Tiffany Villaber vs. Board of Trustees
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
Ryan, Lisa V.
Defendants Board of Trustees of the California State University (“University”), Katerina Donato, Valerie Kessler, Dan Davis, Sam Sanchez, Victor Vinson, and Tony Lucas’ motion for summary judgment, or in the alternative, motion for summary adjudication is granted.

The Court received but did not consider Plaintiffs’ 22 page “objections to Defendants’ reply brief” filed on January 9, 2014. While it purports to contain “objections” it is in essence an unauthorized surreply to Defendants’ reply, attempting to address points they failed to address in their opposition, and arguing that many issues in the reply brief were not raised in the original moving papers and also arguing that the reply was untimely served. The Court simply notes the following: While the surreply argues that many points in the reply were not raised in the moving papers, Plaintiffs are incorrect. In addition, the reply served by overnight mail on November 27, 2013, was timely served in advance of the original December 3, 2013 hearing. In any event, there was no prejudice given the matter was ultimately continued to today’s date.Plaintiffs Tiffany Villaber (“Villaber”) and Greg Thompson (“Thompson”), both current employees of University, allege numerous causes of action against defendants for race discrimination, retaliation and disability discrimination in violation of FEHA, improper disclosure of medical information in violation of Civil Code § 56.20(c), public disclosure of private facts, IIED, meal and rest period violations, sexual harassment, violation of the whistleblower act, and negligent retention. The FAC arises out of allegations that the two plaintiffs, who began dating and eventually married, were subjected to various forms of discrimination, harassment, and retaliation throughout the course of the employment based on disapproval of their interracial marriage and Villaber’s pregnancy. Villaber is a dispatcher for the University Police Department and Thompson is currently a detective with the University Police Department. Villaber self-identifies as an Anglo-American and Filipino-American and Thompson is African-American.

In their approximately 40 page memorandum, Defendants’ move for summary judgment, and or summary adjudication as to the twelve causes of action in the approximately 50 page first amended complaint on numerous grounds. The Court’s review of the papers in support of and in opposition to the instant motion was not an
insignificant task.

First and Third Causes of Action (FEHA Discrimination (Race and Disability) as alleged against the Individual Defendants Kessler, Davis, Donato, Sanchez, and Vinson) and Second and Eleventh Causes of Action (FEHA Retaliation as alleged against the Individual Defendants Kessler, Davis, Donato, Sanchez, Vinson, Lucas)Defendants seek summary adjudication of these causes of action on the basis that they cannot be maintained against individual defendants. Individual employees, managers and supervisors of covered employers are not personally liable for FEHA Discrimination. (Reno v. Baird (1998) 18 Cal.4th
640, 663.) Plaintiffs do not oppose this portion of the motion and thus the motion for summary adjudication as to the First and Third Causes of Action for FEHA discrimination against defendants Kessler, Davis, Donato, Sanchez, and Vinson is granted.

Similarly, individual employees, managers and supervisors are not personally liable for
FEHA retaliation claims. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1160.) Again Plaintiffs do not oppose this portion of the motion and thus the motion for summary adjudication as to the Second and Eleventh Causes of Action for FEHA retaliation against defendants Kessler, Davis, Donato, Sanchez, Vinson, and Lucas is granted.

First Cause of Action (FEHA Discrimination (Race) as alleged by Villaber and Thompson against University, Kessler, Davis, Donato, Sanchez, and Vinson) Defendants first move for summary adjudication on the basis that Plaintiffs cannot demonstrate they suffered any adverse action. To be an adverse action, an employer’s act must “constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with different responsibilities or a decision causing a significant change in benefits.” (Burlington Indus., Inc. v. Ellerth (1998) 524 U.S. 742, 761.) Villaber alleges that Defendants “reprimanded and ridiculed her job performance and used disciplinary procedures to take adverse action against her.” (FAC ¶ 89.)

Defendants’ evidence shows that Plaintiffs are both University employees. Thompson was promoted to Detective in 2012. (UF 1-2) He was granted vacation days that he sought in 2012. (UF 3) Plaintiff Villaber received a 20 month maternity leave between November 2010 and July 2012. She was given a three percent raise effective 1/1/2013. (UF 4-5) University’s collective bargaining agreement defines “reprimand” as a “written communication from an appropriate administrator to an employee that criticizes or otherwise comments negatively upon the personal/professional conduct and/or job performance of the employee if that written communication is placed in the official personnel file. Performance evaluations or notices of performance expectations or rules and regulations do not constitute a reprimand.” (UF 6) The only racial comment Villaber heard was in connection with her response to a question by Defendant Kessler as to whether she would date Thompson, to which he replied “[e]ww! You like chocolate? That’s nasty!” (UF 8) No other University employee made any racial comments that she found offensive. (UF 10) Defendant Vinson never told Thompson that he had a problem with his interracial relationship and Thompson never heard Vinson or others comment on Filipinos or people of Pacific Island descent. (UF 11-12) Neither Defendant Donato nor Kessler ever said anything to him regarding race or dating Villaber. (UF 13) Thompson never heard Defendant Davis say anything regarding his dating Villaber and he never reported any race-related concerns to Davis. (UF 14)

