19-CIV-05648 MARK ANTHONY AWAD VS. ART STELLINI, ET AL.

MARK ANTHONY AWAD ART STELLINI
MARK L. VENARDI

DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT TENTATIVE RULING:

Defendants Broadmoor Police Protection District’s (“Broadmoor”) and Art Stellini’s Demurrer to Plaintiff Mark “Tony” Awad’s 9-24-19 Complaint is ruled upon as follows:

As to the Second Cause of Action for “discrimination” and the Third Cause of Action for “failure to take all reasonable steps to prevent harassment/discrimination/retaliation” based upon Defendants’ contention that Plaintiff incorrectly named himself and Broadmoor in his administrative complaint, the parties are to appear (telephonic appearances are acceptable but not preferred) to further argue the issue.

The Court invites further citation to authority. If counsel is going to cite to new authority, counsel shall, before the hearing provide opposing counsel with the citations of that new authority. Counsel shall bring a list for the Court and the court reporter of any authorities that they intend to cite (copies of the cases are not required for the Court unless they cannot be found on Westlaw). If a party is going to appear telephonically, then the list shall be emailed, prior to the hearing, to the Department 4 clerk at ASegran-Teo@sanmateocourt.org.

If any party wants to contest the tentative on any of the tentative rulings set forth below, he/she shall notify the Court and opposing counsel pursuant to the Local Rules. As to the First Cause of Action against Broadmoor for “harassment,” the Demurrer is OVERRULED. The California Supreme Court held that an employer is strictly liable when the harasser is a supervisor. Roby v. McKesson Corp., 47 Cal. 4th 686, 707 (2009), as modified (Feb. 10, 2010). Additionally, “[w]hen 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).” Id. (citing Section 12940(j)(1)).

Here, Plaintiff has adequately pleaded facts showing that at least one of his supervisors, Cpl. Morton, harassed him by “us[ing] racial epithets to imply that Mr. Awad was a member of a terrorist organization simply because of his Lebanese descent.” Compl. ¶ 16. Additionally, Plaintiff has pleaded sufficient facts showing Broadmoor knew or should have known of the harassment and failed to take corrective action. Id. As to the First Cause of Action against Stellini for “harassment,” the Demurrer is SUSTAINED with leave to amend. The only acts of harassment Plaintiff alleges were committed by Stellini relate to Stellini’s investigation and termination of Plaintiff. These acts on their own cannot support Plaintiff’s claim of harassment against Stellini.

Personnel management actions, such as firing, job assignments, and demotion, may be evidence of discriminatory animus in support of a harassment claim, Roby v. McKesson Corp., 47 Cal.4th 686, 709 (2009), but they do not otherwise come within the meaning of harassment. Reno v. Baird (1998) 18 Cal.4th 640, 646-47. Plaintiff has not alleged any other specific acts of harassment. Stellini’s failure to condemn or take action against the alleged harassers, as alleged in paragraph 17 of the Complaint, is insufficient to support his personal liability for harassment. Fiol v. Doellstedt, 50 Cal. App. 4th 1318, 1327 (1996) (“In this opinion, we make clear that mere inaction by a nonharassing supervisor does not constitute aiding and abetting. . . . [I]ndividual supervisory employees should not be placed at risk of personal liability . . . for personnel management decisions which have been delegated to the supervisor by the employer, such as deciding whether to investigate or take action on a complaint of sexual harassment.”).

Defendants argue that Stellini’s comment as being made “later,” which is not quite accurate because Plaintiff uses the word “Afterwards.” Even with a liberal reading of paragraph 17 in context of the rest of the complaint does not show that Stellini was present when the incident occurred because the word “afterwards” is vague. Further Stellini’s words, without additional context, are not a clear statement of approval or ratification. Further context is needed. As such, Plaintiff has failed to plead a cause of action for harassment against Stellini.

As to the Fourth Cause of Action for Retaliation, the Demurrer is OVERRULED. On Demurrer, the Court reads the allegations as a whole, and views them liberally, in a light favorable to the pleading party. The issue is whether Plaintiff complained about prohibited conduct. Govt. Code section 12940(h). Though Plaintiff admits he did not explicitly complain about the alleged discriminatory conduct, a formal complaint is not required. Yankowiz v. LoOreal USA, Inc. (2005) 36 Cal.4th 1028, 1046-47.

There needs to be “recognizable opposition” to an employment practice. Id. Plaintiff has alleged a specific instance where he opposed Defendants’ alleged discriminatory conduct through his actions. Specifically in paragraph 17,

Plaintiff alleges that “fellow Broadmoor officers made a racially charged joke inside the Broadmoor PD office [and] [w]hile many officers erupted into laughter, Mr. Awad shook his head in embarrassment and anger.” Shaking one’s head when others are laughing is demonstrating opposition, which is a sufficient fact to satisfy the element of complaining about the prohibited conduct.

Plaintiff also cites to paragraphs 18 and 24, but those allegations are conclusory without facts. Construing the Complaint liberally, Plaintiff has sufficiently pled a cause of action for retaliation.