2015-00179003-CU-OE

Martina Silva vs. Dept. of Housing & Community Development

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Kim Losoya)

Filed By: Neill, David J.

Defendant California Department of Housing and Community Development’s (“HCD”) Motion for Summary Judgment /Summary Adjudication as to the claims of Kim Losoya for hostile work environment harassment is denied.

Defendant’s Request for Judicial Notice is granted.

In the FAC plaintiff alleges that she was denied fair treatment from defendant’s EEO office and has been harassed and treated unfairly due to her gender. She alleges she was verbally threatened by a senior manager that she could lose her job for relaying her subordinate’s concerns regarding EEO issues. She further alleges Defendant retaliated against her for participating in protected activities, namely the instant litigation, by placing her at work in direct proximity to those individuals about whom she complained. (FAC ¶ 10) Plaintiff dismissed her cause of action for age discrimination on December 21, 2017. (ROA # 67) Thus, this motion is moot as to the age discrimination claim since the only cause of action remaining is the claim for hostile work environment. Plaintiff also contends that she suffered workplace sexual harassment due to the conduct of former HCD Deputy Director Geurdon Stuckey (“Stuckey”). She contends Stuckey targeted female employees with promises of

“mentoring sessions” which often resulted in promotion for those who participated.

Plaintiff contends that she refused Stuckey’s advances.

In this motion, HCD contends plaintiff failed to exhaust her administrative remedies. The motion as to Issues 2 and 3, is moot because the cause of action for age discrimination has been dismissed.

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 issue which has not been pleaded 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.

Second, 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).

Finally, 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.

Before filing a civil action asserting claims under the Fair Employment and Housing Act (FEHA), a claimant must first exhaust her administrative remedies by filing a complaint with the DFEH, (Gov, Code § 12960(b); see McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal,4th 88, 113 (concluding FEHA’s administrative complaint procedure is a required administrative proceeding before a plaintiff is permitted to proceed in court).) In the context of the FEHA, “the failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect.” (Johnson v City of Loma Linda (2000) 24 Cal. 4th 61, 70. Blum v. Superior Court (2006) 141 Cal.App.4th 418, 422.) It is “plaintiffs burden to plead and prove timely exhaustion of administrative remedies,

such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.” ( Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336,1345.)

Government Code section 12960(b) requires that a claimant must “set forth the particulars” of the unlawful conduct that is the basis of the employee’s grievance. (Gov. Code, § 12960(b); 2 Cal.C. Regs §10007, Martin v Lockheed Missles & Space Co. (1994) 29 Cal.4th 1718, 1724. Any civil action for violation of FEHA is limited to matters like or related to the DFEH complaint: “Essentially, if an investigation of what was charged would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent civil action. Okoli v Lockheed Technical Operations Co (1995) 36 Cal.App.4th 1607, 1615. What is submitted to the DFEH is to be liberally construed in favor of plaintiff and must also be construed in light of what might be uncovered by a reasonable investigation. Nazir v Unitied Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.

A plaintiff’s failure to exhaust administrative remedies is ground for the granting of summary judgment.. (See e.g Wills v. Superior Court (2011) 195 Cal, App. 4th 143,148.) “To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint….” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718,1724.

DHC contends that Losoya’s FEHA Complaints described below are insufficient as a matter of law. Losoya filed DFEH complaints on November 10, 2014 and January 9, 2015.

In her first DFEH Complaint, Plaintiff checked boxes indicating her allegations that she experienced discrimination, harassment, and retaliation based on “Age – 40 and over,” “Race,” and “Sex – Gender,” and as a result, she was “Denied a Good Faith Interactive Process,” “Denied a Work Environment Free of Discrimination and/or Retaliation,” and “Other: Hostility, bully (sic), interference with ability
to do job.”

Plaintiff’s second DFEH Complaint alleges that on or around Nov 13, 2014,

respondent took the following adverse actions against complainant: “Discrimination,
Harassment, Retaliation Denied (sic) a good faith interactive process. Denied a work
environment free of discrimination and/or retaliation, Denied promotion. Other,
subjected to severe stress which impacted my health. Complaint believes respondent
committed these actions because of their (sic): Age – 40 and over. Color, Engagement
in Protected Activity,
Race, Sex – Gender.”

Defendant contends that plaintiff’s failure to provide the underlying facts describing the sexual harassment, the dates such alleged sexual harassment occurred, what conduct she alleges constituted the sexual harassment, and the identities of the person or persons she claims sexually harassed her render her FEHA complaint deficient as to her claim for sexual harassment. A Plaintiff may not proceed on claims not explicitly set forth in her charge of discrimination unless the claims are “like or reasonably related” to the claims set forth in the DFEH complaint and were likely to be uncovered in the course of a DFEH investigation. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1616-1617.) In Okoli, the Court found “a complaint alleging race discrimination is neither ‘like or related to’ nor likely to be discovered in a

‘reasonable’ investigation of a charge of sex discrimination.” (Id. at p. 1615.) (See also Yurick v. Superior Court (1989) 209 Cal.App.3d 1116,1123 (DFEH complaint for gender discrimination did not exhaust administrative remedies on claim for age harassment.).)

HCD has cited no cases on point that discuss the sufficiency of factual detail in FEHA Complaints. In fact, the Form FEHA Complaint provided to plaintiff on line provided only boxes to check and a space to list the names of the individuals to be sued. There was no space to provide a narrative of supporting facts. Plaintiff alleged that she was harassed on the basis of age, sex and gender. She named the harasser as a co-respondent on the FEHA complaint. The cases relied on by defendant are cases in which plaintiff’s civil complaint included a type of discrimination act that was not mentioned in the FEHA Complaint. In Okoli, the Court found “a complaint alleging race discrimination is neither ‘like or related to’ nor likely to be discovered in a ‘reasonable’ investigation of a charge of sex discrimination.” (Id. at p. 1615.) (See also Yurick v. Superior Court (1989) 209 Cal.App.3d 1116,1123 (DFEH complaint for gender discrimination did not exhaust administrative remedies on claim for age harassment.).) In Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718,1724, plaintiff alleged only age discrimination in FEHA complaint so it was beyond the scope of the FEHA complaint to allege the claims for sexual discrimination, harassment and retaliation in her civil complaint.)

However here, although plaintiff’s FEHA complaint is limited on supporting facts, a reasonable investigation of each type of conduct alleged would have likely led to the discovery of the plaintiff’s contentions regarding workplace sexual harassment. Therefore, the Court denies the motion for summary judgment/adjudication.