Kristin Gordon vs. Mendocino Area Parks Association, a California non-profit corporation

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

34-2022-00322703-CU-OE-GDS: Kristin Gordon vs. Mendocino Area Parks Association, a California non-profit corporation 12/15/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 25

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Defendant California Department of Parks & Recreation’s motion for summary judgment, or in the alternative, motion for summary adjudication is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 138 Undisputed Material Facts, and/or which written objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence already in the record which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant’s unopposed request for judicial notice is granted for the limited purposes permitted for judicial notice. (See, Evid. Code §451, subd. (a); §452, sub. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

In this employment action, Plaintiff Kristin Gordon alleges that she was employed by Defendant from April 2014 until January 2019 and employed by non-moving Defendant Mendocino Area Parks Association (“MAPA”) from January 2019 until May 5, 2020. Plaintiff began her employment with Defendant in April 2014 as a Seasonal Park Aide. Defendant promoted her to Seasonal Interpretative Specialist in March 2015. Plaintiff ‘s duties included public education and training, managing volunteer groups and leading guided walks through state parks. Seasonal interpreters with DPR are not permanent civil service employees. Seasonal interpreters are part time at will employees who are allowed to work up to 1500 hours per year, or 9 months of the year. (UMF 10, 11)

Plaintiff alleges that she was offered a promotion based on her performance in March 2018 by her supervisor Bill Maslach. Plaintiff was diagnosed with cancer in April 2018. Plaintiff alleges that when she returned to work from medical leave in July 2018, she was separated from her team and her offer of promotion was revoked. Plaintiff alleges that for the remainder of 2018 her responsibilities were removed, she was demoted and her hours were reduced. Plaintiff asserts that her supervisor Maslach was biased

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against older women and utilized Plaintiff’s medical leave for cancer treatment as a means to effectuate Plaintiff’s termination from her position with Defendant. Plaintiff alleges that she was constructively discharged from her employment with Defendant. Plaintiff alleges that she began working for MAPA, a nonprofit corporation providing education and large scale project administration pursuant to contracts with Defendant, in January 2019. Plaintiff alleges that Maslach continued to interfere with her work at MAPA.

Since filing the complaint, Plaintiff has dismissed MAPA and also dismissed her causes of action for whistleblower retaliation, failure to prevent harassment by a non-employee and failure to prevent harassment or discrimination. The only remaining causes of action are the second, third and fifth causes of action against Defendant for discrimination, harassment, and retaliation in violation of FEHA. Plaintiff alleges that she was discriminated against and harassed on the basis of gender, age, medical condition, disability and “family care/medical leave.” As seen from the opposition, Plaintiff concedes that she is no longer pursuing any claim based on disability or “family care/medical leave.”

Defendant move for summary judgment, or in the alternative summary adjudication on the basis that Plaintiff’s FEHA based causes of action for discrimination and harassment fail because she did not exhaust her administrative remedies, and on the basis that it did not subject Plaintiff to any actionable adverse action.

Standards for Summary Judgment/Adjudication

In ruling on a motion for summary judgment/adjudication, the Court engages in a threestep process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment/adjudication (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382). The evidence submitted in support of or in opposition to the motion must address the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment/adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. A defendant moving for summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25

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Cal.4th 826, 850; Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) This burden may be met by establishing either that one or more elements of a cause of action, even if not separately pleaded, cannot be established or that there is a complete defense to the cause of action.” (Code Civ. Proc. §437c(p)(2).) A defendant cannot successfully shift the burden to a plaintiff by merely suggesting the possibility that the latter cannot prove his/her case but must make “an affirmative showing” in support of its motion. (Addy v.

Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) If a plaintiff pleads several theories of liability against the defendant, then the latter has the burden of demonstrating there are no material facts requiring trial on any of them. A moving defendant whose evidence omits facts as to any theory of liability effectively permits that portion of the complaint to be unchallenged and even where no opposition is presented, a moving defendant must still make a showing sufficient to eliminate all triable issues of fact. (Wright v.

Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228; see also, Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397.)

