2013-00152812-CU-OE

Timothy Metcalf vs. The City of Sacramento

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Rogan, Kathleen T.

Defendants the City of Sacramento, William Skinner, Steven Harriman, and Enrique Hernandez (collectively “Defendants”) move for summary adjudication in their favor on the first (racial harassment), second (racial discrimination), third (retaliation), fifth (associational discrimination), and sixth (defamation) causes of action alleged by Plaintiff Timothy Metcalf (“Plaintiff”). Defendants’ motion is GRANTED in part and
DENIED in part as follows.

The Court, in its discretion, has considered Plaintiff’s opposition, which was untimely filed on January 2, 2018. Pursuant to Code of Civil Procedure section 437c, subdivision (b)(2), Plaintiff’s opposition was due to be filed no later than December 29, 2017, fourteen days before the noticed hearing on the motion. However, Defendants did not object to the late filing, and no prejudice has been shown; Defendants timely filed a reply on January 5, 2018.

Evidentiary Objections

Plaintiffs’ evidentiary objections nos. 1-3 are overruled.

Defendants’ evidentiary objections nos. 1-4, 9, and 11 are overruled; Defendants’ evidentiary objections nos. 5-8 and 10 are sustained.

Factual Summary

The following facts are not substantively disputed.

This action arises out of Plaintiff’s former employment with Defendant City of Sacramento (the “City”). Plaintiff is an African American male who worked for the City for 34 years. Plaintiff worked as a route supervisor in the City’s Division of Solid Waste and Recycling from 1996 until he retired in 2013.

For the relevant time period, Plaintiff’s direct supervisor was Defendant Enrique Hernandez (“Hernandez”). Defendant Steve Harriman (“Harriman”) ran the entire division as the Integrated Waste General Manager. Defendant William Skinner (“Skinner”) was the Integrated Waste Collection Superintendent and worked directly under Harriman.

Plaintiff historically worked out of the division’s south operational facility in the Meadowview area of Sacramento. In March 2013, Harriman relocated four route supervisors, including Plaintiff. Plaintiff and another route supervisor were moved from

Meadowview to the North Area Corporation Yard (“NACY”), and the two route supervisors who worked at NACY were moved to Meadowview. Plaintiff was unhappy about the transfer and retired shortly thereafter. Three of the four relocated route

supervisors are African American.

Plaintiff contends his transfer was racially discriminatory and retaliatory in violation of the Fair Employment and Housing Act (the “FEHA”). Plaintiff further alleges causes of action for racial harassment, age discrimination, associational discrimination,
defamation, and intentional infliction of emotional distress. Plaintiff’s spouse, Mercedes

Metcalf, alleges a loss of consortium cause of action. Defendants’ motion concerns only Plaintiff’s claims for racial harassment, racial discrimination, retaliation, associational discrimination, and defamation.

Legal Standard

In evaluating a motion for summary adjudication, the Court engages in a three step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary adjudication bears the burden of persuasion that one or more elements of the challenged 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 Code Civ. Proc., § 437c, subd. (p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of his cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal. 4th at 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. (Code Civ. Proc., § 437c, subd. (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 opposing party. ( Aguilar, supra, 25 Cal. 4th at 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. ( Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Discussion

As a preliminary matter, the Court notes Defendants have made no effort to distinguish among themselves in their motion, notwithstanding the fact that they are not all named as defendants in each challenged cause of action. For example, Plaintiff’s second cause of action for racial discrimination is alleged only against the City, but the motion is made by all defendants. There are four defendants, yet they rely on one set of collective facts in their separate statement. Further, separate arguments are not made on behalf of different defendants. Accordingly, the Court is largely constrained to do the same in deciding the motion.

