Case Number: BC666968 Hearing Date: May 23, 2018 Dept: 34

SUBJECT: Motion for Summary Judgment or Summary Adjudication

Moving Party: Defendant California Department of Social Services

Resp. Party: Plaintiff Tamica Gibbs

Summary adjudication is GRANTED as to the first, second, third, fourth, sixth, and eighth causes of action.

Summary adjudication is DENIED as to the fifth cause of action.

BACKGROUND:

Plaintiff commenced this action on 06/27/17. On 11/15/17, plaintiff filed a First Amended Complaint (“FAC”) against defendants for: (1) race discrimination – disparate treatment in violation of FEHA; (2) gender discrimination in violation of FEHA; (3) age discrimination in violation of FEHA; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent discrimination in violation of FEHA; (7) intentional infliction of emotional distress; and (8) declaratory relief.

ANALYSIS:

Defendant California Department of Social Services (“CDSS”) moves for summary judgment or, in the alternative, summary adjudication of plaintiff’s first, second, third, fourth, fifth, sixth, and eighth causes of action. (See Notice of Motion, p. 2:4-15.) The seventh cause of action for intentional infliction of emotional distress is not alleged against CDSS. (See FAC, p. 14:16-18.)

Factual Background

Plaintiff is an African American woman who began working for the State of California in 1992. (Plaintiff’s Additional Material Facts (“PAMF”) 1, 2) By 2001, she had been promoted to the position of Staff Services Analyst (“SSA”) in the Field Operation Bureau of the Welfare to Work Division in California Department of Social Services’ (“CDSS”) CalFresh Branch. (PAMF 5.) During her 24 year career, plaintiff never received a negative performance evaluation. (PAMF 6.) On multiple occasions, plaintiff requested to be promoted to the position of Associate Governmental Programs Analyst (“AGPA”). (PAMF 7.) Additionally, she took the promotion examination on a yearly basis and routinely scored 95% on the exam. (PAMF 8.) Plaintiff believes that despite her obvious qualifications, 15 years of relevant experience, and multiple requests for promotion, she “was subjected to discrimination on the basis of her race (disparate impact) by Defendant CDSS’ failure to promote her and/or even reviewing her file for promotion, however, Defendant CDSS promoted multiple people . . . who were not African-American to the AGPA position, who were either less or equally qualified.” (PAMF 10.)

In contrast, defendant asserts that plaintiff was not promoted because she was not qualified for a promotion and that her supervisors had no discriminatory or retaliatory motive in denying plaintiff a promotion. (PMF 26-27.) Specifically, defendant claims that plaintiff’s work product “required constant editing and additional work by her reviewers” and that “[n]one of Plaintiff’s supervisors recommended to Carlos Ocampo that she be promoted to AGPA.” (PMF 28-29.) Plaintiff disputes these claims and maintains that she “was denied the AGPA position on the basis of her race and filing of complaints.” (PMF 26, 27, 29, 30.)

Additionally, Ocampo “observed and learned of Plaintiff’s unprofessional and disrespectful behavior . . . which showed that she lacked the skills required for the AGPA position.” (DMF 30.) Beginning in March 2014, “plaintiff demonstrated unprofessional and disrespectful behavior towards CDSS staff, management and County Welfare Departments employees.” (DMF 35.) Specifically, plaintiff “had numerous violations of CDSS’ Unprofessional Conduct and Workplace Violence Zero Tolerance Policies.” (DMF 36.) Plaintiff maintains that she “was never subjected to any disciplinary action from CDSS” prior to her suspension and termination. (PMF 35, 36.)

Beginning in late-2015, plaintiff filed several discrimination complaints. (PAMF 12-15.) These complaints each alleged that plaintiff believed that she had been discriminated against based on her race and that her supervisors were retaliating against her for reporting an incident that occurred on 12/30/15. (See PAMF 14.)

On June 21, 2016, plaintiff received a Notice of Adverse Action (“NOAA”) from CDSS informing her that she was to be suspended for one year without pay due to her insubordination; plaintiff claims that defendant was actually retaliating against her for filing the discrimination complaints. (PAMF 17.) Plaintiff appealed the suspension to the State Personnel Board (“SPB”); although the parties attempted to negotiate a settlement, they were unable to reach a resolution. (PAMF 22, 23.) Then, on 09/30/16, plaintiff received a second NOAA which informed her that she was being terminated “for insubordination, dishonesty, discourteous treatment of the public or other employees, willful disobedience, and a failure of good behavior.” (PAMF 24.) Plaintiff appealed this decision to the SPB as well. (PAMF 25.)