A plaintiff opposing summary judgment/adjudication has no evidentiary burden unless the moving defendant has first met its initial burden. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.) If a moving defendant has met its initial burden, the burden then shifts to the opposing party to show the existence of a material factual issue as to the cause of action alleged or the defense to it. (Code Civ.

Proc. §437c(p)(2); see also, Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) Only where the moving defendant makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Id.)

In ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is cited above: CRC Rule 3.1350(b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or

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question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for [punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty. (Underline added for emphasis.)

Finally, in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, the Court of Appeal explained that a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

Guided by these principles, the Court will now consider the merits of the present motion and the specific contentions advanced therein.

Discussion

Second and Third Causes of Action (Issues 1-3 and 5-7)

In her second and third causes of action for discrimination and harassment in violation of FEHA, Plaintiff alleges that she was discriminated against and harassed on the basis of her medical condition, age, gender, disability or “family care/medical leave.”

“[U]nder subdivision (f) of section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action.” (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1845-1855. Under FEHA, each protected characteristic gives rise to a distinct primary right and thus a single cause of action. (Skirbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364-1365.) Pursuant to this authority, Defendant moves for summary adjudication of Plaintiff’s second and third causes of action for discrimination and harassment on the basis that Plaintiff failed to exhaust her administrative remedies with respect to any claim premised on medical condition, age, gender, disability or “family care/medical leave.”

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Defendant contends that administrative complaint that Plaintiff filed with the Department of Fair Employment and Housing (“DFEH”) in 2021 only mentioned retaliation and did not mention any claims for discrimination or harassment.

“Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [Department] and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Medix Ambulance Serv. v. Superior Court (2002) 97 Cal.App.4th 109, 116.) “It is the plaintiff’s burden to plead and prove the timely filing of the DFEH complaint.” (Jumaane v.

City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) In the FEHA context, the failure to exhaust an administrative remedy is a jurisdictional defect. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) It is “plaintiff’s burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336,1345.)

Government Code section 12960(b) requires that a claimant must “set forth the particulars” of the unlawful conduct that is the basis of the employee's grievance. (Gov. Code, § 12960(b); 2 Cal.C. Regs §10007, Martin v Lockheed Missles & Space Co. (1994) 29 Cal.4th 1718, 1724. Any civil action for violation of FEHA is limited to matters like or related to the DFEH complaint: Essentially, if an investigation of what was charged would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent civil action. (Okoli v Lockheed Technical Operations Co (1995) 36 Cal.App.4th 1607, 1615.)

What is submitted to the DFEH is to be liberally construed in favor of plaintiff and must also be construed in light of what might be uncovered by a reasonable investigation. (Nazir v United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.) Claims in a civil complaint can proceed where there are fairly reflected in the administrative charge. (Jones v. Los Angeles Community College District (1988) 198 Cal.App.3d 794, 810.) For example, a plaintiff that failed to check the “national origin” box on a DFEH complaint was not precluded from pursuing such a discrimination claim in a civil action because the DFEH’s investigation of a race discrimination claim set forth in the DFEH charge would likely have encompassed both race and national origin. (Sandhu v.

Lockheed Missile & Space Co. (1994) 26 Cal.App.4th 846; see also Baker v. Children’s Hospital Medical Ctr. (1989) 209 Cal.App.3d 1057 [plaintiff allowed to pursue harassment/retaliation claims as they were reasonably related to the race discrimination claim in the DFEH charge].)

Here, the Court finds that Defendant failed to meet its initial burden to demonstrate that it is entitled to judgment as a matter of law on the basis that Plaintiff failed to exhaust

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her administrative remedies with respect to any discrimination and harassment claim premised on medical condition, age, gender. To that end, Defendant points to the verified complaint Plaintiff filed with the DEFH on April 2, 2021. (RJN Exh. III.) That complaint names Defendant as the respondent. (Id.) It alleges that Plaintiff experienced retaliation. However, it also alleges that Plaintiff believes she was retaliated against because she resisted discrimination or harassment. Plaintiff alleges that she “reported a discrimination complaint” in May 2019 based on ongoing discrimination “due to my medical condition.” (Id.)