First Cause of Action (Racial Harassment)

Defendants collectively move for summary adjudication on Plaintiff’s racial harassment cause of action, arguing Plaintiff “cannot establish that he was ever subjected to any unwelcome racial harassment.” (Defs.’ Mem. P.&A. ISO Mot. for Summ. Adjudication (“Mot.”) 10:19-20.) Defendants contend “the only act about which Metcalf complains is the intradepartmental transfer, an act that is . . . not harassment.” (Id. at 11:9-11.) Defendants continue, inter alia, that since there is no evidence of any harassment, “there was certainly nothing sufficiently severe and pervasive to have altered Metcalf’s working conditions.” (Id. at 11:12-13.) In support of their motion, Defendants cite to Plaintiff’s deposition testimony where he admits he never heard Skinner make a racially derogatory comment, Hernandez never said anything racially offensive to Plaintiff, and Harriman did not make any racially disparaging comments during a meeting concerning Plaintiff’s relocation to NACY. (Defs.’ Separate Statement of Undisputed Facts (“SUF”) Nos. 4-6, 14.)

Plaintiff rejoins that Defendants have not satisfied their initial burden as the moving party. Alternatively, Plaintiff argues if the burden has shifted, he has submitted sufficient evidence to create a triable issue of material fact that he was harassed. Plaintiff maintains his transfer to NACY was physically harassing conduct. (Opp’n 13:2-6.) Plaintiff also proffers several additional disputed facts, which he contends constitute further instances of harassing conduct by Defendants.

The comments Plaintiff identifies as harassment can be summarized as follows: Hernandez once made a comment about a young African American woman’s “butt,” which Plaintiff considered to be racially derogatory (Pl.’s Resp. to Defs.’ SUF Nos. 6, 7); Harriman once told Plaintiff that his sister-in-law was married to a black man in a “disgusted manner” (Pl.’s Add’l Disputed Facts (“ADF”) No. 3); after Plaintiff and others complained to Harriman about the way management responded to an altercation

between an African American employee and a white employee, Harriman called a meeting and said in a “condescending manner” that he thought the discipline imposed was “just about right” (ADF No. 4); and Harriman often told Plaintiff that he did not like the way Plaintiff talked to him. (ADF No. 5).

The Court notes Plaintiff also states as additional disputed facts that Skinner “favored white employees,” and that Skinner “glared at African Americans.” (ADF Nos. 1-2.) However, the evidence Plaintiff cites in support of these facts does not support their existence. Therefore, they were not considered.

The FEHA makes it unlawful “for an employer . . . or any other person, because of race . . . to harass an employee.” (Gov. Code, § 12940, subd. (j)(1).) To establish a prima facie case of a racially hostile work environment, Plaintiff must show that (1) he is a member of a protected class, (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; and (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876; see also CACI Instruction Nos. 2521A, 2522A.) To establish a racial harassment cause of action, the plaintiff must show he was subjected to offensive comments or other abusive conduct based on plaintiff’s race and that the comments or conduct were sufficiently “severe” or “pervasive” to alter the conditions of employment. (Aguilar v. Avis Rent A Car System Inc. (1999) 21 Cal.4th 121, 130.) “However, the harassment need not be severe and pervasive in order to impose liability; either severe or pervasive will suffice.” (Sheffield v. Los Angeles Cnty. (2003) 109 Cal.App. 4th 153, 161.) Further, the work environment must be both subjectively and objectively hostile. (McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1113.) Hostile work environment claims must be evaluated in light of the “totality of the circumstances.” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 463; accord Oncale v.Sundowner Offshore Services (1998) 523 U.S. 75, 81-82.)

“Harassment is distinguishable from discrimination under the FEHA.” (Serri v. Santa

Clara Univ. (2014) 226 Cal.App.4th 830, 869.) “‘[D]iscrimination refers to bias in the
exercise of official actions on behalf of the employer, and harassment refers to bias
that is expressed or communicated through interpersonal relations in the
workplace.’ [Citation.]” (Ibid.) Typically, harassment in violation of FEHA occurs when

“the social environment of the workplace becomes intolerable because the harassment

(whether verbal, physical, or visual) communicates an offensive message to the
harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705-706

[emphasis in original].) By contrast, “commonly necessary personnel management

actions such as hiring and firing, job or project assignments, office or work station
assignments, promotion or demotion, performance evaluations, the provision of
support, the assignment or nonassignment of supervisory functions, deciding who will

and who will not attend meetings, deciding who will be laid off, and the like, do not

come within the meaning of harassment.” (Reno v. Baird (1998) 18 Cal.4th 640,
646-647 [emphasis added] [internal quotation marks and citation omitted]; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) “These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” ( Reno, supra, 18 Cal.4th at p. 647; Janken, supra, 46 Cal.App.4th at p. 65.)

