On 06/11/2013 CONSTANCE D ODEN filed an Other lawsuit against CITY OF LONG BEACH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YVETTE M. PALAZUELOS, RUPERT A. BYRDSONG, GREGORY KEOSIAN and DALILA CORRAL LYONS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
YVETTE M. PALAZUELOS
RUPERT A. BYRDSONG
DALILA CORRAL LYONS
ODEN CONSTANCE D.
DOES 1 - 25
LONG BEACH CITY OF
CITY OF LONG BEACH
EDWARDS ANITA GRACE ESQ.
EDWARDS ANITA GRACE
HEDGES LESLIE JAY
JENKINS HALEH R.
MEYERS BARRY M. SENIOR DEPUTY CITY ATTY
MASERO NICHOLAS J
JENKINS HALEH RAHIMZADEH
YASUDA MARSHA M.
4/9/2019: Case Management Order
7/9/2020: Notice Re: Continuance of Hearing and Order
7/13/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 07/13/2020
8/13/2020: Opposition - OPPOSITION EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
8/14/2020: Notice - NOTICE OF ERATTA: ADD MISSING PAGE IN EVIDENCE IN SUPPORT OF OPPOSITION TO MSJ
12/1/2020: Motion to Dismiss
12/29/2020: Request for Judicial Notice
1/11/2021: Motion in Limine - MOTION IN LIMINE NO. TWO
1/11/2021: Motion in Limine - MOTION IN LIMINE NO. THREE
8/8/2018: Minute Order -
3/26/2019: Case Management Statement
9/23/2013: CASE MANAGEMENT STATEMENT -
10/9/2013: STIPULATION FOR FILING AMENDMENT TO COMPLAINT; ORDER
12/24/2014: EFENDANT?S MIMORA[44DUM OF OINTS AND AUTHORITITS IN PPOSITION TO PLAINTIFF?S LOTION FOR LEAVE TO FILE FIRST MENI)KI) COMPLAINT; ECLARATION OF HALEII R. JENKINS
1/14/2015: FIRST AMENDED COMPLAINT FOR DAMAGES 1. DISCRIMINATION (VIOLATION OF GOVERNMENT CODE ?12940(A)); ETC.
2/9/2015: ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER SPECIALLY SETTING THE HEARING DATE ON DEFENDANT?S DEMURRER OR IN THE ALTERNATIVE FOR AN ORDER STAYING DISCOVERY AND CONTINUING THE MSJ HEARI
2/11/2015: Minute Order -
10/15/2015: DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES AND ETC.
Hearing02/22/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Protective OrderRead MoreRead Less
Hearing02/02/2021 at 09:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing01/25/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing01/25/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to DismissRead MoreRead Less
DocketReply (to Plaintiff's Opposition to Motion to Dismiss); Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketMotion in Limine (No. Three); Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketMotion in Limine (No. Two); Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketMotion in Limine (No. One); Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketOpposition (Opposition to Defendant's Motion to Dismiss); Filed by Constance D. Oden (Plaintiff)Read MoreRead Less
DocketObjection (Evidentiary Objections of Plaintiff to Attorney Declaration in Support Motion to Dismiss; Supporting Memorandum; Proposed Order); Filed by Constance D. Oden (Plaintiff)Read MoreRead Less
DocketCase Management Statement; Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Constance D. Oden (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketANSWER TO COMPLAINTRead MoreRead Less
DocketAnswer; Filed by City of Long Beach (Defendant)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Constance D. Oden (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES: 1. DISCRIMINATION (VIOLATION OF GOVERNMENT CODE 12940(A)); ETCRead MoreRead Less
Case Number: BC511450 Hearing Date: January 25, 2021 Dept: 61
Defendant City of Long Beach’s Motion to Dismiss is DENIED.
MOTION TO DISMISS
“An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc. § 583.310.) This computation of time excludes all time during which “[p]rosecution or trial of the action was stayed or enjoined.” (Code Civ. Proc. § 583.340, subd. (b).) If trial is not held within the time allowed, an action may be dismissed by the court on its own motion or on motion of the defendant. (Code Civ. Proc. § 583.360, subd. (a).)
