Lee v. Fountain Valley

If the employer satisfies its initial burden, it will be entitled to summary [adjudication] unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” ((Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.)

“[T]o avoid summary judgment [once the employer makes the foregoing showing], an employee claiming discrimination must offer 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.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)

“Whether summary adjudication is appropriate will depend on a number of factors, including the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case.” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.)

The employee’s “subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) To the contrary, the employee’s evidence must prove, by non-speculative evidence, the existence of “an actual causal link between prohibited conduct and termination.” (Id. at pp. 433-434.)

“The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.)

“[M]any employment cases present issues of intent and motive ... [which] ‘are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.’ ” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904; see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [“[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper;” such cases are “rarely appropriate for disposition on summary judgment.”].)

II. First Cause of Action: Racial Discrimination

Plaintiff’s first cause of action is for racial discrimination in violation of Government Code section 12940. Defendant argues that (1) there is no temporal proximity between the alleged comments and Plaintiff’s termination, (2) there were numerous legitimate business reasons for Plaintiff’s termination, and (3) Plaintiff fails to establish pretext.

“A claim of racial discrimination under FEHA is a ‘disparate treatment’ claim.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 424.) “The elements of a disparate treatment claim are ‘(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.’” (Id., 424–425.)

The court requests that the parties be prepared to address the following questions with regard to the issue of temporal proximity: (1) what racially charged statements were made? (2) when were those comments made? (3) should the court consider only the temporal proximity between the racially charged comments and the termination of Plaintiff’s employment, or also the proximity with Plaintiff’s poor performance reviews? The parties are asked to give consideration to the opinion in Arteaga v. Brink’s Inc.

III. Second Cause of Action: Age Discrimination

“In the context of the usual age discrimination case, a prima facie case of age discrimination arises when the employee shows that: (1) at the time of the adverse employment action, the employee was 40 years of age or older; (2) some adverse employment action was taken against the employee; (3) at the time of the adverse action the employee was satisfactorily performing his or her job; and (4) the employee was replaced in his or her position by a significantly younger person.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 424; see also Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

“In order to establish a prima facie case of age discrimination in termination from employment the plaintiff must establish, inter alia, he was performing satisfactorily at the time of termination and he was replaced in his position by a significantly younger person.” (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1657.)

“Where an age-protected worker is directly replaced by a person not significantly younger, there may be no basis to suspect a motive of prohibited bias.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 366.)

In the SAC, Plaintiff alleges that “Defendants replaced her with a younger white male.” (SAC, ¶ 35.) Plaintiff has not alleged that “jobs [were] eliminated and duties reallocated during a general work force reduction” – Plaintiff only alleges that her replacement was younger. (See Guz v. Bechtel at p. 366.)

Defendant has established the following as undisputed material facts.

• “At the time of termination, Plaintiff was 53 years old and was born in 1969. (Plaintiff’s Depo, Vol. I, 15:9-10, Ex. “1”.)” (ROA 164, UF No. 79.)

• “Following Plaintiff’s termination, Le appointed Stephen Drinovsky (“Drinovsky “) to serve as the Interim Public Works Director. Drinovsky was 66 years old at the time. Drinovsky served in that capacity from May to September 2023, under 4 months. (Le Decl., Ex. “B” ¶ 15; Declaration of Tania Knauerhaze (“Knauerhaze Decl.”), as Ex. “C” ¶ 3.)” (ROA 164, UF No. 80.)

• “In September 2023, Le appointed Scott Smith (“Smith”) to the position of Public Works Director, and he currently holds that position. Smith is one year younger than Plaintiff. Plaintiff testified that she knows Le hired Smith as the Director and knows his age and felt he is qualified. (Le Decl. “Ex. “B” ¶ 15; Knauerhaze Decl., Ex. “C” ¶ 3; Plaintiff’s Depo, Vol. II, 407:12-408:10, Ex. “2”.)” (ROA 164, UF No. 81.)

Plaintiff does not dispute these facts. Rather, Plaintiff argues they are not dispositive of Plaintiff’s age discrimination claim.

The case law cited above establishes, however, the undisputed material facts are fatal to Plaintiff’s age discrimination claim. The Motion is GRANTED as to the second cause of action for age discrimination.

IV. Third Cause of Action: Gender Discrimination

In order to establish a prima facie case for gender discrimination, “the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355; Dinslage v. City & Cty. of San Francisco (2016) 5 Cal.App.5th 368, 378.)

