Lawzilla Additional Information: Plaintiff is represented by attorney Marta Vanegas

18-CIV-03131 JON A. PRIOLO VS. THE CITY OF SAN BRUNO, ET AL

JON A. PRIOLO THE CITY OF SAN BRUNO
ANDREW P. MATERA STEVEN P. SHAW

MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

I. Procedural Notes

A memorandum opposing summary judgment may not exceed 20 pages. (CRC Rule 3.1113(d).) Plaintiff has blatantly violated the Rule by filing an unreasonably lengthy Memorandum that is 31 pages long, without requesting leave of court. (See id. Rule 3.1113(e).) The Court could strike the Opposition and order Plaintiff to file a proper one. Instead, the Court admonishes and directs attorneys John F. Martin, Marta R. Venegas, Brittany C. Jones, and the entire law firm of Martin& Vanegas to learn and comply with all Rules of Court in this and every other case.

Plaintiff also has filed, without leave of court, two sets of supplemental evidence (July 19 and 22) after Defendant had already filed its Reply papers. Plaintiff never sought leave for the delinquent filing or offered any good cause for doing so. The Court strikes both filings.

II. Objections to Evidence

The Court OVERRULES Defendant’s Objections 1, 2, and 3. The evidence is relevant, not lacking in foundation, and not hearsay. The remainder of Defendants’ objections (pp. 3:623) are not objections to evidence. (See CRC Rule 3.1354(b))

III. First Cause of Action – Harassment.

The motion as to the first cause of action (sexual harassment) is DENIED as to Defendant City of San Bruno. The motion is GRANTED as to Defendants Minkin, Charles, Berube, and De La Cruz.

A. Statute of Limitations (Issue 1) Plaintiff filed his claim on March 15, 2016. The Claim form says that the actionable conduct occurred between September 13, 2015 and March 3, 2016. The Complaint alleges acts occurring as early as 2010 through 2013.

Defendant argues that the First Cause of Action fails because the acts described in the Complaint (from 2010 through 2013) occurred more than one year before Plaintiff filed his government claim. Plaintiff responds that the “narrative” of the claim is broader because it states that the last act was on September 13, 2015. The text of the Claim is internally inconsistent; one part states that the incidents began on September 13, 2015, whereas the narrative states that September 13, 2015 was the “last of” the incidents. The discrepancy is a material fact that the Court may not resolve on summary judgment.

Plaintiff references the continuing violations doctrine. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802 (liability for actions occurring outside limitations period if actions are sufficiently linked to conduct occurring within limitations period).) Issues for summary judgment are framed by the pleadings. The Complaint alleges acts that occurred more than one year before Plaintiff filed his claim, as well as within one year. (Complaint ¶¶ 16, 21, 22.) The motion does not address the issue of continuing violations. Therefore, the motion fails to dispose of the entire cause of action on the ground that the claim is timebarred.

Defendant’s argument might dispose of the First Cause of Action only to the extent of incidents occurring more than one year before March 15, 2016. The argument does not, however, dispose of the claim to the extent it is based on acts within one year of March 15, 2016. Since the motion fails to dispose of the entire cause of action, it must be denied.

B. As to Individual Defendants (Issue 2) The motion is granted as to Defendants Ben Minkin, Tyler Charles, Sean Berube, and Chris De La Cruz. Plaintiff concedes the merits of the motion as to the individual defendants. Since Plaintiff has not dismissed the individual defendants, the motion should be granted as to them.

C. Failure to Establish Prima Facie Case. (Issue 3)

The motion is DENIED as to Issue 3.

1. A Triable Issue Exists About Whether Minkin’s Conduct Was Severe or Pervasive.

Isolated incidents, if extremely serious, may amount to discriminatory changes in the terms and conditions of employment. (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.) “Even one act of harassment will suffice if it is egregious.” (Worth v. Tyler (7th Cir. 2001) 276 F.3d 249, 268.) Defendant’s motion argues that this action is based on a single incident from September 2015. In contrast, the evidence shows several incidents in which Minkin exposed himself to Plaintiff. (See Decl. of Priolo para. 2; UMF 26; Decl. of Yuki para 20, Ex. E.) The incidents of Minkin’s alleged exposure could be sufficiently “severe” for purposes of harassment, even if it was just one incident. The conduct could constitute the crime of indecent exposure. (See Pen. Code § 314 (misdemeanor to expose private parts where persons can be offended].) Whether the exposure constitutes “severe” conduct is a triable issue.

Plaintiff’s evidence is that Minkin exposed himself “between 2010 and 2015.” (Investigative Report at 18 (Decl. of Yuki, Ex. E). Whether the number of incidents is pervasive is a question of fact. The motion offers no evidence that the incident occurred no more than once.

2. A Triable Issue Exists About Whether the City Took Immediate Action

Harassment by a non-supervisor is actionable only if the employer “or its agents or supervisors, knows or should have known” of the conduct and “fails to take immediate and appropriate corrective action.” (Gov’t Code sect. 12940, subd. (j)(1).) Minkin was not a supervisor, and it is undisputed that City was made aware of Plaintiff’s complaints. The issue is whether City took immediate corrective action.