City notes that this action was filed on June 11, 2013, and argues that a stay was not entered in these proceedings until January 23, 2018, more than four and a half years into the case timeline. (Motion at p. 6.) The stay was lifted on September 13, 2018, and the five-year deadline expired by the end of January or early February 2019. (Motion at pp. 6–7.)
Plaintiff in opposition argues that this court in fact stayed proceedings long before the September 13, 2018 order. (Opposition at p. 9.) Plaintiff identifies the date of August 11, 2016, when this court granted City’s ex parte application to continue trial to await the ruling on Plaintiff’s appeal of the denial of her writ petition. (Opposition at pp. 9–10.) The court’s order of that date vacated the trial date and set a status conference on the appeal for August 25, 2016. Plaintiff thus argues that proceedings in this matter were stayed within the meaning of section 583.310 from August 2016 until this court lifted its stay on September 13, 2018. (Opposition at p. 10.) Plaintiff also argues that the matter was stayed for 25 days as the case was reassigned under Code of Civil Procedure § 170.6 from January 31, 2019, to February 25, 2019, and from April 6, 2020 for six months per the emergency pandemic order of the California Supreme Court. (Opposition at p. 12.)
Plaintiff also argues that dismissal is inappropriate because five years have not passed if one considers the time in which “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (Code Civ. Proc. § 583.340, subd. (c).) Plaintiff notes that she sought only one continuance in this case, and that to ask for leave to amend her complaint to account for her termination during the litigation. (Opposition at pp. 13–14.) Conversely, it was impossible and impracticable to bring the case to trial during the period where trial was continuously continued from August 2016 onward.
Any time while the prosecution of an action is stayed is excluded from computation for the purposes of Code of Civil Procedure § 583.310, but the time while trial is “continued” is not excluded. (See Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1092.) “The label the trial court uses is not dispositive of the inquiry. What matters is whether the order is functionally in the nature of a stay, which implicates the legislative purposes behind tolling the five-year period, or whether it is functionally in the nature of a continuance, which does not.” (Ibid., citations omitted.)
“[T]he prosecution of an action is stayed under subdivision (b) only when the stay encompasses all proceedings in the action.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 722, italics in original.) “The long-standing judicial understanding of the term stay in the context of the five-year statute is that it refers to those postponements that freeze a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation and beyond the plaintiff's control.” (Gaines, supra, 62 Cal.4th at p. 1082.)
In applying these rules to the case, the court is mindful of the articulation of state policy enacted in the very statute that City seeks to enforce.
It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.
(Code Civ. Proc., § 583.130.)
The court finds that both of Plaintiff’s arguments have merit. The period from August 11, 2016, to September 13, 2018, is properly considered a “stay” of trial of this action, as well as a period in which bringing the action to trial was impracticable.
The case of Holland v. Dave Altman’s R.V. Center (1990) 222 Cal.App.3d 477, is apt. There, a defendant brought a motion entitled, “Ex Parte Motion for Continuance of Defendant's Motion for Summary Judgment, Trial Date, Mandatory Settlement Conference, and Demand for Designation of Expert Witnesses,” reasoning that these matters should be continued while a pertinent appeal was pending. (Id. at p. 481.) The court granted the motion, stating that the named dates would be “continued until the pending appeal has been decided.” (Ibid.) When defendant argued that the trial court had merely continued matters rather than stayed them, the court of appeal held otherwise, noting that the word “stay” possesses “a commonly understood meaning as an indefinite postponement of an act or the operation of some consequence, pending the occurrence of a designated event.” (Id. at p. 482.) Despite the lack of the word “stay” in the trial court’s order, the continuance of the matters identified pending an indefinite future event properly constituted a stay within the definition. (Ibid.)
The present case is on all fours with Holland. City sought an order to “continue trial” on August 11, 2016, asking that trial “be continued 6 months so that the ruling from the Court of Appeal can be received and the Defendants can properly prepare a Motion for Summary Judgment and/or Summary Adjudication.” (8/11/2016 Motion.) City reasoned that the ruling on the appeal could narrow the scope of issues in the present case by operation of collateral estoppel. (8/11/2016 Motion at p. 6.) This court granted the order, but rather than “continue” the case, ordered the current trial date vacated, and set a trial setting conference for two weeks later. (See 8/11/2016 Order.) The record is thereafter devoid of proceedings in this case except for status conferences held to inquire on the status of the appeal, until the court re-set a date for trial on September 13, 2018. The court’s order of August 11, 2016, was thus “an indefinite postponement of an act or the operation of some consequence, pending the occurrence of a designated event.” (Holland, supra, 222 Cal.App.3d at p. 482.) It was a stay of “trial of the action” within the meaning of Code of Civil Procedure § 583.340, subd. (b).