Plaintiff’s two appeals were consolidated and a hearing was held by the SPB from 01/30/17-02/03/17. (DMF/PMF 1.) At the hearing, plaintiff asserted race discrimination and retaliation as affirmative defenses and argues that her NOAAs resulted from discrimination and retaliation. (DMF/PMF 2, 3.) The SPB ultimately “determined that there was insufficient evidence that John Mason, Carlos Ocampo or any of Plaintiff’s co-workers treated her differently due to race.” (DMF/PMF 5.) The SPB also determined that there was insufficient evidence that Plaintiff’s race was a substantial factor in the decision to suspend her and that plaintiff “failed to present sufficient evidence to indicate that CDSS retaliated against Plaintiff for filing her discrimination complaint.” (DMF/PMF 7-13.) As discussed in more detail below, the parties dispute the significance of the SPB’s ruling. (DMF/PMF 15-17.)

Discussion

Defendant moves for summary judgment on the ground that the seven causes of action that plaintiff has alleged it do not have merit. With respect to the first, second, third, fourth, and fifth causes of action, defendant argues that plaintiff’s claims for discrimination, harassment, and retaliation must necessarily fail because they are barred by collateral estoppel or plaintiff’s failure to exhaust administrative remedies. (See Motion, p. 8:5-9:12.) Defendant further argues that because plaintiff cannot prevail on her claims for discrimination, harassment, or retaliation, she necessarily cannot prevail on the sixth and eighth causes of action for failure to prevent and for declaratory relief. (See Id. at p. 9:13-17.)

Discrimination, Harassment, and Retaliation – Causes of Action 1-5

Failure to exhaust administrative remedies

Defendant argues that plaintiff’s second cause of action for gender discrimination, third cause of action for age discrimination, and fourth cause of action for harassment must fail because plaintiff failed to exhaust her administrative remedies with respect to these claims. (See Motion, p. 18:3-23; 21:8-11.) Specifically, defendant notes that plaintiff’s DFEH complaints alleged only that “she was subject to discrimination based on race and retaliation. Plaintiff has never alleged in any of her administrative complaints that she was subject to discrimination based on gender or age [or that she was harassed].” (Id. at p. 18:19-21.) Because “the scope of the DFEH charge defines the permissible scope of the civil complaint,” plaintiff must be barred from bringing these claims against defendant. (See Id. at p. 18:13-14 [quoting Yurick v. Sup. Ct. (1989) 209 Cal.App.3d 1116, 1121-1123].)

Plaintiff concedes this point as she has not addressed the issue in her opposition. (See generally, Opposition.) Specifically, plaintiff states that she “does not oppose Defendant CDSS’ Motion for Summary Adjudication as to the Second, Third, Fourth . . . Causes of Action.” (Id. at p. 20:28.)

The Court grants summary adjudication in favor of defendant as to the second, third, and fourth causes of action.

Collateral Estoppel

Next, defendant argues that plaintiff’s first cause of action for race discrimination and fifth cause of action for retaliation are barred by the doctrine of collateral estoppel because these claims have already been adjudicated by the State Personnel Board (“SPB”). As detailed above, plaintiff was initially suspended from her position for one year and was subsequently terminated. She filed a separate appeal of each of these decisions with the SPB; the SPB then consolidated her appeal for hearing. (Plaintiff’s COE, Exh. O, p. 1.) Defendant argues that plaintiff raised the issues of racial discrimination and retaliation in her administrative complaints and at the hearing before the SPB and that the SPB “concluded, as a matter of law, that CDSS did not suspend or dismiss Plaintiff for unlawful discriminatory or retaliatory reasons.” (Motion, p. 16:15-17.)

While it is true that plaintiff raised the issues of racial discrimination and retaliation at the SPB hearing, defendant’s characterization of the SPB’s ruling is overly broad. The SPB’s decision notes that among the “issues to be resolved” are “As to the First NOAA, did Respondent discipline Appellant for racially discriminatory or retaliatory reasons?” and “As to the Second NOAA, did the Respondent discipline Appellant for retaliatory reasons?” (Plaintiff’s COE, Exh. O, p. 2, Issue # 3; p. 3, Issue # 7.)

