suffered any actionable adverse
employment action.  AMF 1 does not bear on the question of adverse action while
AMF Nos. 2 and 5, as explained above, are not supported by any admissible evidence.
Similarly, AMF 4 does not show any triable issue because the only admissible portion
of the cited evidence has no relevance to adverse action.  However, the Court finds
that AMF 3 and the evidence cited in support thereof to which no objections were
made, particularly when construed liberally (see, e.g., DiLoreto v. Bd. of Education
(1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903),
is sufficient to create at least one triable issue of material fact which precludes
summary adjudication of the retaliation COA.  More specifically, although plaintiff’s title
and pay not have been changed, actionable adverse action may include a much
broader array of conduct given the California Supreme Court has held “the phrase
‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a
reasonable appreciation of the realities of the workplace in order to afford employees
the appropriate and generous protection against employment discrimination that the
FEHA was intended to provide.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th
1028, 1053-1054.)  Accordingly, in light of this triable issue of material fact relating to
the question of whether plaintiff suffered any adverse action, summary adjudication
must be and hereby is denied as to Issue Six.

It is worth noting here that it does appear that all of the allegedly retaliatory conduct
encompassed by AMF 3 (and AMF 4) occurred more than 12 months prior to plaintiff’s
DFEH administrative complaint filed on 8/2/2012 and may well be barred by the statute
of limitations set forth in Government Code §12960 but CTA has here not sought
summary adjudication on such ground.

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Issue Seven.  CTA seeks summary adjudication of the 3   COA for retaliation on the
ground that plaintiff cannot show she engaged in “protected activity.”  In support of
summary adjudication on this ground, CTA again offers UMF Nos. 1-34.  As explained
above, these 34 UMF are sufficient to establish that plaintiff suffered no actionable
sexual harassment/hostile work environment at least when working at MFO in 2011-
2012 but these same facts fail to affirmatively establish that plaintiff engaged in no
“protected activity” which could give rise to a valid retaliation claim.  To be clear, a
complaint about conduct reasonably believed to be harassment constitutes “protected
activity” even if the conduct complained of does not rise to the level of actionable
harassment. (Yanowitz, at 1044 [employee conduct is protected as long as employee
had reasonable, good faith belief employer’s practice was unlawful].)  Thus, the mere
fact plaintiff suffered no actionable harassment does not, without more, establish she
did not engage in any “protected activity” which could support her 3rd COA for
retaliation.  For these reasons, the Court holds that CTA failed to carry its initial burden
of production under Code of Civil Procedure §437c(p)(2) and summary adjudication on
this final ground of no “protected activity” must be denied without regard for the
evidence, if any, offered by plaintiff in opposition.

Conclusion

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In light of the foregoing, summary adjudication is hereby granted as to the 1   and 2
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COA but denied as to the 3   COA.  Because summary adjudication is not granted as
to all COA, CTA’s alternative motion for summary judgment must be denied.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, counsel for
CTA to prepare a formal order.