City argues that the August 11, 2016 order could not have effected a stay because a stay under section 583.340 must encompass “all proceedings in the action.” (Reply at p. 2, citing Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 722.) But this argument addresses only one of the two potential grounds for relief under Code of Civil Procedure § 583.340 — that for stays of “prosecution” of the action, rather than stays of trial. The statute provides that time is excluded from the five-year clock when “[p]rosecution or trial of the action was stayed or enjoined.” (Code Civ. Proc. § 583.340, subd. (b), italics added.) Given the use of the disjunctive in the statutory text, courts have addressed requests for relief under this subdivision as fitting within one of the two categories described. (See Gaines, supra, 62 Cal.4th at p. 1091–1094 [holding that plaintiff had shown neither a stay of trial nor a stay or prosecution under this section].) And given the facts above, Plaintiff has shown the existence of a stay of trial beginning on August 11, 2016.
Plaintiff has also shown that trial was impracticable during this time, warranting relief under Code of Civil Procedure § 584.340, subd. (c). “[A] condition of impossibility, impracticability, or futility need not take the plaintiff beyond the five-year deadline to be excluded; it will be excluded even if the plaintiff has a reasonable time remaining after the period to bring the case to trial.” (Gaines, supra, 62 Cal.4th at p. 1101.) Such a condition cannot be “delay caused by ordinary incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar.” (Id. at p. 1101.) Likewise, “when the delay involves the time necessary for the parties to conduct ordinary incidents of proceedings leading up to the trial, the interference must deprive the plaintiff of a “ ‘substantial portion’ of the five-year period for prosecuting the lawsuit” in order to qualify as a circumstance of impracticability.” (Id. at p. 1102.) Whether a plaintiff faced this sort of condition is a matter for trial court discretion. (Id. at p. 1100.)
Once more Holland is apposite. There, facing the procedural facts described above, which involved an indefinite stay of trial pending the resolution of an appeal, the court held that trial was impracticable for the duration of the stay. (Holland, supra, 222 Cal.App.3d at p. 483.) The court held that plaintiff had acted with reasonable diligence during this time, as the alternatives to the stay were (1) the abandonment of the appeal, which Plaintiff was not required to undertake, (2) the dismissal or severance of the defendant to whom the appeal pertained, which ran the risk of “duplicative proceedings” and inconsistent rulings in the severed proceedings. (Id. at p. 483.) The same analysis is applicable here: Plaintiff was not required to abandon her appeal to proceed in the present action. Indeed, the City acknowledged, in the very motion that precipitated the stay at issue, that to prosecute the action notwithstanding the ongoing appeal risked the undue burden of duplicative proceedings and inconsistent rulings. (See 8/11/2016 Motion.) The ensuing delay, lasting from August 11, 2016, to January 23, 2018, was not caused by the ordinary incidents of proceedings or the negligence of Plaintiff, and constituted a “substantial portion” of the statutory five-year period. (Gaines, supra, 62 Cal.4th at p. 1102.)
With this analysis in mind, the math works out as follows. Applying the straightforward five-year clock, the time to bring the case to trial would have expired on June 11, 2018, five years after the Complaint was filed on June 11, 2013. According to the analysis above, the period is extended by the 763 days between August 11, 2016, and September 13, 2018, from when the trial date was vacated owing to Plaintiff’s appeal to when it was reinstated. Thus the five-year deadline was extended to July 13, 2020.
This is not the only addition to the term. Plaintiff claims without objection 25 days between City’s filing of a peremptory challenge on January 31, 2019, and the case’s reassignment on February 25, 2019. (Opposition at p. 11.) “We have held that delay attributable to trial court reassignment following a party's exercise of a section 170.6 peremptory challenge should be excluded [from the five year term].” (Gaines, supra, 62 Cal.4th at p. 1104.) Thus an additional 25 days are properly added to the five-year period, extending the trial deadline to August 7, 2020.