Defendants’ evidence is sufficient to demonstrate that Plaintiffs were not subject to any adverse action and sufficient to shift to them the burden of demonstrating the existence of a triable issue of material fact.

In opposition, Plaintiffs argue, with no analysis and no specific citation to any evidence, that they were subjected to adverse action based on their race in that “Defendants Donato, Kessler and Vinson used their limited authority as direct supervisors to change schedules of [Plaintiffs]; used state resources for the sole purpose of documenting bathroom breaks, deny time off; deny vacation time to the Villaber/Thompson family; disclosure of medical information, denial of reasonable accommodations and write a letter of counseling for actions Mr. Thompson had approval from his direct supervisor.” (Oppo. 11:22-26.) However, not only do Plaintiffs fail to articulate which of them suffered which of these actions, but there is no argument as to how any of these actions amount to an adverse action under the law, specifically, that any amounted to a “substantial adverse change in the terms and conditions of [their] employment.” (Jones v. Dep’t of Corr. & Rehab.(2007) 152 Cal.App.4th 1367, 1379.)

The sum and substance of Villaber’s adverse action claim is that she had to obtain dispatch coverage from the on-duty Sergeant before taking a restroom break when she was pregnant in July 2010 and she was required to take a refresher training course when she returned from a 20 month maternity leave in 2012. Though never spelled out in any cogent manner, apparently she believes that these actions were taken when no other employee had ever been subjected to such actions. Even if true, and supported by admissible evidence, which she failed to direct the Court to, no reasonable trier of fact could find that these acts constituted a substantial adverse change in her employment.

As it relates to Thompson, the gist of his claim is that Vinson wrote a counseling memo motion directed to this cause of action.

Fourth, Fifth, and Twelfth Causes of Action (Disclosure of Medical Information [Civ. Code § 56.20(c)], Public Disclosure of Private Facts, Negligent Retention) Defendants seek summary adjudication on these causes of action on the basis that Plaintiffs failed to allege compliance with or excuse from the Tort Claims Act (TCA). Compliance with, or excuse from compliance with the TCA is an essential element of these non-FEHA based causes of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243-1244.) Here, there is no dispute that Plaintiffs made no such allegations and do not contend otherwise in their opposition papers or even attempt to address this argument. As a result, the motion for summary adjudication as to the Fourth, Fifth and Twelfth Causes of Action on the basis that Plaintiffs failed to comply with or show they were excused from complying with the TCA is granted. Given this finding, the Court need not and does not address any other arguments in support of summary adjudication as to these three causes of action. Sixth Cause of Action (IIED as alleged by both Plaintiffs against all Defendants) Plaintiffs allege that all Defendants “engaged in extreme and outrageous conduct by discriminating based on race, by denying reasonable accommodations to a pregnant woman, by disclosing medical information to Ms. Villaber’s coworkers, by requiring Officer Thompson to train with a loaded firearm, by repeatedly harassing Plaintiffs regarding their interracial relationship and subsequent marriage.” (FAC ¶ 145.)

Defendants seek summary adjudication on the basis that the cause of action is barred by Workers’ Compensation, and that there is no evidence of extreme and outrageous conduct.

Here, the Court agrees with Defendants’ that the IIED cause of action is precluded by the Workers’ Compensation provisions as the conduct complained of occurred in the normal course of the employer-employee relationship. (Mikolsky v. Regents of University of California (2008) 44 Cal.4 th 876, 902.) In opposition, Plaintiffs only argue that discrimination is not within the normal course of the employer-employee relationship. (Oppo. 17:17-18.) While they are correct, that proposition does not help them because as discussed in this ruling, Plaintiffs have failed to demonstrate a triable issue of fact on any of their discrimination, harassment or retaliation claims. As a result, this cause of action boils down to nothing more than allegations regarding conduct that is encompassed by the employer-employee relationship and is barred by the Workers’ Compensation Act. (See Jones v. Department of Corrections & Rehabilitation, (2007) 152 Cal.App.4th 1367, 1382 (“Because we conclude Jones did not establish discrimination, her causes of action for emotional distress fail to the extent they are tethered to the discrimination claim.”) Further, “[t]o the extent [Cross-Complainant] purports to allege any distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy, but rather directed at the intentional, malicious aspects of [Cross-Defendants’] conduct,…[e]ven if such conduct may be characterized as intentional, unfair, or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.) See, also, Cole v. Fair Oaks Fire Protection Dist. (1987) 43 C.3d 148, 157; Valenzuela v. California (1987) 194 C.A.3d 916, 923, 924. The motion is therefore granted.