While Plaintiff states that she believed her July 13, 2020 request to volunteer was denied due to her filing a discrimination complaint regarding her medical condition, she also alleges that she believes she was “denied opportunities in retaliation for reporting discrimination.” (Id.) Notably, Defendant’s own evidence includes Plaintiff’s May 2019 “formal discrimination complaint filed” with Defendant in which Plaintiff indicates she was subjected to discrimination and harassment on the basis of sex/gender, age, disability/medical condition. (Def.’s Exh. 16) That internal complaint refers to a hostile work environment and discrimination while William Maslach was Plaintiff’s supervisor, including opportunities being provided to and favoritism being shown to “the only male on the team ”. (Id. at COE 0179)

As set forth above, a plaintiff is permitted to pursue claims that are not only fairly reflected in any administrative charge filed with the DFEH, but also any claims that might reasonably be discovered in an investigation of the complaint filed with the DFEH. Here, Defendant’s evidence, Plaintiff’s April 2, 2021 administrative complaint filed with the DFEH, while not specifically stating that she was subjected to discrimination or harassment on the basis of medical condition, age, gender, does refer to reporting discrimination based on Plaintiff’s medical condition.

It also refers to the May 2019 discrimination complaint Plaintiff filed with Defendant. That complaint refers to discrimination and harassment based on sex/gender, age, and disability/medical condition. These are the very claims now presented in the Complaint in this action. Thus, the Court finds that Defendant has failed to demonstrate as a matter of law that these claims were either not fairly reflected in the April 2, 2021 administrative complaint, or would not have been uncovered in a reasonable investigation such that it could be said that Plaintiff failed to exhaust her administrative remedies as a matter of law with respect to her causes of action for discrimination and harassment premised on medical condition, age or gender.

As a result, the burden never shifted to Plaintiff to demonstrate the existence of a triable issue of material fact.

On this basis alone, Defendant’s motion for summary adjudication directed to the second and third causes of action for discrimination and harassment on the basis that Plaintiff failed to exhaust her administrative remedies as to any claim premised on medical condition, age or gender is denied.

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As noted above, Plaintiff concedes that she did not exhaust her administrative remedies with respect to any discrimination or harassment premised on disability or “family care/medical leave.” Thus, the motion is granted as to the discrimination and harassment claims based on those protected characteristics only (issues 3 and 7).

Given the above, the Court need not address Defendant’s contention that Plaintiff’s 2020 administrative complaint filed with the DFEH against MAPA did not exhaust administrative remedies as to Defendant.

Statute of Limitations/End of Plaintiff’s Employment

The Court notes that in Defendant’s memorandum of points and authorities, Defendant argues that Plaintiff was not an employee after December 31, 2018, and thus was required to file an administrative complaint with the DFEH no later than December 31, 2019 pursuant to the statute of limitations set forth in Government Code § 12960. Defendant also argues that Plaintiff could not bring any claims against it for any conduct occurring after December 31, 2018, when Plaintiff’s employment ended. However, Defendant did not identify these grounds in the notice of motion as a basis for summary judgment or summary adjudication.

Indeed, the notice of motion identifies nine issues, none of which identify the statute of limitations, or the end of Plaintiff’s employment as a basis for the motion. However, even if these issues could be said to be encompassed with the administrative exhaustion issue identified in the notice of motion, the motion of such grounds would be denied.

Prior to 2020, an employee was required to file an administrative complaint within one year from the date on which an alleged unlawful employment practice occurred. However, effective January 1, 2020, the Legislature amended Government Code § 12960 to provide that an administrative complaint must be filed within three years of the unlawful employment practice. (Gov. Code § 12960.) “This subdivision is not intended to revive claims that have already lapsed.” (Id. § 12960(f)(3).)