Two additional acts add more time to the clock: the California Judicial Council’s Emergency Rule, adopted April 6, 2020, extending the time to bring a case to trial under Code of Civil Procedure § 583.310 by six months (RJN Exh. 27), and the administrative order of the Presiding Judge of Los Angeles County Superior Court, ordering civil trials suspended from March 19, 2020, made effective until January 1, 2021. (RJN Exhs. 26, 29.) The judicial council’s addition of six months to the standard five-year deadline extends the deadline from August 7, 2020, to February 7, 2021. And the suspension of all civil trials from March 19 to December 31, 2020, of course rendered trial impracticable for an additional 287 days, extending the deadline further to November 21, 2021. Trial is currently scheduled to commence on February 2, 2021.
Accordingly, the five-year statute has not run, and the motion to dismiss is DENIED.
Case Number: BC511450 Hearing Date: August 27, 2020 Dept: 61
Defendant City of Long Beach’s Motion for Summary Judgment or Adjudication is ruled upon as follows:
GRANTED as to the first cause of action for all discrimination claims arising from conduct preceding June 13, 2011, and to failure to promote claim arising from the denied 2013 application. The motion is DENIED as to Oden’s failure to promote claims arising from her denied 2012 application, the failure to appoint her to the interim position in that year, and her Orizaba-to-Miracle reassignment in 2012.
GRANTED as to the second cause of action for retaliation claims arising from the failure to promote Oden in 2013; DENIED as to the Orizaba-to-Miracle reassignment that occurred in 2012.
GRANTED as to Oden’s CFRA retaliation cause of action arising from the denial of the 2013 promotion, and otherwise DENIED.
Plaintiff to give notice.
The City in reply offers many objections to the evidence submitted in opposition to its motion. The court SUSTAINS the following objections to testimony by the declarants concerning what they believe to be the retaliatory motives for adverse employment actions that they or other employees received: Objections No. 13, 17, 24, 29, 30, 36, 40, 50, 53, 62, and 64–66. The court notes that it will not consider conclusory averments of motivation or bias as evidence, but will consider testimony to facts observed by the declarants that indicate the existence of bias. The court also SUSTAINS Objections No. 47 and 55 to the Thomas declaration because of the absence of personal knowledge and foundation concerning municipal budget cuts and the set-up of an exhibit, and also SUSTAINS Objection No. 59, which is hearsay concerning what someone else told Thomas about what he believed to be a racially tinged flyer.
But Objections No. 1–12, 14–23, 25–28, 31–35, 37–39, 41–46, 48, 49, 51, 52, 54, 56–58, 60, 61, 63, and 67–72 are OVERRULED. Statements made by City officials involved in hiring decisions concerning those decisions are admissible as statements of the City itself. (Evid. Code §§ 1220, 1222.) Likewise, the witnesses provide adequate basis for their conclusions that Oden was more qualified for the Recreation Superintendent position than the other applicants. Moreover, statements by Sonny Seng to other city employees concerning the reasons for his takeover of Orizaba Park, particularly his lack of knowledge of why the transition was taking place, are once more party admissions as to Oden herself, and are otherwise admissible statements concerning his state of mind. (Evid. Code § 1250.)
MOTION FOR SUMMARY JUDGMENT
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
City argues that all discrimination claims based on actions occurring before June 13, 2011, are time barred, because Oden filed her DFEH charge on June 13, 2012, and the limitations period for FEHA claims is one year. (Motion at p. 15; Gov. Code § 12960, subd. (d).) Oden responds that the City’s failure to promote her to the same position at various instances from 1996 onward constitute a continuing violation for which the statute of limitations has not yet run. (Opposition at pp. 12–13.)
“[W]hen the defendant has asserted the statute of limitation defense, the plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) “The continuing violation doctrine requires proof that the conduct occurring outside the limitations period was (1) similar or related to the conduct that occurred within the limitations period; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent.” (Ibid.)
Oden argues that her discrimination claims properly encompass even conduct that occurred before June 2011 because they are all connected to events that occurred within the limitations period. (Opposition at pp. 12–13.)