The SPB subsequently concluded that, with respect to the first NOAA — CDSS’s decision to suspend plaintiff for one year — plaintiff “has not offered sufficient evidence to establish that the adverse action occurred under circumstances giving rise to an inference of unlawful discrimination. Appellant failed to establish a prima facie case of discrimination.” (Id. at p. 33, ¶ 1.) The SPB also concluded that the one-year suspension could not have been in retaliation for plaintiff’s discrimination complaints because “[t]here was insufficient evidence presented that Bland, the decision maker in Appellant’s NOAA’s, had any knowledge of [plaintiff’s] discrimination claims.” (Id. at p. 34, ¶ 1.)

The SPB also found that the second NOAA — CDSS’s decision to terminate plaintiff’s employment — was not retaliatory. There, however, plaintiff had alleged that her termination was in retaliation for reporting her supervisor’s alleged threat against a third party. Her retaliation claim with respect to that decision had nothing to do with her separate claims that any of defendant’s actions were racially motivated.

Finally, plaintiff’s opposition presents the most persuasive explanation as to why collateral estoppel should not apply. In short, plaintiff explains that the complaints that she filed with the SPB arose out of her claims that defendant’s disciplinary decisions were improperly motivated by race and retaliatory intent; her present action alleges, amongst other things, that defendant discriminated against her by failing to promote her due to her race and that her employment was terminated in retaliation for reporting this unlawful discrimination. (See Opposition, p. 10:1-14:10; See FAC, ¶ 10.)

The Court finds that plaintiff’s first and fifth causes of action are not barred by collateral estoppel and will evaluate the merits of each claim.

First Cause of Action – Race Discrimination in Violation of FEHA

The following analysis applies for discrimination claims:

“State and federal law both analyze … discrimination claims under a three-step framework. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The employer then must offer a legitimate nondiscriminatory reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer’s proffered reason was pretextual. [Citations.]” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

To show a cause of action for workplace discrimination, plaintiff must provide facts showing that: (1) plaintiff was a member of a protected class; (2) she was qualified for the position sought, or was performing competently in the position held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.) An employee seeking recovery on a theory of unlawful discrimination must plead that she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

The elements of a claim for discrimination for failure to promote are: (1) plaintiff is a member of a protected group; (2) plaintiff was qualified for the promotion; (3) plaintiff had a reasonable expectation of being promoted; and plaintiff applied for and was denied the promotion. (Chin, et al., Cal. Prac. Guide: Employ. Litig. (The Rutter Group 2015) ¶ 7:396 [citing Haire v. Calloway (8th Cir. 1978) 572 F.2d 632, 634]. See also Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1327-1328.) “[A]lthough it is usually necessary for a plaintiff to show that he applied for an available position, that element of the prima facie case will be excused where he demonstrates that the employer ‘ “had some reason or duty to consider him for the post.”’ [Citations.]” (Kehoe v. Anheuser-Busch, Inc. (8th Cir. 1996) 96 F.3d 1095, 1105, fn. 13.)

An employer’s legitimate reason for the adverse action is one that is unrelated to the alleged discriminatory motive. (See Guz, supra, 24 Cal.4th at p. 358.) “The ultimate issue is whether the employer had a discriminatory motive. Thus, the employer’s reasons if honestly believed and nondiscriminatory on their face may preclude a finding of discrimination, even if such reasons are ‘foolish or trivial or baseless.’ [Citations.]” (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶ 7:417.) “But where other evidence supports an inference of discriminatory motive, proof that the employer’s reasons are illogical and inconsistent may ‘considerably assist’ plaintiff’s case because it suggests the employer had cause to hide its true reasons.” (Id., ¶ 7:425.) “Legitimate reasons are those ‘that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]’ [Citation.]” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 754.)