“Making a personnel decision is a type of conduct of a type that is fundamentally different from the type of conduct that constitutes harassment. Harassment claims are

based on a type of conduct that is avoidable and unnecessary to job performance . . . .

Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.” (Reno v. Baird, supra, 18 Cal.4th at p. 646.) Harassment relates to “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Janken, supra, 46 Cal.App.4th at p. 63 [listing examples of “harassment” as defined in California Code of Regulations-verbal epithets or slurs, physical assault, impeding movement, derogatory posters, cartoons, unwanted sexual advances, etc.].) Commonly necessary personnel management actions generally do not come within the meaning of harassment. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. It has been observed this significant distinction underlies the differential treatment of harassment and discrimination in the FEHA. (Reno, supra, 18 Cal.4th at pp. 645-647 [quoting Janken, supra, 46 Cal.App.4th at pp. 63-65].)

Parenthetically, Janken is helpful in defining what allegations constitute harassment: the California Code of Regulations “provides that harassment includes, but is not limited to, verbal epithets or derogatory comments, physical interference with freedom of movement, derogatory posters or cartoons, and unwanted sexual advances.” ( Janken, at p. 63.)

Again, “[w]hether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances.” (Serri v. Santa Clara Univ., supra, 226 Cal.App.4th at 870 [internal quotation marks and citations omitted].) “These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Ibid. [internal quotation marks and citations omitted]; see also CACI Instruction No. 2524.) “As in sex-based harassment claims, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that he or she was actually offended.” (Serri, supra, 226 Cal.App.4th at 870 [internal quotation marks and citations omitted]; accord Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at pp.130-131.) “‘[H] arassment cannot be occasional, isolated, sporadic, or trivial[;] rather [Plaintiff] must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]’ [Citation.]” (Id. at p. 131.)

Here, Plaintiff’s racial harassment claim fails. First, the Court finds Plaintiff’s relocation to NACY does not constitute “harassment” within the meaning of the FEHA. Rather, it was a personnel management action taken on behalf of the employer. (See Reno v.

Baird, supra, 18 Cal.4th at 646-647.) Plaintiff has failed to allege any facts that go beyond ordinary workplace events.

Further, Plaintiff’s additional proffers of harassing conduct, considered individually or collectively, were not “severe or pervasive” as defined by applicable legal precedent such that they created a hostile work environment based on race. There is no evidence Plaintiff considered the environment so hostile or difficult that it affected his ability to do his job or seriously affected his psychological well-being.

For the foregoing reasons, Defendants’ motion for summary adjudication of Plaintiff’s racial harassment cause of action is GRANTED.

Second Cause of Action (Racial Discrimination)

Defendants move for summary adjudication on Plaintiff’s racial discrimination (disparate treatment) cause of action, arguing the City had a neutral, non-discriminatory reason for Plaintiff’s transfer. (Mot. 14:10-24.) Specifically, Defendants maintain:

Harriman transferred Metcalf and three other supervisors from one yard to another based on management’s overall plan to increase efficiency in the Department and to cross-train drivers and supervisors, and not as pretext for racial discrimination. [Citations.] . . . This transfer was not initiated based on racial animus against a protected class, but rather as part of a larger effort to increase Division efficiency and re-organize the Division. [Citations.] [¶] . . . Metcalf cannot offer any substantial and responsive evidence to rebut this neutral and non-discriminatory reason. [Citation.]

(Id. at 14:10-23.) Paragraph 5 of Harriman’s declaration is the only evidence Defendants cite to support the proffered non-discriminatory reason for Plaintiff’s transfer. In that paragraph, Harriman avers:

In early 2013, I decided to restructure and re-organize the entire Division in an effort to improve the overall efficiency of the Division and to help the Division achieve its mission goals to provide the best service possible to the citizens of Sacramento. In February 2013, I selected four route supervisors to be relocated from one corporation yard to another in order to cross-train other supervisors to become familiar with other work locations, different duties, new drivers, and the working environment in different corporation yards. On February 13, 2013, I issued a memorandum to those supervisors . . . notifying them of the rotation scheduled to begin the following month.