The pattern of incidents that Oden identifies are as follows: a denial of a promotion to Recreation Superintendent (RS) in 2004, which was given to an African-American woman. (Oden Decl. ¶ 9A.) Oden did not apply for another promotion in 2006 to an RS position because she was informed that it would be filled by Gladys Kaiser, a white woman. (Oden Decl. ¶ 9B.) She applied for the RS position once more in 2007, but the three candidates selected to the open positions were white or Hispanic men. (Oden Decl. ¶ 9C.) In 2011, Oden applied for and was offered an RS position, along with one other person (Michelle Gingras), but Gingras was later permitted to “shadow” Kaiser at department events. (Oden Decl. ¶ 11.) Oden also claims that she was not permitted to attend a CPRS conference in March 2011. (Oden Decl. ¶ 11A.) Then followed the rejected promotion applications that occurred in January and March 2012, as well as June 2013, which form the basis for the present motion.
The court concludes that Oden has not met her burden to show the existence of triable issues of fact as to the applicability of the continuing violations doctrine to alleged discriminatory acts that occurred before June 13, 2011. It is true that much of the conduct that Oden identifies was “similar” to conduct that occurred within the limitations period, as much of the conduct concerned City’s failure to promote Oden to the RS position. But there is little to connect these instances beyond their commonality of subject matter, particularly given the importance that Oden places on the bias of one particular decision-maker — Kaiser — who was only promoted to the RS position herself in 2006. (Oden Decl. ¶ 9B.)
Additionally, the alleged incidents of discrimination are not of continuous frequency. Oden was denied a promotion in 2007, and the next promotion incident — the elimination of an applied-for position — occurred some years later in 2011. (Oden Decl. ¶¶ 9C, 10.)
Finally, the permanence factor weighs significantly against the existence of a continuing violation. The gravamen of Oden’s Complaint is City’s repeated failure to promote Oden in a series of repeat decisions. Although discrimination claims and failure to promote claims may be subject to the continuing violation doctrine under FEHA, failures to promote are generally considered “ultimate” employment acts, independently actionable adverse employment actions that may of themselves support a claim for discrimination. (See Jones v. Dept. of Corrections & Rehabilitations (2007) 152 Cal.App.4th 1367, 1380.) Oden’s case is not that of a series of component acts which only coalesced into an actionable whole within the limitations period, but of separate, discrete denials of her applications for promotion. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1058.)
Accordingly, the court agrees with City that any claims based on City actions occurring before June 13, 2011, are time-barred.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
City argues that Oden cannot seek relief based on certain allegations because they were not included in her June 13, 2012 DFEH charge. (Motion at p. 14.) Specifically, City argues that Oden cannot seek relief based on the contention that she was denied medical leave after June 11, 2012, or the contention that she was denied promotion to two open Recreation Superintendent positions in 2013. (Motion at p. 14.)
Exhaustion of administrative remedies through the filing of a charge with the DFEH is a jurisdictional prerequisite to seeking FEHA relief in court. (See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) To determine whether a particular DFEH charge reasonably encompasses the conduct alleged in a later-filed complaint, courts ask whether the subject matter of the complaint would have been within the reasonable scope of a DFEH investigation of the charge. (Id. at p. 1611.)
The fact that a complaint alleges conduct occurring after the charge was filed is not dispositive. In the analogous context of EEOC charges for claims under Title VII of the Civil Rights Act, courts have held that complaints alleging conduct post-dating the filing or resolution of an EEOC charge may be encompassed within the charge itself if the conduct alleged was “like or reasonably related to” the conduct described in the charge. (Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1456–57.)
Here, City’s alleged denial of Oden’s medical leave after June 2012, and her denied promotion applications in 2013, are “like or reasonably related to” the allegations contained in Oden’s DFEH charge. Contrary to City’s argument, the DFEH charge in fact alleges that City “denied [Oden] protected leave” under CFRA. (Sherriel Murry Decl. Exh. 29.) Additionally, the complaint’s allegations that City failed to promote Oden once more in 2013 are reasonably related to the failure-to-promote allegations in the DFEH charges, as the promotions concerned the same position within the same organization, and a reasonable DFEH investigation would have included Oden’s subsequent attempts to secure the same position.
Accordingly, summary judgment will not be granted based on Oden’s purported failure to exhaust administrative remedies.
DISCRIMINATION — FIRST CAUSE OF ACTION
City argues that the first cause of action for FEHA discrimination must be dismissed because it had a legitimate reason for not promoting Oden to the recreational superintendent position: She was not the most qualified candidate in either of the instances in which she applied. (Motion at p. 16.)
