2016-00199813-CU-WT

Jamileff Haywood vs. Twin Rivers Unified School District

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

Filed By: Winter, Alison W.

Defendant Twin Rivers Unified School District’s (the “District”) motion for summary judgment, or in the alternative, summary adjudication is denied.

In this action Plaintiff Jamiileff Haywood alleges causes of action against the District for retaliation in violation of Labor Code § 1102.5 and for waiting time penalties. Plaintiff’s cause of action for wrongful termination in violation of public policy was

dismissed after the District’s demurrer. Plaintiff alleges that she was retaliated against after making complaints regarding health and safety problems in the preschool classroom where she worked as a teacher’s assistant.

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,1009.)

Defendant’s separate statement includes the following. Plaintiff started at Oakdale Elementary as an Instructional Paraeductaor with the Head Start Early Childhood Education program on October 1, 2012. In the Oakdale Elementary preschool classroom, there was one teacher and one paraeducator to meet the 1:8 adult to student ratio. Teacher Jean Bianco joined Plaintiff’s classroom for the 2014-2015 year. Tabitha Thompson was the Principal of Morey Elementary in addition to the Principal of the Head Start Program at Oakdale.

In September 2014, Cami Saling with Head Start performed a routine scheduled audit of the Oakdale Head Start classroom. During the first audit Ms. Saling asked Plaintiff a few questions. Ms. Saling then performed a second unscheduled audit towards the end of September 2014 about one week prior to Ms. Thompson’s conversation with Plaintiff regarding a transfer. On October 1, 2014, Ms. Thompson informed Plaintiff that she may be transferred to Morey Elementary because a bilingual teacher or aide was need in the Oakdale classroom because there were Spanish speaking students in the classroom. On October 3, 2014, Ms. Thompson told Plaintiff that neither the “concrete details” nor the “timeframe” for the transfer were known. As of October 9, 2014, Plaintiff did not know whether the transfer would occur. Plaintiff never received a 15-day notice regarding a transfer to Morey Elementary. Plaintiff never made any complaints to Ms. Thompson about the classroom.

Sometime between October 6 and 9, 2014, Plaintiff made a complaint to “state licensing” stating that the classroom was out of ratio and if an adult went to the restroom she had to take eight students with her. On October 9, 2014, Ms. Thompson attended a meeting with Jacqueline Perez at Oakdale regarding a potential transfer to Morey Elementary. That same day Plaintiff and Ms. Thompson discussed Plaintiff’s calls to Human Resources regarding the potential transfer. Plaintiff showed Ms. Perez a binder of information she had collected regarding her concerns with the Oakdale preschool classroom.

Staff would take video or photos of students in their daily routine to document that are doing a task correctly or whether they need help. Plaintiff understood that student files were private and not to be shared with non-parents or published on the Internet. All children photographed were required to have parental consent. Student information and records must be kept strictly confidential. On October 2, 2014, Ms. Bianco took a video of Plaintiff changing a student’s diaper in the restroom without parental consent. In the video, the student’s buttocks and genitals are shown. The video was published to YouTube. California Health and Human Services Analyst, Socorro Kelly, found a violation of California Code of Regulations § 101223(a)(1) pertaining to the violation of the personal rights of a child based on the taping and release of the video. On October 10, 2014, Ms. Perez notified Plaintiff that she was being placed on paid administrative leave pending an investigation. Plaintiff understood that she was being placed on leave because of the video.

On November 21, 2014, Plaintiff received paperwork informing her that Defendant did not want her to come back to her position and also received a Notice of Intent to Dismiss and to Suspend Without Pay. Plaintiff’s participation in the video and changing a student’s diaper in the video was the basis for the Notice of Intent to Dismiss and to Suspend Without Pay. On April 28, 2015, Plaintiff received a Recommendation Disciplinary Action-Dismissal. On July 22, 2015 Plaintiff participated in arbitration pursuant to her California State Employees (“CSEA”) contract. On September 1, 2015 Defendant’s Board determined that Plaintiff’s employment would be terminated.

First Cause of Action (Labor Code § 1102.5)

The District’s motion for summary adjudication is denied.

The District argues that Plaintiff cannot establish a prima facie case for retaliation under Labor Code § 1102.5 and in any event it had a legitimate non-retaliatory reason

for terminating her employment.

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show that this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1384.) To set forth a prima facie case of retaliation, plaintiff must show “(1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Id.) Analysis of a Labor Code § 1102.5 is similar to the analysis for a FEHA retaliation claim. (Id. at 1387.)