“Once the employer has articulated a legitimate, nondiscriminatory reason, the presumption of discrimination created by plaintiff’s prima facie case, ‘having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.’ ” (Chin, et al., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶ 7:426.) The burden then shifts to the plaintiff to persuade the trier of fact that the legitimate reasons offered by the defendant were false, which creates an inference that the reasons were a pretext for discrimination. (Id., ¶ 7:435.) A plaintiff may prove pretext either indirectly (showing that the employer’s reason is “unworthy of credence”) or directly (showing that the employer was more likely motivated by discrimination). (Id., ¶ 7:437.) However, the plaintiff must still make a prima facie showing of discriminatory intent. “An inference of intentional discrimination cannot be drawn, however, solely from proof that the employer’s stated reasons are unworthy of belief: ‘The pertinent statutes do not prohibit lying, they prohibit discrimination.’” (Id., ¶ 7:438.)

“[T]he proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment. . . . We further conclude that in determining whether an employee has been subjected to treatment that materially affects the terms and conditions of employment, it is appropriate to consider the totality of the circumstances ….” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.)

Plaintiff argues that she can present direct evidence sufficient to raise a triable issue of material fact that she was denied the promotion due to her race. (See Opposition, p. 15:5-25.) Specifically, she claims that defendant “continually failed to promote [her] but promoted other people equally qualified but of a different race” despite the fact that she “took and passed the exam to be promoted to AGPA five times with an average score of 95% [and] requested promotion and was constantly bypassed, ignored, passed over, and ultimately suspended and terminated for exercising her right to request a promotion.” (Id. at p. 15:11-17; See PAMF 8; COE Exh. C.) Additionally, she notes that she “was the only person that was working as a SSA and not promoted over the relevant time period; and that the other African American workers who were previously employed in this department were either terminated or forced to resign.”

The Court notes that there is no citation to evidence in Plaintiff’s opposition. (See, e.g., opposition, p. 15:11-19; p. 17:6-13.) Rather, counsel simply presents argument, and then concludes, “This is ‘direct evidence’ of discriminatory intent. What could be more direct?” or “What could be more direct evidence of discriminatory animus than that?” (Opposition, p. 15:19; p. 17:14.) “[A]n assertion is not evidence.” (Paleski v. State Dept. of Health Services (2006) 144 Cal.App.4th 713, 732; see also Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence.”]; Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [“the arguments of counsel in a motion are not a substitute for evidence, such as a statutorily required affidavit.” [emphasis in original].)

It is important to note that plaintiff’s own declaration and administrative complaints are the sole evidence in support of her claims that she was denied the promotion based on race and that other African American employees were also discriminated against. (See PAMF 10-11.) Ordinarily, a plaintiff’s “suspicions of improper motives . . . primarily based on conjecture and speculation’ are clearly not sufficient to raise a triable issue of fact to withstand summary judgment.” (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) However, in order to allow for a full analysis, the Court will presume, for now, that plaintiff’s evidence is sufficient to state a prima facie case for discrimination.

Defendant argues that it had legitimate non-discriminatory reasons for all of the adverse actions taken against plaintiff, including denial of a promotion, the suspension and the eventual decision to terminate plaintiff’s employment. (See Motion, p. 19:18-20:20; DMF27-37.) Defendant did not promote plaintiff to the AGPA position because “she did not demonstrate the knowledge and skills required for the position. . . . [her] case reviews required constant editing and additional work by her reviewers . . . . [and none of her] supervisors recommended to Mr. Ocampo that she be promoted to AGPA.” (Motion, p. 19:25-20:1.) Additionally, plaintiff’s supervisors observed that she was behaving in an unprofessional and disrespectful manner, which shows that she lacked the qualifications for the position. (See Id. at p. 2-7.) This is sufficient to show that defendant had a legitimate, nondiscriminatory reason for choosing not to promote plaintiff. As a result, the burden shifts back to plaintiff to show that defendant’s stated reason is a mere pretext for unlawful discriminatory intent.

In order to show pretext, plaintiff reasserts her previous argument. She states that she passed the AGPA exam five times with an average score of 95%, that she requested to be recommended for a promotion but was ignored, and that she was the only African American employee in her position who was not recommended for promotion. (See Opposition, p. 17:6-16.)

The Court notes that Plaintiff’s statement in this regard is ambiguous. She states,

“During my employment with CDSS at the Welfare to Work Division, there were only four African American employees, Jovance Tucker , John Mason, Taadhimeka Hayes and myself. These employees were transferred out of the Welfare to Work Division. I was the only African American woman whom was not promoted in the division. The promoted employees were non-black individuals.” (Gibbs Declaration, ¶ 13.)