City presents the following evidence as to the 2012 promotion. Bureau Manager Gladys Kaiser and RS Ted Stevens interviewed six applicants including Oden in January 2012, and according to their evaluations Oden was ranked third. (Kaiser Decl. ¶ 17.) Kaiser and Stevens ranked Michelle Gingras first, based on her demonstration of relevant knowledge and decision-making skills in her interview. (Kaiser Decl. ¶ 18.) Oden was ranked third because she lacked verbal skills, was unable to clearly answer questions, and was very basic in her answers. (Kaiser Decl. ¶ 19; Stevens Decl. ¶¶ 8–9.) City contends that Gingras is African-American and Caucasian. (Motion at p. 7.) Oden presents testimony from department community services supervisor, Rickie E. Thomas, that Gingras is of lighter complexion than Oden, and that he previously believed that Gingras was white. (Thomas Decl. at p. 5.)
Oden responds that Kaiser has a history of making remarks demonstrative of racial bias. Oden points to joke that Kaiser made around the time she returned from leave, in which she responded to another recreation assistant’s recent paramedic calls by stating, “Oh, he’s used to that, he just came from [Martin Luther] King Park.” (Opposition Exh. 1 at p. 109.) That park, named for the civil rights leader Martin Luther King, Jr., lies in a predominantly black community in a high statistic crime area, and Oden regarded Kaiser’s statement as exhibiting an inaccurate stereotype of the park and its patrons. (Opposition Exh. 1 at p. 109.) This account is corroborated in the declaration of Rickie E. Thomas, who heard the remark and derived the same impression. (Thomas Decl. ¶ 15.)
Oden presents the declaration of Nichole Wilson, a former recreation specialist with the City who worked under Kaiser in 2001. She testifies that when she worked for Kaiser, she would allow Asian and Hispanic employees leave early without question, yet would question black employees about their reasons for leaving early. (Wilson Decl. ¶ 2.) She also testifies that Kaiser gave Asian and Hispanic employees preference to work extra hours for special events. (Wilson Decl. ¶ 2.) Oden also presents the declaration of Sherri Nixon-Joiner, former bureau manager in the department until her retirement in July 2010 (Nixon-Joiner Decl. ¶ 1), who testifies that Kaiser grows visibly uncomfortable when she speaks to African-Americans who are “direct and forceful in his/her tone of voice.” (Nixon-Joiner Decl. ¶ 11.)
Oden also argues that City failed to follow its internal policies when it denied Oden’s applications for promotion in 2012 and 2013. (Opposition at pp. 17–18.) Specifically, Oden points to the City’s Policy on Management Selection and Recruitment, which states, “Care should be taken to select a panel that is representative of the City’s labor market.” (Opposition Exh. C (Depo Exh. 33).) However, the panelists for Oden’s interviews consisted either of Kaiser and Stevens (for the 2012 interview), Kaiser personally (for the 2012 appointment of the interim position), or three men, including one African-American man, for the 2013 application.
Finally, Oden notes that after she complained about being passed over for the position of RS and interim RS in 2012, Personnel Officer Kenneth Campbell related to her (through an HR officer) that the reason for the denial of her promotions was her “work performance,” rather than the interview-related reasons that Kaiser and Stevens offer in their declarations. (Opposition Exh. I at p. 94.)
The court concludes that triable issues exist as whether City’s denial of Oden’s promotion application in January 2012 and the subsequent failure to select her in March 2012 for the interim RS position was discriminatory. Gladys Kaiser participated in the interview on the first application, and made the decision to appoint another individual to the interim position. Oden has presented evidence making a triable issue of Kaiser’s bias: she was heard making a racially tinged joke at the expense of African-Americans; one of her former subordinates (Wislson) testifies to her potential employment of bias in the distribution of privileges, and Nixon-Joiner testifies concerning Kaiser’s visible discomfort interacting with African-Americans who express themselves directly. This evidence provides a context in which a trier of fact could evaluate Kaiser’s own reasons for evaluating Oden poorly, as a potential discomfort with or bias against African-American applicants may account for her poor evaluation of Oden’s communication skills.