Prima Facie Case

The District argues that Plaintiff cannot establish a prima facie because she only engaged in one instance of protected activity (report to “state licensing”) and there was no connection between that one instance of protected activity and any adverse action. To that end, the District argues that while Plaintiff was present for two audits conducted by Ms. Saling with Head Start, she did not make any complaints at that time. The District next argues that any complaints Plaintiff raised to the District on October 9, 2014 regarding the Head Start program cannot constitute protected activity because complaints to one’s own employer about the employer’s own wrongdoing is not protected whistleblower activity.

Here, even assuming the District’s evidence were sufficient, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact with respect to whether there was a causal connection between any protected activity and any adverse action. To that end, both parties’ evidence reflects that Plaintiff made complaints to the District regarding potential Head Start violations. (Plf’s response to UMF 14) Specifically, Plaintiff’s deposition testimony demonstrates that she met with Ms. Moore, the HR Director on October 9, 2014 in which Plaintiff presented a binder of material containing notes regarding potential health and safety violations at the school. (Plf.s Exh. A [Plf.’s Depo. 186:3-16].) The District argues in reply that the only report made to the state licensing department occurred on October 9, 2014 which was after the subject video was made and that the District was not even aware of the complaint until October 10, 2014 when Plaintiff was placed on leave. However, Plaintiff testified that at her October 9, 2014, meeting with Ms. Moore, Ms. Moore told her that she knew Plaintiff had called HR numerous times and they discussed the licensing issues and the fact that Plaintiff called licensing. (Id. 214:16-23.) This alone is sufficient to raise a triable issue of material fact and requires that the motion on this basis must be denied.

A prima facie showing of a causal link may be made by a showing of the employer’s knowledge of the protected activity and “the proximity in time between the protected action and allegedly retaliatory employment decision.” (Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 69-70.) Indeed, Plaintiff was placed on leave (purportedly for her participation in the subject video) the day after she met with Ms. Moore and discussed potential Head Start violations and reported the District to state licensing, and had informed Ms. Moore of the same. The District’s arguments in reply that it never considered the October 9, 2014 complaint in deciding to place her on leave and then terminate her itself raises a factual dispute, and moreover goes more towards the stated reason for the adverse action discussed more fully below in

connection with that portion of the motion. Suffice it to say that the burden of establishing a prima facie case is not onerous and Plaintiff has raised a triable issue of fact.

Further, even assuming the District was not aware that Plaintiff complained to state licensing before it placed Plaintiff on leave, the evidence discussed above reflects that Plaintiff raised complaints regarding potential Head Start violations to the District itself, specifically on October 9, 2014, to Ms. Moore. In addition her deposition testimony indicates that Plaintiff had raised concerns regarding the classroom prior to that time, specifically, she had raised issues regarding blood and feces on the floor of the bathrooms where they had to change diapers. (Id. 194:8-21.) Plaintiff testified that Ms. Thompson was aware of the issues because she had spoken to her about them in “previous years.” (Id. 194:22-195:3.) The District argues that none of this can constitute protected activity because it involves a report to the employer regarding the employer’s own conduct. In making this argument, the District misconstrues applicable authority and the very case cited by the District confirms as much. ( Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832.)

Labor Code § 1102.5(e) provides that “[a] report made by an employee of a government agency to his or her employer is a disclosure of information to a government agency or law enforcement agency” and therefore subject to the statute’s protections. While Mize-Kurzman contains language indicating that the former version of the statute was interpreted to protect public employees who report violations to his or her own employer rather than a separate public agency where the supervisor or employer is not the suspected wrongdoer, this does not assist the District. Indeed, Mize-Kurzman stated that an “employee’s report to the employee’s supervisor about the supervisor’s own wrongdoing is not a ‘disclosure’ and is not protected whistleblowing activity, because the employer already knows about his or her wrongdoing.” (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4 th 832, 859 [emphasis in original].) As recognized by Mize-Kurzman “a public employee’s report of wrongdoing to his or her own employer is not excluded from qualifying as disclosure protected under the Labor Code” where “the superior to whom the report is made is not the person involved in the alleged wrongdoing.” (Id. [emphasis in original]; see also Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 243.) “In circumstances where the supervisor is not the alleged wrongdoer (i.e., the supervisor’s own conduct is not the asserted conduct that is being disclosed to that supervisor), it cannot categorically be stated that a report to a supervisor in the normal course of duties is not a protected disclosure.” (Id. at 858.) Mize-Kurzman even favorably cited to cases recognizing a whistleblower claim where the public employee made a report to his or her employer regarding wrongdoing at the employer where the superior to whom the wrongdoing was reported was not involved in the alleged wrongdoing. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1312-1313; Patten, supra, 134 Cal.App.4th at 1386.) Other cases have gone even further. ( Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 825-827 [report of wrongdoing by public employee to the very person engaged in the wrongdoing covered by the statute [dealing with the similar former version of the statute].) This is consistent with the “broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) Therefore, even assuming that the District was unaware of Plaintiff’s report to state licensing when it placed Plaintiff on leave, Plaintiff’s complaints to Ms. Moore are sufficient on their own to raise a triable issue of material fact regarding a causal connection.