(Harriman Decl. ¶ 5, Defs.’ Index of Evid., Ex. C.)

Plaintiff rejoins that the Court, in its discretion, should deny the motion under Code of Civil Procedure section 437c, subdivision (e) because Harriman’s declaration is the only evidence cited to support Defendants’ stated non-discriminatory reason for Plaintiff’s transfer. (Opp’n 15:3-7.) In the alternative, Plaintiff argues a triable issue of fact exists that Defendants’ stated reason for the transfer is a pretext for discrimination.

Plaintiff presents the following evidence in support of his opposition. Although

Harriman told the route supervisors they were being relocated for “training,” each of the three African-American route supervisors had a significant amount of experience in the Solid Waste Division; they knew most of the employees, all of the territory, and all of the collection routes. (Pl.’s Decl. ¶¶ 1, 27, Pl.’s Evid. In Opp’n, Ex. B; Decl. of W. Brown ¶¶ 1, 27, Pl.’s Evid. In Opp’n, Ex. C; Decl. of H. Brownlee ¶¶ 1, 2, 28, Pl.’s Evid. In Opp’n, Ex. D.) Further, Plaintiff and the other two African American route supervisors declare that no training actually occurred after they were transferred. (Pl.’s Decl. ¶¶ 27, 30; Brown Decl. ¶¶ 25, 28; Brownlee Decl. ¶¶ 26, 29.) No other supervisors were “rotated by location;” less experienced white supervisors were not relocated. (R. Tr. 527:13-14, Pl.’s Evid. In Opp’n, Ex. G.; Pl.’s Decl. ¶ 20.) Also, the February 13, 2013 memorandum is the only document that exists concerning Harriman’s “plan to rotate supervisors.” (R. Tr. 512:7-9.) And the memorandum itself provides no reasoning for the transfers. (Feb 13, 2013 Mem., Defs.’ Index of Evid., Ex. G.)

In their reply, Defendants advance a new argument, contending Plaintiff’s racial discrimination claim fails because Plaintiff’s relocation to NACY is not an “adverse employment action.” (Reply 9:3-9.) The Court does not consider this argument since Defendants’ moving papers do not identify this issue as a basis for summary adjudication of Plaintiff’s racial discrimination cause of action.

“In cases alleging employment discrimination, [courts] . . . us[e] a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court for trials of employment discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.” (Serri v. Santa Clara Univ., supra, 226 Cal.App.4th at 860.) “This test ‘reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.’” (Ibid. [quoting Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317,354].)

“At trial, under the first step of the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting a ‘prima facie case,’ the components of which vary depending upon the nature of the claim, but typically require evidence that ‘“(1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he [or she] sought or was performing competently in the position … held, (3) [the plaintiff] suffered an adverse employment action, . . . and (4) some other circumstance [that] suggests discriminatory motive.”’ [Citations.]” (Serri, supra, 226 Cal.App.4th at 860 [alteration in original]; see also CACI Instruction No. 2500 [stating elements of disparate treatment discrimination cause of action].) “‘A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory-it requires judgment for the

plaintiff.’ [Citation.]” (Serri, supra, 226 Cal.App.4th at 860.) “However, under the second step of the test, ‘the employer may dispel the presumption merely by articulating a legitimate, nondiscriminatory reason for the challenged action. [Citation.]

At that point the presumption disappears.’ [Citation.]” (Id. at 860-861.) “Under the third step of the test, the ‘plaintiff must … have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of

discriminatory motive.’ [Citation.]” (Id. at 861.)

“The McDonnell Douglas framework is modified in the summary judgment context. In a

summary judgment motion . . . ‘the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ [Citation.]” (Serri, supra, 226 Cal.App.4th at 861; accord Jones v. Dep’t of Corrections (2007) 152 Cal.App.4th 1367, 1379.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a

triable issue by producing substantial evidence that the employer’s stated reasons were . . . pretextual, . . . such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination . . . .” (Serri, supra, 226 Cal.App.4th at 861.)