This reasoning does not extend however, to the denial of Oden’s promotion in 2013, in which Oden was eliminated from contention without the input of Kaiser. (Plaintiff’s Separate Statement of Undisputed Material Facts No. 23–24.) The fact that the panel that eliminated Oden from contention did not include a woman or someone from outside the city is insufficient basis to conclude that their evaluations and rankings are mere pretext for bias.
City also argues that no discrimination claim can be based on Oden’s reassignment to Miracle Park, because there is no evidence that the lateral reassignment constituted an adverse employment action, and also because the reassignment decision was made for neutral and legitimate reasons. (Motion at pp. 18–19.) Specifically, it was made because Oden did not have the computer skills to run the “digital academy” being set up in Orizaba Park (one of her existing assignments), and because when the decision was made in March 2012, the bureau was undergoing reorganization to handle budget cuts, and many supervisors were being reassigned. (Motion at p. 11.)
Oden testifies, however, that her reassignment to Miracle Park resulted in fewer responsibilities and less exposure. She also notes that the City’s brochure publicizing its parks noted that Miracle Park’s sole listed amenity as a picnic area, in contrast to the many amenities Oden formerly supervised at Orizaba. (Oden Decl. ¶¶ 32–33.) This characterization of Miracle Park finds corroboration in the Nixon-Joiner declaration, who states that Miracle is not at all comparable to Orizable in terms of programs, activities, size, budget, and community exposure. (Nixon-Joinder Decl. ¶ 6.) “[A] job reassignment may be an adverse employment action when it entails materially adverse consequences.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279.) Oden has presented evidence creating a triable issue of fact as to whether her reassignment to Miracle Park was an adverse employment action.
As to the reasoning for the change, Kaiser testifies that a number of changes were made to community services supervisor assignments in March 2012 as a result of “budget cuts that was [sic] to have huge impacts on the Department’s facilities and programs.” Kaiser Decl. ¶ 44.) Kaiser notes that among these changes was the shift of one “RB,” “a dark skinned African-American female,” to a larger park with more duties and responsibilities. (Kaiser Decl. ¶ 47.) Thus City argues that its reassignment of Oden to Miracle Park during the same period was not racially motivated.
But triable issues of fact exist as to whether this was the case. For one, there exists the evidence of racial bias described above. But there is also evidence that the removal of Oden from Orizaba was pretextual. For one, the employee assigned to replace Oden at Orizaba was ranked below her in the promotion application process that preceded the transfer. (Kaiser Decl. Exh. 21.) And although City now proffers the reason that Oden’s replacement was more versed in computers than Oden, that same individual spoke to Oden and others during and regarding his transfer, and said that he himself did not know why he was being transferred to the park. (Oden Decl. ¶ 29; Thomas Decl. ¶ 13.)
Accordingly, the motion is DENIED as to the first cause of action as it relates to the denial of Oden’s 2012 application for promotion, the failure to appoint her to the interim assignment in that same year, and Oden’s Orizaba-to-Miracle reassignment. It is GRANTED as to Oden’s failed promotion application in 2013.
RETALIATION — SECOND CAUSE OF ACTION
City argues that Oden cannot prevail on her retaliation claim for four reasons. First, because she did not engage in protected activity in March 2012 when she complained of unfair treatment (Motion at p. 20); second, because the reassignment decision that Oden claims is retaliatory was made before she filed her DFEH charge (Motion at p. 21); third, no retaliation occurred by denial of medical leave, because Oden’s medical leave was approved (Motion at pp.21–22); and fourth, the City had a legitimate reason for selecting others for the promotional position. (Motion at p. 22.)
“[I]n 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, Inc. (2005) 36 Cal.4th 1028, 1042.) A person has engaged in protected activity when they have “opposed any practices forbidden under this part [i.e. FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code § 12940, subd. (h).)
Triable issues exist as to whether Oden engaged in protected activity. First, she herself recalled conversation with HR as involving a claim for “discrimination” based on being passed over for promotion, specifically recalling saying, “I’ve got to talk to somebody about this because they cannot continue to discriminate against me like this.” (Opposition Exh. A at pp. 80–81.) And the HR employee who received Oden’s complaint recalled looking up the ethnicity of Michelle Gingras after Oden made the complaint because she understood Oden’s complaint to constitute a claim for racial discrimination. (Opposition Exh. I at pp. 78–81.) Thus a trier of fact could find that Oden made a complaint against practices forbidden by FEHA in March 2012.