Given the above, the Court need not address the District’s other arguments that Plaintiff’s complaints prior to October 9, 2014 were either not specifically identifiable or were otherwise not actually disclosure of violations. In addition, the Court also need not resolve the question of whether any decision to transfer Plaintiff was an adverse action. The Court would simply note, that “the 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “The ‘materiality’ test encompasses not only ultimate employment decisions, 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 in his or her career.’” (Patten, supra, 134 Cal.App.4th at 1387.)

As a result, the Court concludes that Plaintiff has demonstrated the existence of a triable issue of material fact as to a causal connection between protected activity and the adverse action of being placed on leave and eventually terminated.

Legitimate Non-Retaliatory Reason

The District next argues that it had a legitimate, non-retaliatory reason for the adverse action. To meet its burden, the District was required to make a “sufficient showing of a legitimate reason for” the adverse action. (King v. United Parcel Serv., Inc. (2007) 152 Cal.App.4th 426, 433.) The District’s “burden is one of production, not persuasion, thereby involving no credibility assessment.” (Day v. Sears Holdings Corp. (2013) 930 F.Supp.2d 1146, 1169.) Here, the District has produced evidence that it suspended and eventually terminated Plaintiff’s employment due to her participation in making the “day in the life video.”

Assuming that the District’s evidence were sufficient to meet its burden, Plaintiff has demonstrated the existence of a triable issue of material fact.

Where an employer has met its burden to demonstrate a legitimate, non-discriminatory reason for its actions, the burden shifts to Plaintiff to show pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) In this regard, Plaintiff may “establish pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of

credence.’ [citations omitted] Circumstantial evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis. [citations omitted] With direct evidence of pretext, ‘a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. [citations omitted] The plaintiff is required to produce ‘very little’ direct evidence of the employer’s discriminatory intent to move past summary judgment.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) When dealing with circumstantial evidence of pretext, a plaintiff is required to “set forth specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable fact-finder could rationally find them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” (Id., at 75.)

To that end, Plaintiff’s evidence shows that the subject video was created by Jean Bianco. (PAMF 81) Plaintiff presents evidence that photos and videos were frequently used by Plaintiff and other teachers at Oakdale to supplement student files and to assist in documenting and grading student activities. In situations where a teacher or teaching assistant has concerns, such as cleanliness, broken toys and unclean bathrooms, they were allowed to use a camera to document the concern. (PAMF 82) Plaintiff also submits evidence that she did not participate in creating the subject video. Plaintiff’s deposition testimony indicated that she was unaware that Jean Bianco was taping her while she was changing a student’s diaper and did not see her while she was changing the diaper. (Plf’s Exh A. [Plf’s Depo. 153:12-25, 155:14-17, 179:17-180:3].) Plaintiff also testified that Ms. Bianco did not tell her why she was recording on the day in question other than that she wanted to use it to document violations. (Id. 141:25-142:12, 142:25-143:13, 146:5-17) Plaintiff never held the video camera or took any portion of the video. (Id. 151:7-10) Plaintiff’s evidence also shows that following an arbitration regarding whether the decision to uphold Plaintiff’s termination should be upheld, the arbitrator recommended that termination was excessive. The District’s Assistant Superintendent of HR testified in her deposition that she could not recall any time the District’s Board rejected an arbitrator’s recommendation. (Plf’s Exh. C [Carreon Depo. 89:20-22.) Further, as discussed above, there is evidence that Plaintiff was making numerous complaints regarding the Head Start program and that Plaintiff was placed on administrative leave shortly after the District learned Plaintiff had made complaints to state licensing officials. Plaintiff’s evidence does not simply dispute the wisdom of the District’s decision but rather has provided “specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable fact-finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” ((Morgan, supra, 88 Cal.App.4th at 75.) Again, the District’s stated reason for termination was based on Plaintiff’s participation in the video, though Plaintiff’s evidence [disputed by the District, as noted infra.] shows that she did not participate in that video and was not even aware that she was being recorded while she changed the student’s diaper. A reasonable trier of fact could infer that the District’s reason for placing Plaintiff on administrative leave and terminating her employment is untrue and that the District did not act for the state non-retaliatory reasons.