Here, Defendant argues that (1) Plaintiff cannot establish that gender discrimination was a discriminating motive in Plaintiff’s termination and (2) Plaintiff’s termination was based on legitimate nondiscriminatory factors. The Court agrees that the undisputed facts establish Defendant did not have a discriminatory motive on the basis of gender when it terminated Plaintiff.

First, Plaintiff does not dispute that “neither Le, the Human Resources Director – Carrie Hanes – nor City Councilmember Ted Bui made any inappropriate comments about Plaintiff’s gender.” Thus, there is no direct evidence that Plaintiff was subject to gender discrimination that resulted in her termination.

Plaintiff attempts to present circumstantial evidence of discriminatory motive but such evidence falls short. (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 687 [“circumstantial evidence of disparate treatment ‘may by itself support a claim for discrimination’”]; Gupta v. Trustees of California State University (2019) 40 Cal.App.5th 510, 519 [“Plaintiffs in FEHA cases can prove their cases by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence.”].)

Plaintiff argues that Councilman Ted Bui’s question to the male Deputy Director Temo Galvez asking why he wasn’t the Public Works Director instead of Plaintiff, Councilman Ted Bui’s comment to the Chief that Plaintiff was not qualified as well as “Lee’s status as the first female Director, the male deputy comparison and the City’s disparate failure to discipline him for the same ‘last straw’ conduct, and the City’s shifting explanations” all establish discriminatory motive. The Court, however, is not persuaded.

The Court finds that the two comments by Bui are insufficient to establish discriminatory motive, especially when considering Plaintiff’s concession that “neither Le, the Human Resources Director – Carrie Hanes – nor City Councilmember Ted Bui made any inappropriate comments about Plaintiff’s gender.” There is also no evidence that Ted Bui had any influence over the City’s decision to terminate Plaintiff and there must be a connection between the gender biased remarks and Plaintiff’s termination.

Rather, the evidence before the Court suggests that the decision to terminate Plaintiff was made following the collaboration of Le, the City attorney, and the HR Department. Again, “section 12940(a) does not purport to outlaw discriminatory thoughts, beliefs, or stray remarks that are unconnected to employment decisionmaking. Racist, sexist, or other biased comments in the workplace may give rise to a claim for unlawful harassment under a separate provision of the FEHA. [Citations.] But such comments alone do not support a claim under section 12940(a), nor do bigoted thoughts or beliefs by themselves.

Were it otherwise, the causation requirement in section 12940(a) would be eviscerated. Section 12940(a) does not prohibit discrimination ‘in the air.’ It prohibits discrimination that causes an employer ‘to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’” (Harris v.

City of Santa Monica (2013) 56 Cal.4th 203, 231, citing § 12940, subd. (j).)

Next, the Court is also not persuaded by Plaintiff’s male deputy director comparison argument. “Comparative evidence is evidence that [the plaintiff] was treated differently from others who were similarly situated but are outside the plaintiff's protected class. [Citations.] Evidence that an employer treated ‘similarly situated’ employees outside the plaintiff's protected class ‘more favorably’ is probative of the employer's discriminatory or retaliatory intent. [¶] To be probative, comparative data ... must be directed at showing disparate treatment between employees who are ‘similarly situated’ to the plaintiff in all relevant respects. [Citations.] In general, individuals are similarly situated when they have similar jobs and display similar conduct.” (Gupta v. Trustees of California State University (2019) 40 Cal.App.5th 510, 519-520.)

Here, the Court finds that Plaintiff is not similarly situated to the male deputy director referenced in her opposition. First, Plaintiff is the male deputy director’s superior, which already establishes that they are not similarly situated individuals. Plaintiff presents no evidence that the male deputy director had the same job responsibilities as Plaintiff or other facts that would suggest that they are similarly situated in their job responsibilities. Second, Plaintiff does not contend, and the personnel records before the Court do not establish, that Plaintiff was fired for working outside employment despite Le’s denial of her outside employment request.

Plaintiff argues that the male deputy director received favorable treatment because he worked outside employment over Le’s denial but there is not evidence before the Court that Plaintiff displayed similar conduct and was terminated as a result. For these reasons, the court is not persuaded by Plaintiff’s male deputy director comparison.

Moreover, Le’s deposition testimony establishes the “last straw comment” was directed towards Plaintiff’s behavior – not the male deputy director. The “last straw comment” was in reference to Plaintiff’s failure to enforce the “no outside employment policy” as the deputy director’s supervisor.

The only additional circumstantial evidence Plaintiff provides is her statement that she was the first female hired as director. The fact standing alone is insufficient to establish a discriminatory motive in firing Plaintiff.

The Motion is GRANTED as to the third cause of action for gender discrimination.