The Court need not reach the remaining arguments in support of this portion of the motion.

Seventh Cause of Action (Labor Code § 512 as alleged by Villaber against University) In this cause of action, Plaintiffs allege that University violated Labor Code § 512 with respect to Villaber’s meal and rest period. Labor Code § 512 does not apply to public employers. (Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4 th 729, 736.) Defendant’s evidence is sufficient to shift to Plaintiffs the burden of existence of a triable issue of material fact. Citing Dimon v. County of Los Angeles (2008) 166 Cal.App.4 th 1276, Plaintiffs argue that Section 512 applies if a “public employer’s governing board ratifies a collective bargaining agreement and its actions were done by resolution.” (Oppo. 18:12-14) They assert that Dimon
states “in relevant part that when a governing board agreed to be bound by contractual terms, California Labor Code section 512 applies.” (Id. 19:1-2.) Dimon stated no such thing. First Dimon dealt with Charter Counties and reiterated the rule that the subjects covered by the Labor Code (e.g., meal periods, etc.) are matters within those counties’ purview and not subject to Labor Code provisions. (Dimon, supra, 166 Cal.App.4 th at 1283.) Further, the Court there held that a County’s approval of an MOU covering deputy probation officers which covered meal breaks in a manner different than that found in the Labor Code precluded application of contrary provisions of the Labor Code. (Dimon, supra, 166 Cal.App.4th at 1284-1285.) Dimon thus fails to demonstrate that Plaintiffs can assert a claim for violation of Labor Code § 512 and in fact confirms they cannot. Villaber worked for a public employer and was subject to a CBA which does not allow for application of Labor Code § 512. Defendant’s motion is granted.

The Court need not and does not consider the additional arguments in support of this motion, specifically, that Villaber cannot succeed on this cause of action even if Defendant University was subject to Labor Code § 512.

Eighth Cause of Action (FEHA Sexual Harassment as alleged by Villaber against defendants Sanchez and University) Villaber alleges that she was sexually harassed by defendant Sanchez based on his request that she go on a motorcycle ride with him and that he occasionally “lingered” in the dispatch area by standing by her desk such that his “genitalia” was in her line of sight. Defendants’ evidence shows that Villaber never told Sanchez she did not want to go on a motorcycle ride with him, instead saying “Yeah, okay.” (UF 53) Further, Sanchez never mentioned the ride after the initial inquiry. (UF 54) Sanchez stood near other dispatchers in the same way he stood by Villaber when she was at her desk. (UF 55) Villaber never complained to management about Sanchez asking her to go on a motorcycle ride or lingering near her. (UF 56) In June 2010, Sanchez told her that she needed to notify an officer in charge when she needed a break. This was a policy that applied to all dispatchers.

Defendants’ evidence shows that the alleged conduct is not severe or pervasive as it did not alter “the conditions of [Villaber’s] employment and create[ ] an abusive working environment.” (Hughes v. Pair (2009) 46 Cal.4 th 1035, 1042.) In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine of a generalized nature.

In opposition, Villaber simply recites the elements of a sexual harassment claim with no analysis. (Opp. 19:11-16.) She vaguely suggests that Sanchez texted her and left her a voicemail regarding the motorcycle ride, but as pointed out by Defendants, those communications were actually part of the same request to go on the ride, not additional requests. (Villaber depo. (181:2-8.) Plaintiffs failed to demonstrate a triable issue of material fact. Defendants’ motion is granted.

The Court need not and does not consider the additional arguments in support of this motion, specifically, that University cannot be liable because Villbaer never complained to management and that there was no causal link between Sanchez’s conduct regarding the ride in 2009 and informing her of the break policy in 2010.

