GLYNN FALCON v. SETH PARDEE BATES, ET AL.
Case No.: 1-12-CV-233742
DATE: June 17, 2014
TIME: 9:00 a.m.
DEPT.: 3

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4th 60, 73. The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. 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. CCP §437c(f)(1). See McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”) “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” Johnson v. American Standard, Inc. (2008) 43 Cal 4th 56, 64, parentheses added. While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. Saelzler v. Advanced Group 400 (2001) 25 Cal 4th 763, 768.

Defendants’ motion for summary judgment is DENIED for failure to meet their initial burden to establish a complete absence of triable issues of material fact as to all claims. Their alternative motion for summary adjudication of seven “issues” pursuant to CCP §437c(f) is GRANTED in part and DENIED in part as follows.

Summary adjudication of the 1st cause of action, FEHA Age Discrimination, is DENIED. To prevail on summary judgment/adjudication on such a claim, the defendant employer is “required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.” Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247. Once an employer meets its initial burden, the employee must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, thereby raising at least an inference of discrimination” in order to avoid summary judgment. Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.

Defendants have chosen to simply argue that there was a legitimate, nondiscriminatory reason for not giving Plaintiff the position he sought, his lack of “scholarly achievement.” Defendants’ evidence, particularly the Wei Declaration and its attached exhibits, is sufficient to meet their initial burden on this argument. However, when the burden shifts to Plaintiff he is able to establish that triable issues of material facts remain as to whether this stated reason was a pretext. Plaintiff has introduced evidence raising questions as to what the true qualifications are for tenure-track positions (see Ex. 43 to Plaintiff’s declaration), whether these qualifications were made clear to Plaintiff and the other finalists for the position (Plaintiff states he was not asked any questions about his “scholarly achievement”) and whether Defendants were willing to over-emphasize “scholarly achievement” over other factors as a pretext for denying Plaintiff the position and then later ignore it as a factor in order to hire a younger applicant who had no “scholarly achievement.”

Summary Adjudication of the 2nd cause of action, ADEA Age Discrimination, is GRANTED. “Sovereign immunity applies to states as well as arms of the state . . . In Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000), the Supreme Court held that ‘in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals.’ Id. at 91.” McCree v. State Dep’t of Conservation 2013 U.S. Dist LEXIS 158487 (N.D. Cal., Nov. 5, 2013).

Plaintiff misunderstands the Kimel holding. It did not merely hold that states and “arms of the state” such as CSU could not be sued in federal court under the ADEA; it held that, whatever Congress’ intention, the ADEA does not provide any constitutionally valid private right of action against States and their “arms” as a matter of law. In practical terms this costs Plaintiff nothing as the 2nd cause of action is duplicative of the 1st.

Summary Adjudication of the 3rd cause of action, Common Law Age Discrimination, is GRANTED. The individual Defendants are not Plaintiff’s employer and CSU is correct that it is generally immune from common law claims, particularly where a specific state statute (FEHA) covers the same ground and provides a private right of action. “Except as otherwise provided by statute,” a public entity “is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Gov. Code §815(a). This provision abolishes all common law or judicially declared forms of liability. Except as required by the federal or state constitutions liability must be based on a California statute. 5 Witkin, Summary of Cal. Law (10th ed., 2005) Torts §223. Government liability in California can only be based on statutes that specifically allow for it, not on common law claims. See, e.g., Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal. 4th 876, 899; Zelig v. Cnty. of Los Angeles (2002) 27 Cal. 4th 1112, 1127.

Summary Adjudication of the 4th cause of action, FEHA Retaliation, is GRANTED. Defendants are correct that the alleged facts simply do not support a claim. Retaliation under the FEHA, Gov Code §12940(h), brings the following within the definition of unlawful employment practices “For any employer, labor organization, employment agency, or person 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.” Court’s Emphasis.