Apparently there were four African-American employees in Plaintiff’s division. Three were “transferred out.” It is not clear whether this “transferr[ing] out” is a promotion, a lateral-move, or a demotion. The next sentence – “I was the only African American woman whom [sic] was not promoted in the division” – implies that the other three African-Americans in her division were indeed promoted. However, the following sentence – “The promoted employees were non-black individuals” – implies the opposite.

The ambiguity in Plaintiff’s declaration undercuts its probative value.

More importantly, Plaintiff’s claim that she was the only African American who was not recommended for promotion — or that other African American employees were also discriminated against — are unsubstantiated. Defendant’s Special Interrogatories sought, among other things, all facts supporting her claims that she was wrongfully terminated, that she was “discriminated against by employees of CDSS,” that CDSS “promoted non-African-American employees who were less qualified for the position” as well as the names of all persons with knowledge to support her claim. (See Def.’s COE, Exh. F, p. 2:8-12, 3;25-27, 7:18-8:3, 9:1-12, 10:7-11:8.) Plaintiff refused to produce substantive answers to these interrogatories and refused to answer based on attorney-client privilege, the work-product doctrine, and that answering the questions “would result in annoyance, embarrassment, [or] oppression.” (See generally, Id. at Exh. G., p. 3:21-4:9, 10:19-11:4, 25:1-27:10, 30:20-32:5, 35:10-38:27; See also, PMF 20, 21.) “In light of the interrogatory question, the plaintiff’s failure to provide any information in effect admitted that they had no further information.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107.)

To the extent that plaintiff identified individuals who could substantiate any of her claims, she responded only “Plaintiff Tamica Gibbs and Defendants CDSS [and Ocampo].” (See Def.’s COE, Exh. G., p. 28:11, 29:12, 30:18-19, 34:6.) Plaintiff’s evidence submitted in support of her opposition consists largely of the administrative complaints that she filed as well as the SPB’s ruling. In short, plaintiff’s only evidence is her own claim that defendant acted with an unlawful discriminatory motive. “[I]t is well established that a plaintiff’s ‘suspicions of improper motives … primarily based on conjecture and speculation’ are not sufficient to raise a triable issue of fact to withstand summary judgment.” (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564, quoting Crosier v. United Parcel Service, Inc. (1983) 150 Cal. App. 3d 1132, 1139.)

The Court GRANTS summary adjudication of the first cause of action.

Fifth Cause of Action – Retaliation

The FEHA makes it unlawful “[f]or 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.” (Gov. Code, § 12940(h).)

“Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “drops out of the picture,” and the burden shifts back to the employee to prove intentional retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.'” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

“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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

Plaintiff argues that there is at least circumstantial evidence that defendant’s decisions to suspend her and then terminate her employment were made in retaliation for the various discrimination complaints that she filed. (See Opposition, p. 18:7-19:14.) As detailed above, plaintiff filed several administrative complaints alleging discrimination beginning in early 2016. (See PAMF 12-15.) Defendant issued the first NOAA suspending plaintiff for one year on 06/21/16. (PAMF 17.) This was less than six months after plaintiff began to file her complaints and, notably, only a few weeks after she filed discrimination claims with DFEH and the EEOC on 04/29/16. (See Def.’s RJN, Exh. 1.)

Defendant explains that the disciplinary decisions resulted from plaintiff’s behavior and sub-par performance at work. (See Motion, p. 25:6-12.) However, plaintiff has shown that defendant deviated from its own policies of “progressive discipline,” in which “an employee is first given a verbal warning, a written warning, a suspension without pay, probation, and then discharge.” (Opposition, p. 19:23-25.) The SPB reached a similar conclusion, finding that the suspension was “heavy handed and excessive” and defeated the purposes of progressive discipline. (See Plaintiff’s COE, Exh. O, p. 44, ¶ 2.) The timing of defendant’s decision to suspend plaintiff relative to her discrimination complaints, as well as defendant’s failure to follow its own well-established policies is sufficient to raise a triable issue of fact as to retaliation.

The Court DENIES summary adjudication of the fifth cause of action.

Sixth Cause of Action – Failure to Prevent Discrimination and Harassment

Plaintiff “does not oppose Defendant CDSS’ Motion for Summary Adjudication as to the . . . sixth . . . Cause of Action.” (Opposition, p. 20:28.)