Here, Herriman’s declaration is the only evidence cited to support Defendants’ proffered non-discriminatory reason for Plaintiff’s transfer. Under Code of Civil Procedure section 437c, subdivision (e), “summary [adjudication] may be denied in the discretion of the court if the only proof of a material fact offered in support of the [motion] is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, . . . and that fact is sought to be established solely by the individual’s affirmation thereof.” The Court, in its discretion, denies summary adjudication on Plaintiff’s racial discrimination cause of action pursuant to section 437c, subdivision (e). Denial of summary judgment under this section does not mean that a triable issue of fact exists, but rather that “there is an absence of credible evidence needed by the moving party to prevail on summary judgment.” (Viner v. Sweet

(2004) 117 Cal.App.4th 1218, 1230-1231.)

Even if the Court considered Harriman’s declaration on this point, however, Plaintiff’s evidence cited in its opposition papers is sufficient to create a triable issue of fact as to whether Defendant’s proffered reason is a pretext for racial discrimination. In this regard, it bears noting that Plaintiff has the burden on this motion to provide “‘substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’” A plaintiff is able to meet the burden that a proffered reason is untrue or pretextual if he is able to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons.’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807 [quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005].) As noted, while Harriman told the route supervisors they were being relocated for “training,” each of the three African American route supervisors had a significant amount of experience in the Solid Waste Division and they knew most of the employees, all of the territory, and all of the collection routes. Additionally, Plaintiff and

the other two African American route supervisors declare that no training actually occurred after they were transferred, and no other supervisors were “rotated by location”; less experienced white supervisors were not relocated. A trier of fact might conclude on these facts that the proffered reason for the transfer was untrue or pretextual.

For the stated reasons, Defendants’ motion for summary adjudication of Plaintiff’s racial discrimination cause of action is DENIED.

Third Cause of Action (Retaliation)

“[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.” (Yanowitz v. L’Oreal USA (2005) 36 Cal.4th 1028, 1042.) Retaliatory animus must be “at least a substantial or motivating factor in the adverse employment decision.” (George v. Cal. Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492.)

Defendants argue they are entitled to summary adjudication on Plaintiff’s retaliation cause of action because Plaintiff cannot establish he engaged in any protected activity prior to his transfer to NACY. (Mot. 15:1-25.) Defendants assert: “The only action[] that can be construed as FEHA protected activity is the filing of [Plaintiff’s] complaint with the DFEH on March 12, 2013 [citation]. However, that complaint was filed almost one month after the supervisor relocation memorandum was issued on February 13, 2013. [Citation.] [¶] . . . [T]he transfer cannot be a retaliatory response to protected activity that has not yet occurred.” (Id. at 15:17-23.)

Plaintiff responds his Complaint alleges and evidence demonstrates that he and others complained to Harriman about perceived racial discrimination prior to his transfer. Specifically, Plaintiff and other African American route supervisors Wendell Brown and Harold Brownlee aver that in 2012, they “began complaining to Harriman repeatedly about the blatantly inequitable discipline and treatment of people of color” he imposed as general manager. (Pl.’s Decl. ¶ 6; Brown Decl. ¶ 5; Brownlee ¶ 6.) They also declare that in “early 2013, [they] complained to Harriman about the manner in which [he] and his management team were dealing with a racial problem created by [an] altercation between Desmond Rucker (African American) and Ken German

(white).” (Pl.’s Decl. ¶ 9; Brown Decl. ¶ 8; Brownlee Decl. ¶ 9.) Plaintiff, Brown, and Brownlee aver that shortly after making that complaint, they were transferred. (Pl.’s Decl. ¶¶ 11-13; Brown Decl. ¶¶ 9-11; Brownlee Decl. ¶¶ 10-12.)

The Court finds the referenced evidence creates triable issues of fact that Plaintiff engaged in protected activity prior to his transfer and that the transfer was retaliatory. “Protected activity” under FEHA encompasses a broad range of activity. (See Cal. Gov. Code § 12940, subd. (h) [stating it is unlawful for “any employer . . . to . . .

discriminate against any person because the person has opposed any practices forbidden under this part”].) “An employee need not use specific legal terms or buzzwords . . . . Nor is it necessary for an employee to file a formal charge.” (Rope v. Auto-Chlor System of Wash., Inc. (2013) 220 Cal.App.4th 635, 652; see also Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 474 [“An employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct . . . .”].)