Ninth Cause of Action (FEHA Sexual Harassment as alleged by Thompson against University) Thompson alleges a claim for sexual harassment against University based on text messages he allegedly received on his University-issued phone. He alleged that they came from University employee Gloria Moraga whom he neither knew nor worked for. Defendants’ evidence shows that Thompson and Gloria Moraga work in different departments and do not know each other. (UF 60) Thompson complained about text messages received from her by filing a complaint in December 2012. University immediately investigated the incident and obtained a text report from Moraga’s cell phone. (UF 61-62) University determined that Thompson’s complaint was unfounded as it found that he failed to take steps to stop the messages and perpetuated an illusion that he was someone else while continuing to text Moraga. Thompson appealed the determination to the Chancellor’s office and the decision was upheld. (UF 63-65)

While Plaintiffs indicate in opposition that Gloria Moraga was dismissed from the lawsuit, and do not address this cause of action, it still remains against the University and thus the Court addresses it in this ruling.

Defendants’ evidence is sufficient to show that the conduct complained of was neither severe nor pervasive such that the conditions of Thompson’s employment nor were the text messages unwelcome. (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 279.) Thompson failed to oppose this portion of the motion and therefore it is granted.

Tenth Cause of Action (Violation of Whistleblower Act, Gov’t Code § 8547.12 as alleged by Thomson against defendants Vinson and University) Defendants move for summary adjudication on this cause of action in which Thompson alleges he was retaliated against when he was denied vacation time and issued negative performance reviews on the basis that he did not file a written complaint as required by Government Code § 8547.12.

Pursuant to Government Code § 8547.12(c) “any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university…” Defendants’ evidence shows that Thompson never filed a complaint and instead that he talked to his union about doing so but “chose not to.” (UF 67) Only “a CSU employee who has complied with CSU’s internal complaint and investigation requirements and received an adverse decision from CSU may bring a civil action for damages against those allegedly responsible for unlawful retaliation.” (Runyon v. Board of Trustees of California State Univ. (2010) 48 Cal.4th 760, 775; see, also Campbell v. Regents of the University of California (2005) 35 Cal.4th 311.) Here, Thompson fails to dispute that he never filed the required complaint and therefore he has failed to demonstrate a triable issue of material fact and Defendants’ motion is granted.

The Court need not address the additional arguments raised in support of this motion.

Eleventh Cause of Action (FEHA Retaliation as alleged by Villaber against defendants Lucas, Donato, Kessler and University) Villaber alleges that defendants Kessler, Donato, Lucas and Univeristy retaliated against her for filing the instant action because she was required to participate in a refresher training course upon her return from her extended pregnancy leave. Defendants’ evidence shows that Villaber began her maternity leave on November 26, 2010. When she notified University that she intended to return to work in August 2012, it made arrangements to return her to her public safety dispatch position. (UF 70) When she returned there were 3 full time dispatchers and only two, Donato and Kessler, were POST certified trainers. (UF 71) When she returned, she was informed by Tony Lucas that she would be given a refresher training course because she had been away for almost two years. (UF 72) The purpose of the course was to refresh Villbaer’s dispatch skills and get her up to speed on new dispatch procedures as there had been a number of changes in the twenty months since she last worked. (UF 73) Lucas informed Plaintiff that the training was not a recertification and Plaintiff did not receive any discipline/negative evaluations associated with the training. Villaber was cleared to cover her own shifts within four weeks of returning to work. (UF 74-76) Defendants’ evidence is sufficient to show that Villaber was not subject to any adverse action when she returned from her pregnancy leave. Indeed, the evidence demonstrates that the refresher course, which was necessary given Plaintiff had been on leave for almost two years, was not an adverse action as it did not amount to a “substantial adverse change in the terms and conditions of [Villaber’s] employment.” (Jones, supra, 152 Cal.App.4th at 1379.) In opposition, Villaber appears to suggest that she was singled out and treated differently than other employees in having to participate in this refresher course, though she submits no evidence that she was treated differently than any other employee in similar circumstances (e.g. returning from a 20 month absence) and in fact admitted that she knew of no other employee who had been provided 20 months leave. (Villaber Depo. 209:6-9.) Thus, Villaber failed to demonstrate the existence of a triable issue of material fact and Defendants’ motion is granted.

Defendants’ evidentiary objections are ruled upon as follows. Objections 2, 4-6, 12, 13, 20, 21 are sustained. The remainder are overruled. As mentioned at the outset of the ruling, the Court did not consider Plaintiffs’ 22 page “objections to Defendants’ reply brief.” However, to the extent considered, they are overruled as they are not objections to specific evidence as required by CRC Rule 3.1354(b).

Having obtained summary adjudication on all causes of action asserted against them in the FAC, Defendants’ motion for summary judgment is granted. Defendants’ counsel shall prepare for this Court’s signature an order and a judgment of dismissal pursuant to CCP § 437c(g) and CRC Rule 3.1312.