First, the Court finds that Defendant failed to meet its initial burden to demonstrate that it is entitled to judgment as a matter of law with respect to Plaintiff’s second cause of action on the basis that Plaintiff failed to file an administrative claim with the DFEH by December 31, 2019. Even assuming that Defendant were correct that its evidence showed that Plaintiff’s employment ended on December 31, 2018, Defendant is incorrect that Plaintiff was thereafter precluded from bringing any claims against it with respect to events that occurred after December 31, 2018. This is true because Government Code § 12960(a) specifically permits a person to bring claims for discrimination, harassment, or retaliation even if they are not an employee. Specifically, discrimination, harassment and retaliation against an “applicant” for employment is

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prohibited under FEHA. (Gov. Code § 12940(a), (h), (j).) Defendant’s own evidence confirms that Plaintiff requested to return to Defendant after her employment with MAPA ended in May 2020. (UMF 132, 133) Further, Plaintiff alleges that Defendant refused her request to return to her job or, at minimum, as a volunteer, after her employment with MAPA ended. (Comp. ¶ 42; Gordan Decl. ¶ 31.) Thus, even if Plaintiff’s employment with Defendant ended on December 31, 2018, she was not precluded from raising claims under FEHA predicated on conduct (e.g. refusing a request to return) that post-dated December 31, 2018.

Moreover, Plaintiff would not have been required to file an administrative charge within one year of December 31, 2018, for such claims. Therefore, even if properly noticed, the Court finds that Defendant has failed to demonstrate as a matter of law that Plaintiff’s discrimination claims are either untimely because an administrative complaint was not filed within one year of December 31, 2018 or that Plaintiff cannot assert claims based on anything that occurred after December 31, 2018. As a result, the burden never shifted to Plaintiff to demonstrate the existence of a triable issue of material fact.

In any event, even assuming for purposes of argument that Defendant met its initial burden on this issue, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. To that end, Defendant’s argument hinges on its assertion in UMF 7 that Plaintiff’s employment ended on December 31, 2018. However, Plaintiff presents evidence that her employment extended into January 2019. She declares that on January 1, 2019, she led a hike pursuant to the instructions from Maslach, her supervisor. (Gordon Decl. ¶ 20, Exh.

I.) She also presents a “Report of Separation” form the State Personnel Services Division indicating that her effective date of separation was January 11, 2019. (Gordon Decl. Exh. C.) This evidence directly disputes Defendant’s UMF 7 and therefore creates a disputed issue of material fact. Thus, any motion premised on the contention that Plaintiff’s discrimination claims are either untimely because an administrative complaint was not filed within one year of December 31, 2018 or that Plaintiff cannot assert claims based on anything that occurred after December 31, 2018 must be denied for this additional reason.

Second and Fifth Causes of Action (Issues 4 and 9)

Defendant next contends that Plaintiff’s discrimination and retaliation causes of action fail because Plaintiff was not subjected to any adverse employment action based on any discriminatory or retaliatory motive.

The California Supreme Court has held that to establish an action for discrimination in violation of FEHA, Plaintiff must show (1) is a member of a protected class, (2) competently held her position, (3) suffered an adverse employment action, and (4) some circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc.

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(2000) 24 Cal.4th 317, 355; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1220.)

To establish a prima facie case of unlawful retaliation in violation of FEHA, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer thereafter subjected her to an adverse employment action; and (3) there was a causal relationship between the two. (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 245.)

The burden of showing a prima facie claim in a FEHA action is not “onerous” and the evidence necessary to meet the burden is “minimal.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 149.)

A “burden-shifting” analysis applies in evaluating claims for discrimination and retaliation in employment. (Guz, supra, 24 Cal.4th at 354; Dudley v. Dept. of Transp. (2001) 90 Cal.App.4th 255, 261; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042) Under the three-part test developed in McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792: '(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” (Morgan v. Regents of University of California (2001) 88 Cal. App. 4th 52, 68.)

“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 v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 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, at 861.)

To that end, where the employer meets its burden to show that it had legitimate, nondiscriminatory reasons for the adverse employment action, the employee has the burden to show pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) The employee is required to produce “substantial responsive evidence that the employer’s showing was untrue or pretextual”

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thereby raising at least an inference of discrimination.” (Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “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.” (Id. at 1002.) The employee must “set forth specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons that a reasonable factfinder could rationally find them unworthy of credence.” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)

An adverse employment action is a “substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380 (quoting Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454).) “For the purpose of applying the statute, an adverse employment action is not limited to ‘ultimate’ employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for career advancement.” (Jones, supra, 152 Cal.App.4th at 1380.) “A series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse.” (Id. at 1381.)