Defendant’s motion relies on UMFs 26, 28, and 29 (action taken in March 2016). Plaintiff points out, however, that the harassment spanned from 2010 to 2015. (Opposition to UMF 9). After Plaintiff raised these incidents, the captains trivialized it as personal differences and failed to report the behavior up the chain of command or to instruct Plaintiff to take his complaint to City Hall. (DMF 9i & 9k.) In light of the complaints from 2010 to 2015, Defendant’s only action was to terminate Minkin in March 2016. Therefore a triable issue exists about whether Defendant City’s corrective action was “immediate,” as required under Government Code section 12940(j)(1).

IV. Second Cause of Action (Retaliation) The motion is GRANTED as to the second cause of action for retaliation.

A. The Undisputed Material Facts Show that Plaintiff Did not Suffer an Adverse Employment Action

Plaintiff bases his retaliation claim on three incidents, none of which constitute an adverse employment action for purposes of the claim of retaliation.

1. Failure to Be Offered Receive Training for Captain’s Test

Defendants’ evidence shows that no formal training was offered to any firefighters for the exam. Rather, some on-duty firefighters requested informal assistance from supervisors. (UMF 53, 54, 55.) During that time, Plaintiff was on leave and did not request any assistance (UMF 25 & 43.) Union President Berube offered to arrange training for Plaintiff, who declined. Plaintiff presents no evidence that his failure to be offered training was intentional as an “action” taken against him.

2. Chief Cresta’s Comments

Cresta made several comments that Plaintiff assumed were directed at him, but Plaintiff’s speculation does not raise a triable issue. (See, e.g., Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) “Adverse employment action” means “employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1053–54.) Plaintiff offers no evidence that because of Cresta’s comments, Plaintiff’s position or compensation was affected or that his job was made more difficult. “A mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment” for purposes of a retaliation claim. (Yanowitz, supra, at 1054, n.13 (citations to cases holding that acts causing employee to feel frightened, humiliated, embarrassed, “bruised ego,” and ostracism are insufficient).)

3. Failure to Resolve Plaintiff’s Dispute with De La Cruz.

After Plaintiff complained to Captain Charles about the verbal dispute Plaintiff Priolo had with De La Cruz, Charles responded, “”Stop. You’re just fucked up. You bumped Chris. And we can agree to disagree. This conversation is over.” (UMF 84.) Plaintiff characterizes this incident as the Captain’s “doing nothing to diffuse a tense situation”. Plaintiff cites no authority, and Court finds none, that this type of response from constitutes an adverse employment action for a retaliation claim. Plaintiff offers no explanation why the response by the Captain is “materially affects the terms, conditions or privileges of employment.”

4. The Incidents Are Unrelated.

A series of separate acts collectively may constitute an “adverse employment action,” even if none of the acts individually is actionable. (Yanowitz, supra, 36 Cal.4th at 10551056.) However, a series of events that bear little relationship to the other does not constitute a “continuous course of conduct.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 390.) The acts that Plaintiff describes as retaliation do not appear related to each other (failure to receive training; Chief Cresta’s remarks; Captain Charles’s failure to diffuse the argument between Priolo and De La Cruz). None of the three incidents alone constitutes an adverse employment event, and the three incidents collectively are not a continuous course of conduct, since they are all disparate. Alone or together, the incidents do not constitute an adverse employment action. B. The Motion Fails to Establish a Lack of “Nexus” or Causal Link

As to the three incidents on which the retaliation claim is based, Defendant’s motion argues that no nexus between protected activity and retaliation exists, because the evidence does not show that the actors knew about Plaintiff’s EEOC complaint. Defendant’s motion offers the following:

1. The Captain’s Test. Defendant argues that “there is no indication that the officers who instructed firefighters knew about Plaintiff’s complaints to the EEOC.” (Moving P&A at 25:6-11.) For a summary judgment motion that argues an absence of evidence, it is the moving party’s burden to show affirmatively that evidence does not exist. (See Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal. App. 4th 64, 83.) Defendant offers no factual showing that Plaintiff has no evidence that officers knew of Plaintiff’s complaint. Further, the motion fails to demonstrate that Plaintiff “cannot reasonably obtain” the evidence. (Aguilar v. Atl. Richfield Co., (2001) 25 Cal. 4th 826, 854–55.) 2. Chief Crepsa’s Comments. Defendant argues “there is no evidence” that the comments were directed at Plaintiff. (Moving P&A at 25:11-14.) This is not an argument about nexus or causation. The argument fails to establish that Chief Crespa did not know about Plaintiff’s complaints.

3. Argument with De La Cruz. Defendant argues that “there is no evidence” that any conduct by De la Cruz was due to Plaintiff’s protected activity. Again, on summary judgment, it is the moving party’s burden to show that no evidence exists and that Plaintiff cannot reasonably obtain the evidence. The motion fails to meet that burden.

Defendant fails to meet its moving burden of establishing that the persons who acted adversely to Plaintiff knew of his EEOC complaints. The “nexus” argument does not support summary judgment.

V. Ruling

Defendants’ objections 1, 2, and 3 are OVERRULED.

Defendants’ motion for summary judgment is DENIED for failure to dispose of the entire action.

Defendants’ motion for summary adjudication is DENIED as to Issue 1 (statute of limitations as to first cause of action) and Issue 3 (prima facie case of first cause of action).

Defendants’ motion for summary adjudication is GRANTED as to Issue 2 (first cause of action as to Defendants Charles, Berube, and De la Cruz) and Issue 4 (second cause of action).

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.