The Court GRANTS summary adjudication of the sixth cause of action.

Eighth Cause of Action – Declaratory Relief

Defendant acknowledges that “[d]eclaratory relief may be appropriate to condemn discriminatory employment policies or practices.” (See Motion, p. 27:12-13 [quoting Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234].) However, because plaintiff has failed to show that discrimination motivated any decisions relating to her employment, the Court should grant summary adjudication of this cause of action. (See Id. at p. 27:12-20.) Although plaintiff asks the Court to deny summary adjudication of the eighth cause of action, she has failed to present any argument why such relief is appropriate. (See Opposition, p. 20:5-6.)

Because the Court has granted summary adjudication of plaintiff’s discrimination cause of action, the Court also GRANTS summary adjudication of plaintiff’s request for declaratory relief.

SUBJECT: Motion for Summary Adjudication

Moving Party: Defendant Carlos Ocampo

Resp. Party: None

The Court GRANTS summary adjudication of the fourth and seventh causes of action as well as the issue of punitive damages.

The Court takes judicial notice of the items submitted by defendant.

PRELIMINARY COMMENTS:

It is not clear to the Court whether Plaintiff is opposing this Motion for Summary Adjudication filed by Defendant Ocampo. Plaintiff has not filed an opposition. Further, in her opposition to CSSS’ Motion for Summary Adjudication, plaintiff states that “Plaintiff does not oppose Defendant CDSS’ Motion for Summary Adjudication as to the Second, Third, Fourth, Sixth and Seventh Causes of Action Only.” (Opposition, p. 20:28.) It is not clear if Plaintiff agrees that the Motion for Summary Adjudication as to the fourth and seventh causes of action should be granted.

However, for the reasons indicated below, the Court would grant Ocampo’s Motion for Summary Adjudication.

BACKGROUND:

Plaintiff commenced this action on 06/27/17. On 11/15/17, plaintiff filed a First Amended Complaint (“FAC”) against defendants for: (1) race discrimination – disparate treatment in violation of FEHA; (2) gender discrimination in violation of FEHA; (3) age discrimination in violation of FEHA; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent discrimination in violation of FEHA; (7) intentional infliction of emotional distress; and (8) declaratory relief.

ANALYSIS:

Defendant Carlos Ocampo moves for summary adjudication of plaintiff’s fourth and seventh causes of action and seeks a determination that plaintiff cannot recover punitive damages against him. (See Notice of Motion, p. 2:10-18.)

Factual Background

Plaintiff is an African American woman who began working for the State of California in 1992. (Plaintiff’s Additional Material Facts (“PAMF”) 1, 2) By 2001, she had been promoted to the position of Staff Services Analyst (“SSA”) in the Field Operation Bureau of the Welfare to Work Division in California Department of Social Services’ (“CDSS”) CalFresh Branch. (PAMF 5.) During her 24-year career, plaintiff never received a negative performance evaluation. (PAMF 6.) On multiple occasions, plaintiff requested to be promoted to the position of Associate Governmental Programs Analyst (“AGPA”). (PAMF 7.) Additionally, she took the promotion examination on a yearly basis and routinely scored 95% on the exam. (PAMF 8.) Plaintiff believes that despite her obvious qualifications, 15 years of relevant experience, and multiple requests for promotion, she “was subjected to discrimination on the basis of her race (disparate impact) by Defendant CDSS’ failure to promote her and/or even reviewing her file for promotion, however, Defendant CDSS promoted multiple people . . . who were not African-American to the AGPA position, who were either less or equally qualified.” (PAMF 10.)

Beginning in late-2015, plaintiff filed several discrimination complaints. (PAMF 12-15.) These complaints each alleged that plaintiff believed that she had been discriminated against based on her race and that her supervisors were retaliating against her for reporting an incident that occurred on 12/30/15. (See PAMF 14.)

On June 21, 2016, plaintiff received a Notice of Adverse Action (“NOAA”) from CDSS informing her that she was to be suspended for one year without pay due to her insubordination; plaintiff claims that defendant was actually retaliating against her for filing the discrimination complaints. (PAMF 17.) Then, on 09/30/16, plaintiff received a second NOAA which informed her that she was being terminated “for insubordination, dishonesty, discourteous treatment of the public or other employees, willful disobedience, and a failure of good behavior.” (PAMF 24.)