In reply, the District argues that when one views the video, it is clear that Plaintiff was aware that she was being recorded because she looked into the camera and speaks to Ms. Bianco and appears to take direction from Ms. Bianco regarding changing the child’s diaper. While a trier of fact may draw certain inferences from the video which conflict with Plaintiff’s own testimony that she was not aware that she was being recorded while changing the diaper and did not see Ms. Bianco while she was changing the diaper, these factual disputes must be resolved by the trier of fact.

As a result, the motion on the basis that the District had legitimate non-retaliatory reasons for placing Plaintiff on leave and then terminating her is denied.

Third Cause of Action (Waiting Time Penalties)

The District’s motion is denied.

The District argues that Plaintiff is not entitled to accrued vacation of paid time off and thus not entitled to a waiting time penalty. Labor Code § 201(a) provides that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Labor Code § 203 provides penalties for an employer’s failure to pay wages to a discharged employee.

The District’s evidence with respect to this cause of action shows that Plaintiff never made any claim for unused paid time off. As of November 21, 2014 Plaintiff has accrued 424.36 sick leave hours. These hours had no monetary value and could not be cashed in. The hours could only be used as sick days or transferred to a new school district which must be done within one year of the employee leaving employment with the District. Plaintiff did not request a transfer of her sick leave to a new school district within one year of her employment with the District, and never obtained new employment with a different school district. Defendant provides paid non -duty days and paid holidays pursuant to the agreement between the CSEA Twin Rivers Chapter #1717 and the District. Employees must be in paid status on the working day immediately prior to the holiday in order to earn the benefit of that paid day. In order to earn a paid non-duty day, the employee must have worked more than one-half of the work days in the month to earn the vacation/non-duty time for that month. Plaintiff was not in paid status and was not entitled to any paid non-duty day or holiday after November 21, 2014.

Even assuming that the District’s evidence was sufficient to meet its burden, Plaintiff’s evidence is sufficient to demonstrate the existence of a triable issue of material fact. Plaintiff presented evidence that she was in paid status on November 21, 2014. She presents evidence that the District’s payroll director testified in her deposition that she received notice to stop paying Plaintiff as of November 21, 2014. (Plf’s Exh. D [Winter Depo. 62:1-9].) She then was shown the notice which stated that it was effective five calendars days after receiving the notice which would indicate that Plaintiff was still in paid status as of November 21, 2014 and that Plaintiff possibly was entitled to pay for November 26, and 27, 2014. (Id. 62:10-19.) This directly disputes the District’s UMF 45 which states that employees must be in paid status on the working day immediately prior to the holiday in order to earn the benefit of that paid day. It also directly disputes UMF 47 which states that Plaintiff was not in paid status and not entitled to any paid non-duty day or holiday after November 21, 2014. These triable issues of material fact requires that the motion be denied. The Court need not address Plaintiff’s other arguments.

In reply, the District argues that Plaintiff’s own evidence shows that she was paid her full wages through November 30, 2014. The District now states that it does not dispute that she was entitled to vacation pay on November 26 and 27, 2014. This is in direct contrast to its moving papers which specifically argued that Plaintiff was not entitled to any paid non-duty of holiday pay after November 21, 2014. Further, Plaintiff’s Exhibit Q only shows that she was paid for the pay period ending November 30, 2014, and does not specifically indicate that Plaintiff was paid for any holidays. Further, the District argues in reply that Plaintiff was in paid status until November 26, 2014, again despite the fact that it offered evidence from its Payroll Director who specifically declared that Plaintiff “was not in paid status as of November 21, 2014, she was not entitled to any paid holiday after that date.” (Winter Decl. ¶ 2.) The District set up its motion in a way which allowed Plaintiff to create a triable issue of material fact. It cannot now shift gears and seek to take an entirely contrary position on reply.

Having failed to obtain summary adjudication on all causes of action asserted against it, the District’s motion for summary judgment is denied.

The District’s evidentiary objections are overruled.

Plaintiff’s counsel shall submit an order pursuant to CRC 3.1312 and CCP § 437c.