In reply, Defendants argue Plaintiff’s informal complaints to Harriman cannot be used as the requisite protected activity because any complaints made prior to March 8, 2012 are time barred and Plaintiff’s “self-serving declaration contradicts his deposition testimony.” (Reply 12:1-23.) The Court disagrees. First, the informal complaints are not time barred because the claimed retaliatory conduct, i.e., Plaintiff’s transfer, did not occur until March 2013. (See Morgan v. Regents of the Univ. of Cal. (2000) 88 Cal.App.4th 52, 63 [“[T]he FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred’ [citation]. . . .”].) It does not matter that some of the predicate protected activity happened more than a year before Plaintiff’s DFEH Complaint was filed. Second, Plaintiff’s declaration does not contradict his earlier deposition testimony. During Plaintiff’s deposition, he testified that he never complained to the City about Harriman’s behavior, other than in connection with his transfer to NACY and Harriman’s delay in approving a vacation request. Plaintiff’s declaration concerns complaints he made directly to Harriman. Moreover, even if Plaintiff’s declaration and deposition testimony were conflicting, the declarations of route supervisors Wendell Brown and Harold Brownlee also support Plaintiff’s claim that he engaged in protected activity prior to his transfer.

For the stated reasons, Defendants’ motion for summary adjudication of Plaintiff’s retaliation cause of action is DENIED.

The Court notes Defendants also argue for the first time in their reply that Plaintiff’s transfer was not an adverse employment action. The Court did not consider this argument since it was raised for the first time in reply.

Fifth Cause of Action (Associational Discrimination)

Plaintiff’s fifth cause of action alleges the City unlawfully discriminated against him in violation of the FEHA because of Plaintiff’s association with other African American managers. (Compl. ¶¶ 89-100.)

Defendants move for summary adjudication on this cause of action, arguing since Plaintiff is a member of the same protected class himself, his cause of action is one for direct, not associational, discrimination. (Mot. 16:1-26.)

The Court agrees. The FEHA defines protected classes such as “race” and “physical disability” as including “a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Gov. Code, § 12926, subd. (o).) This definition expands the pool of who comprises potential FEHA discrimination plaintiffs; it does not create a separate cause of action. (See CACI Instruction No. 2055, Directions for Use p. 1403 [“Modify element 4 if plaintiff was not actually a member of the protected class, but alleges discrimination because he or she was perceived to be a member, or associated with someone who was or was perceived to be a member, of the protected class.”]; see also

Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037 [discussing how to modify the elements of a disability discrimination cause of action in “the associational discrimination context”].)

Therefore, Defendants’ motion for summary adjudication on Plaintiff’s cause of action

for associational discrimination is GRANTED.

Sixth Cause of Action (Defamation)

“Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.” ( Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)

Defendants again collectively move for summary adjudication on Plaintiff’s defamation cause of action, arguing Plaintiff “admits that none of the Defendants, not Harriman, Hernandez, or Skinner ever made a defamatory statement about him.” (Mot. 17:11-14 [emphasis added].) In support of their motion, Defendants cite to a portion of Plaintiff’s deposition testimony where he was asked to identify any defamatory statements Defendants made. Although Plaintiff did testify that neither Skinner nor Hernandez made a defamatory statement about him (see Pl.’s Depo 89:24-90:15; Pl.’s Resp. to SUF Nos. 66-67), Plaintiff identified three statements Harriman made, which Plaintiff contends are defamatory. (Pl.’s Depo 87:22-89:23; see also Pl.’s Resp. to SUF Nos. 61-65.) These statements include Harriman accusing Plaintiff of lying about his whether he intended to retire after returning from vacation. (Pl.’s Depo 89:2-12.)

As the motion is structured, Plaintiff’s deposition testimony creates a triable issue of material fact whether any defendant made a defamatory statement about him. Accordingly, Defendants’ motion for summary adjudication on Plaintiff’s defamation cause of action is DENIED.

Conclusion

Based on the foregoing, Defendants’ motion for summary adjudication is GRANTED as to the first (racial harassment) and fifth (associational discrimination) causes of action. The balance of the motion is DENIED.

Defendants’ counsel shall prepare an order for the Court’s signature pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.