In this portion of the motion, Defendant discusses six employment actions and does not differentiate between the discrimination or retaliation causes of action. (Mot. 20:2-25:2.) Specifically, Defendant argues that Plaintiff was not promoted or demoted during her employment, that she was not constructively terminated, that she was not denied training opportunities, that her non-selection for MAPA’s house manager position is not an adverse action, that allegations of “minor” workplace conduct is not adverse employment action, and that Defendant was not involved in Plaintiff’s termination from MAPA.

Defendant appears to argue that some of the employment actions either did not constitute adverse actions, or that Defendant had legitimate non-discriminatory/nonretaliatory reasons for its conduct. If Defendant fails to meet its initial burden as to all six of the employment actions or if Plaintiff demonstrates a triable issue of material fact with respect to any of the employment actions, Defendant’s motion for summary adjudication as to issues four and nine must be denied.

Here, assuming that Defendant met its burden as to all six of the employment actions, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. As support for Defendant’s motion as to issue 4 Defendant relies on UMFs Nos. 1- 15, 24-105, and 115-123. With respect to issue 9, Defendant relies on UMFs 1-15, 81- 99, and 111-138. As this Court has already found above, Plaintiff has raised a triable

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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issue of material fact with respect to UMF 7 which states that Plaintiff’s employment ended on December 31, 2018. Given that this same UMF is presented in support of the motions directed to issues 4 and 9, the motions must be denied. As noted above, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, supra, 178 Cal.App.4th at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

In Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, the trial court found that although the moving party “enumerated purportedly undisputed material facts in its separate statement, some of which [opposing party] disputed” those facts were not material and granted summary judgment. (Id. at 521.) However, the appellate court reversed, concluding that summary judgment was improper “[b]ecause a dispute as to any one of these facts means there was a dispute as to a concededly material fact.” (Id. at 522.)

While the Court need not proceed any further, there are additional triable issues of material fact which require that the motion be denied. To that end, Defendant argues that Plaintiff was not promoted or demoted during her employment. Defendant contends that Plaintiff remained a temporary seasonal interpreter during her employment and that there was never any option for her to be promoted given that she did not have a college degree, among other reasons. Thus, it argues that Plaintiff’s assertion that she was promoted to a lead interpreter is meritless.

Defendant relies on UMFs 31-34 and 92-98. Plaintiff presents evidence that in March 2018, Maslach announced to staff that Plaintiff would be the lead interpreter. (Gordon Decl. ¶ 8.) Plaintiff declares that District Sector Superintendent Loren Rex told her that she would hold the lead interpreter position at least until Defendant hired a replacement which could take up to two years. (Id. ¶ 9.) Plaintiff declares that between March and May 2018 she spent more than 50% of her time as a lead interpreter and that when she returned from medical leave in July 2018 she spent more than 75% of her time serving as a lead interpreter. (Id. ¶ 10.)

The lead interpreter increased Plaintiff’s pay to $18 per hour. (Id. ¶ 7.) This evidence directly disputes Defendant’s UMFs 31 and 34 which state that the “lead” designation was intended to be temporary, did not change Plaintiff’s pay, and also that the duties associated with the lead position would not take up more than 50% of Plaintiff’s time.

Further, while UMF 93 states that Plaintiff does not have a college degree of any kind, Plaintiff presents evidence that she has a Naturalist Certificate from Santa Rosa Junior College with major work in interpretation, social sciences and natural sciences. (Gordon Decl. ¶ 40.) In addition, Defendant previously determined that Plaintiff met the college requirement when she was promoted to Seasonal Interpretative Specialist in March 2015, as that position required the “[e]quivalent to graduation from college (1) with major work in natural sciences or human history, or (2) with major work in education

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with specialization in natural science or human history.” (Id.; Plf’s Exh. AA.) Plaintiff thus directly disputes UMF 93.

UMF 94 states that the State Park Interpreter I classification is a permanent civil service job requiring graduation from college with major in interpretation, social sciences, natural sciences, communications or a closely related field, plus one year of related experience in research and development of historical or natural resource interpretive programs. UMF 98 states that because Plaintiff does not have a college degree of any kind she could not qualify for the State Interpreter I classification.