This claim as alleged in the Complaint at 28-37 asserts that Plaintiff was retaliated against because he, in April 2012, “nominated two minority faculty members as candidates for the Chair position,” Complaint at 31, and “[t]hereafter, Defendants, and each of them, engaged in a concerted pattern of conduct to illegally retaliate against Plaintiff for his support of the minority candidates for the chair department . . .” Complaint at 34. Supporting minority candidates simply does not qualify as opposing “any practices forbidden under this part” or filing any complaint or testifying or assisting in a proceeding “under this part.” Plaintiff in the Complaint at 35 tries to get around this by alleging that §12940(h) “prohibits an employer from retaliating against an employee for opposing discrimination and for assisting minorities for employment opportunities.” Court’s Emphasis. This simply is not an accurate representation of the language of the statute; only retaliation for “assisting” in someone’s “proceeding under this part” could support a claim and there is no such allegation.

The decision in Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal 4th 1028, cited in the Opposition, does not help Plaintiff. The Court there stated (at 1043): “It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.” Again, nominating minority candidates for the Dept. chair position does not qualify as complaining about or opposing perceived violations of FEHA, and Plaintiff nowhere alleges that his “confidential negative evaluation” of Bates’ performance as Dept. Chair had anything to do with Bates’ alleged discriminatory conduct towards Plaintiff or anyone else; it was made as part of a regular confidential review of the Chair by the faculty. See Complaint at 29.

Summary Adjudication of the 5th cause of action, “Retaliatory Actions,” is DENIED for failure to meet the initial burden. Defendants’ argument that this is a duplicate FEHA claim is unreasonable even if it is true that the alleged retaliatory timing of the announcement that none of the finalists would be given the position does not qualify as a FEHA violation. While not labeled as such, this cause of action also alleges a defamation as Plaintiff argues in opposition. “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” Wong v. Jing (2010) 189 Cal App 4th 1354, 1369.

This claim as alleged in the Complaint at 38-49 is based not only on: 1) the allegation that the announcement that none of the finalists would be getting the faculty-track position was somehow timed to embarrass Plaintiff, but also on: 2) the allegation that Bates in May 2011 sent “a rambling three-page 3 a.m. email” to Plaintiff “and to other aviation faculty accusing plaintiff of undermining his position and causing an aviation student insurrection against his unilateral decision to relocate the Spring Aviation ceremony from the newly dedicated aviation campus at Reid-Hillview Airport to the COE building. . . . The accusations of Bates were defamatory per se because they accuse plaintiff of unethical, fraudulent and criminal conduct and tend to injure plaintiff in respect to his teaching profession, office and business by imputing to him disqualifying conduct in respect of which plaintiff’s occupations require. Bates thereafter continuously and repeatedly engaged in a pattern of published statements defamatory to plaintiff and published to countless others via electronic mail. . . . Before Bates’ defamatory statements Plaintiff had enjoyed a good reputation generally and in his occupation, and was well respected by the aviation student body. . . . Defendants SJSU and Board were aware of, allowed and condoned the aforesaid statements of Bates and let Bates publish such statements in his official and unofficial capacities upon the SJSU email network.”

Regardless of whether he can prove defamation at trial, the elements are alleged and Defendants’ papers, particularly the declaration from Defendant Bates, fail to address them at all and so fail to meet the initial burden. See McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”) The fact that this claims survives also means that Plaintiff has a basis to seek punitive damages from Defendant Bates.

Summary Adjudication of the 6th cause of action, Fraud, is DENIED. Defendant Bates’ declaration denying that he made the alleged misrepresentations guaranteeing travel expenses is enough evidence for Defendants to meet their initial burden. However, Plaintiff’s statements in his declaration at 43 denying Bates’ version of events is enough to raise a triable issue as to this claim. The Court cannot weigh credibility on summary judgment/adjudication and “[t]ypically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” Kids’ Universe v. In2Labs (2002) 95 Cal App 4th 870, 881.

Summary Adjudication of “issue” number no. 7, asserting that there is no merit to Plaintiff’s request for punitive damages, is GRANTED in part and DENIED in part. Adjudication is GRANTED as to Defendants’ Wei and CSU as Plaintiff is bound by his sworn deposition testimony stating that he does not seek punitive damages from them. See also Gov. Code §818. Adjudication is DENIED as to Defendant Bates based on the survival of the 5th and 6th causes of action.