By the same token, it is of little moment if Oden’s filing of her DFEH charge in June 2012 post-dated her assignment to Miracle Park, as she may have already engaged in protected activity in March of that year. (Motion at p. 21.)
Nor may the court conclude, as City argues, that it granted all leave that Oden requested, for, as Oden testifies, her request for leave included both a request for a leave of absence and intermittent leave following that, and the City never informed her whether her request for intermittent leave was approved. (Oden Decl. ¶ 23.) Oden testifies that had the City approved her request for intermittent leave to attend doctor’s appointments, she may have returned to work sooner than she did. (Oden Decl. ¶ 24.) Thus triable issues are raised as to whether the City did in fact deny her request for leave.
Moreover, triable issues exist as to whether Oden’s Orizaba-to-Miracle reassignment was retaliatory. As discussed above, although City contends Oden’s removal from Orizaba was based on the needs of the digital academy there, the person appointed to fill her place was ranked below her in the promotion interview and himself expressed confusion with the transfer as it was happening.
However, the court agrees with City that no inference of retaliatory intent can be drawn from the evidence surrounding Plaintiff’s application for promotion in 2013, for the same reasons discussed with regard to her discrimination claim.
Accordingly, the motion is DENIED as to the second cause of action for retaliation as regards Oden’s reassignments after her complaint in March 2012.
CFRA VIOLATION — THIRD CAUSE OF ACTION
City argues that there are no triable issues in the third cause of action for CFRA violations because it did not interfere with Oden’s CFRA rights and did not retaliate when it reassigned her upon her return from leave. (Motion at pp. 23–25.) City also argues that the denial of her promotions was not retaliatory for the reasons described above. (Motion at pp. 25–26.)
The CFRA entitles eligible employees to take up to 12 unpaid workweeks in a 12-month period for family care and medical leave to care for their children, parents, or spouses, or to recover from their own serious health condition. An employee who takes CFRA leave is guaranteed that taking such leave will not result in a loss of job security or other adverse employment actions. Upon an employee's timely return from CFRA leave, an employer must generally restore the employee to the same or a comparable position.
(Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487, internal citations and quotation marks omitted.)
“A CFRA interference claim “consists of the following elements: 1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250.)
Once more, triable issues exist as to whether City provided Oden with the leave she requested. Her request for leave included a request for sporadic, intermittent leave. (Oden Decl. Exh. I.) Although City initially provided notice that Oden’s leave during the 2012 period was provisionally designated CFRA leave (Bender Decl. ¶ 16), Oden testifies that she received no communication regarding the CFRA designation of her leave extensions. (Oden Decl. ¶ 23.) City’s conditional CFRA certification notice, given on March 15, 2012, addresses request for leave from March 15 through April 1, 2012, and does not address her request for intermittent leave thereafter. (Motion Exh. 14.) Thus triable issues exist as to whether City denied Oden her rights under CFRA.
Also, for the same reasons that triable issues exist as to whether Oden’s reassignment from Orizaba Park to Miracle Park was an adverse employment action, triable issues exist as to whether Oden’s reassignment was to “the same or comparable position” upon return from CFRA leave. (Gov. Code § 12945.2, subd. (c)(4).)
City also argues that, even if the position was not comparable, Oden had no greater right to her old position under CFRA than she would have had if she remained at work. (Motion at p. 25, citing 2 CCR § 11089, subd. (d)(1).) City argues that Oden’s reassignment from Orizaba to Miracle was due to the city-wide staff reorganization, not because Oden had taken CFRA leave. (Motion at p. 25) Yet for the same reasons that a trier of fact may find that the City’s justification for the reassignment was pretext in the discrimination context, they may find likewise with regard to CFRA retaliation.
But once again, there is no evidence supporting Oden’s claim that the denial of her promotion application in 2013 was retaliatory.
Accordingly, the motion for summary adjudication is GRANTED as to Oden’s CFRA retaliation cause of action arising from the denial of the 2013 promotion, and otherwise DENIED as to the third cause of action.
 Oden contends that Kaiser was involved in the 2013 interviews, but this was as a second-round interview panelist. (PUMF No. 24.) Oden did not make it to the second round in 2013.
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