However, as noted in the opposition, the actual requirement for the position is “One year of experience in research and development of historical or natural resource interpretive programs and [e]quivalent to graduation from college with major work in interpretation, social sciences, natural sciences, communications, or closely related fields. (Additional qualifying experience may be substituted for up to two years of the required education on a yearfor-year basis.)” (Plf’s Exh. LL.) Again, Plaintiff presents evidence that Defendant had previously found that she met the college requirement, and also presents evidence that Defendant does not always follow requirements when evaluating candidates for the Interpreter I position. (Gordon Decl. ¶ 40.; Plf’s Exh.

AA; Plf’s Exh. MM [Azevedo Decl. ¶ 2]; Plf’s Exh. L [Levesque Depo. 30:5-24].) Thus, Plaintiff has also directly disputed UMFs 93 and 98. These additional disputes require that the motion be denied.

Defendant also contends that Plaintiff was not denied any training opportunities despite her assertion that she was passed over for the opportunity to participate in the Parks Online Resource for Teachers and Students (“PORTS”) program in favor of a male coworker. Defendant relies on UMFs 46-60. UMF 49 states that Maslach selected Plaintiff’s daughter for the training because she was involved in media outreach and UMF 52 states that Maslach sent Steve Jahelka to the training after learning that Plaintiff’s daughter would not attend and because Jahelka requested to attend and was seeking to gain eligibility for promotion.

Plaintiff presents evidence that Maslach told Defendant’s investigator Susan Grove that he did not choose Plaintiff for the training because Plaintiff was leaving and he did not want to invest time in her. (Plf’s Exh. Z [Grove Depo. 28:17-29:21]; Plf’s Exh. JJ.) UMF 55 states that PORTS scouting visits in October 2018 did not involve training and that Plaintiff was not denied the opportunity to attend. Plaintiff presents evidence that Maslach ordered her not to attend the PORTS scouting event and even accused her of insubordination for attending even though she did not attend. (Gordon Decl. ¶¶ 14, 19.)

Plaintiff has directly disputed UMFs 49, 52 and 55, any one of which requires that that the motion be denied.

Defendant also argues that it did not participate in any manner in MAPA’s termination of Plaintiff’s employment. Defendant relies on UMFs 81-91. UMF 81 states that MAPA’s Executive Director Elizabeth Cameron eliminated MAPA’s naturalist position and

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terminated Plaintiff’s employment due to funding reduction resulting from the COVID 19 pandemic. Plaintiff presents evidence that MAPA’s Board Vice President believed that the reasons provided by MAPA to terminate Plaintiff’s employment were false. (Plf’s Exh. P [Stanley Depo. 66:25-67:17].) This disputes UMF 81. Further, UMF 90 states that Levesque gave Plaintiff an iPad to use at MAPA. Plaintiff declares that Levesque did not give her an iPad of any kind thus disputing UMF 90. (Id.) These additional disputes also require that the motion be denied.

In short, given the numerous disputed material facts, the motion for summary adjudication as to issues 4 and 9, on the basis that Defendant did not subject Plaintiff to any adverse action based on any discriminatory or retaliatory motive must be denied.

The Court need not address Defendant’s additional argument that the retaliation cause of action also fails because it had legitimate reasons for declining to return Plaintiff to the workplace. This is true because although this is a separate argument set forth in a separate part of the memorandum of points and authorities, it is still subsumed within issue 9 which is premised on UMFs 1-15, 81-99, and 111-138, as to which the Court found numerous triable issues of material fact.

In addition, the Court need not address Defendant’s argument in reply that Plaintiff cannot claim that it was responsible for her termination from MAPA because her complaint alleged that MAPA’s Director Elizabeth Cameron was responsible.

Third Cause of Action (Issue 8)

Defendant moves for summary adjudication as to Plaintiff’s harassment cause of action on the basis that Plaintiff was not subjected to a hostile work environment.

“To establish a prima facie case of a hostile work environment, [plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

Harassment is shown “‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-264 [citations omitted].) Whether any conduct is sufficiently severe or pervasive “is ordinarily one of fact.” (Id. at 264.) “The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law.