Discussion

Defendant seeks summary adjudication of plaintiff’s fourth and seventh causes of action as well as a determination that plaintiff cannot recover punitive damages against him.

Issues #1 & #2: Fourth Cause of Action – Harassment in Violation of FEHA

Defendant argues that plaintiff’s harassment claim is barred due to her failure to exhaust her administrative remedies. (See Motion, p. 12:4-22.) He notes that the administrative complaints filed by plaintiff allege “that she was subject to discrimination based on race and retaliation” and that she “has not alleged in her administrative complaints that she was subject to harassment based on any protected classification.” (Id. at p. 12:18-20; DMF 1-5.)

Defendant’s characterization of plaintiff’s administrative complaints appears to be accurate. (See Def.’s RJN, Exh. 1-4.)

“When the opposing party fails to file a separate responsive statement the trial court is presented with two choices. It can grant the motion for summary judgment based on the absence of the separate statement or it can continue the motion or otherwise permit the filing of a proper separate statement. [Citations.] Whichever choice the court makes must be based on the circumstances before the court. ‘A trial court’s exercise of discretion will be upheld if it is based on a “reasoned judgment” and complies with the “… legal principles and policies appropriate to the particular matter at issue.” ’ [Citation.]” (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal. App. 4th 820, 828 quoting Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 94.)

In this case, plaintiff has not simply failed to file a responsive separate statement, she has totally failed to oppose the Motion for Summary Adjudication.

Defendant has met his burden; the Court GRANTS summary adjudication as to the fourth cause of action.

Issues #3 & #4: Seventh Cause of Action – Intentional Infliction of Emotional Distress

“Under the Government Claims Act . . . public entities enjoy statutory immunity from monetary liability for certain classes of claimed damages.” (Asimow, et al., Cal. Prac. Guide: Administrative Law (The Rutter Group 2017) ¶ 13:431; State of Calif. v. Sup. Ct. (Veta Co.) (1974) 12 Cal.3d 237, 245-247.) “Even when there is no immunity from liability, generally ‘no suit for money or damages’ may be brought against a government entity unless and until a timely written claim has been presented to the entity and either acted upon, or deemed rejected (because of the passage of time), by the entity pursuant to the Government Claims Act . . . Failure to present a claim to the public entity as required by the Government Claims Act bars a plaintiff from filing a lawsuit on the claim for ‘money or damages’ against the entity.” (Asimow, et al., supra, at ¶ 13:435; Gov. Code § 945.4.) “The prelawsuit claim filing statutes apply to all forms of claims for ‘money or damages’ against a governmental entity — tort claims, contract claims and even mandamus actions seeking monetary relief.” (Asimow, et al., supra, at ¶ 13:436.)

Defendant argues that plaintiff’s IIED claim is barred for failure to comply with the Government Claims Act because she failed to present a claim for personal injury to the Department of General Services, Government Claims Unit in accordance with Government Code section 911.2. (See Motion, p. 16:7-15.) Government Code section 911.2 provides, in relevant part, that:

“A claim relating to a cause of action for death or for injury to a person . . . shall be presented as provided in Article 2 . . . not later than six months after the accrual of the cause of action.”

(Gov. Code § 911.2, subd. (a).)

The same applies to a tort claim against a public employee. As defendant states in its motion:

“Where recovery of damages from a public employee is sought, the Claims Act requires the presentation, in accordance with its provisions, of all claims for money or damages against public entities.” (Fisher v. Pickens (1990) 225 Cal.App.3d 708, 718.) Someone who sues a public employee on the basis of acts or omissions in the scope of the employee’s employment must file a claim against the public employer pursuant to the procedure for claims against public entities. (Briggs v. Lawrence (1991) 230 Ca1.App.3d 605, 612-613.)

There is no evidence to suggest that plaintiff filed a claim under the Tort Claims Act. Accordingly, the Court finds that plaintiff’s claim is barred and GRANTS summary adjudication of the seventh cause of action.

Issue #5: Punitive Damages

As the Court has already granted summary adjudication of all claims against defendant Ocampo, plaintiff cannot possibly recover punitive damages from him.

Accordingly, the Court GRANTS summary adjudication on the issue of punitive damages.