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The adjective ‘severe’ is defined as ‘strongly critical and condemnatory’ or ‘inflicting pain or distress.’ (Webster's Collegiate Dict. (11th ed. 2007) p. 1140, col. 2.) The verb ‘pervade’ is defined as ‘to become diffused throughout every part of.’ (Id. at p. 925, col. 2.).” (Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal. App. 5th 31, 38.) “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v.

San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) Whether the conduct at issue is sufficiently pervasive so as to create a hostile or offensive work environment must be determined from the totality of the circumstances. (Id. at 609.) The analysis is both objective and subjective as the plaintiff must ultimately show 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 [plaintiff] was actually offended.” (Id. at 609-610.) “Whether an employee was subjected to a hostile work environment is ordinarily one of fact.” (Rehmani v.

Superior Court (2012) 204 Cal.App.4th 945, 959 [emphasis added].)

Generally, “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 non-assignment of supervisory functions, deciding who will and will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment” though they may be discriminatory. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.)

However, “some official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709.) “[I]n some cases, the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim.” (Id.)

In arguing that the harassment cause of action fails, Defendant argues that Plaintiff’s complaint only alleges that she was deprived of projector equipment, locked out of necessary workspaces, denied assistance with leading walks through public parks and denied training opportunities. (Comp. ¶¶ 35-36, 38.) Defendant argues that these are only personnel actions which are not actionable. Defendant asserts that Plaintiff also contends that certain email communications were harassing but they were nothing more than ordinary workplace communications.

To the extent that Defendant is challenging the sufficiency of Plaintiff’s pleading, the Court notes that relevant authority indicates that it is “inappropriate and bad motion

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practice for defendants to submit to the court for summary adjudication, matters which essentially test[] the sufficiency of the pleadings.” (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536.)

Nevertheless, the Court finds that Defendant has not met its initial burden to demonstrate that it is entitled to judgment as a matter of law on Plaintiff’s harassment cause of action. “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.” (Government Code § 12923(b); see Bailey v.

San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611.) “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” (Id. § 12923(c).) “Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v.

United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues ‘not determinable on paper.’” (Gov. Code § 12923(e) [emphasis added].) The Court concludes that Defendant has failed to demonstrate that Plaintiff was not subjected to a hostile work environment as a matter of law.

The Court does not find that Plaintiff’s allegations that she was deprived of projector equipment, locked out of necessary workspaces, denied assistance with leading walks through public parks and denied training opportunities, when considering the totality of the circumstances on Plaintiff’s employment with Defendant cannot constitute a hostile work environment as a matter of law. This is especially true given the language set forth in Government Code § 12923(e). On this basis alone, the motion is denied and the burden never shifted to Plaintiff to demonstrate a triable issue of material fact.

In any event, even if Defendant met its initial burden, the motion would still be denied. Defendant’s motion directed to the harassment cause of action is based on UMFs 1-15, 24-80, 100-105, 109 and 110. As stated above, the Court has already found triable issues of material fact with respect to UMFs 7, 31, 34, 49, 52, 55, 81, 88-90, and 93, and 98. Given that each of these UMFs are set forth in support of the harassment cause of action, a dispute as to any one of them requires that the motion be denied.

Conclusion

Defendant’s motion for summary adjudication is granted as to issues 3 and 7 on the basis that Plaintiff did not exhaust her administrative remedies with respect to her

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causes of action for discrimination and harassment based on disability or “family care/medical leave.” The motion for summary adjudication is denied in all other respects.

Having failed to obtain summary adjudication as to all causes of action asserted against it in the complaint, Defendant’s motion for summary judgment must be denied.

With respect to the Parties’ evidentiary objections, the Court notes that Code of Civil Procedure section 437c(q) provides, “[i[n granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” The Court notes that many of the objections refer to material that is not material to the Court’s analysis. To those objections that are material to the Court’s disposition – as reflected by reference to the evidence or UMFs that cite to such evidence – Plaintiff’s evidentiary objections are overruled, and Defendant’s evidentiary objections are overruled.

Defendant shall submit an order for the Court’s signature pursuant to CCP § 437c and CRC 3.1312.