This case was last updated from Los Angeles County Superior Courts on 07/10/2019 at 01:25:41 (UTC).

GUS MALKOUN VS CITY OF LOS ANGELES

Case Summary

On 02/22/2018 GUS MALKOUN filed a Labor - Other Labor lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM F. FAHEY and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5074

  • Filing Date:

    02/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM F. FAHEY

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

MALKOUN GUS

Defendants and Respondents

CITY OF LOS ANGELES

DOES 1 TO 10

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BROWN ROBERT S. ESQ.

SOTTILE TIMOTHY B. ESQ.

SOTTILE TIMOTHY BRUCE ESQ.

BROWN ROBERT STANFORD ESQ.

Defendant and Respondent Attorneys

DENNIS C. KONG DEPUTY CITY ATTORNEY

FEUER MICHAEL NELSON

 

Court Documents

Stipulation and Order

1/31/2019: Stipulation and Order

Notice

3/7/2019: Notice

Notice

5/17/2019: Notice

Minute Order

5/20/2019: Minute Order

CASE MANAGEMENT STATEMENT

5/23/2018: CASE MANAGEMENT STATEMENT

CIVIL DEPOSIT

5/24/2018: CIVIL DEPOSIT

DEFENDANT CITY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

5/24/2018: DEFENDANT CITY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

CASE MANAGEMENT ORDER

5/24/2018: CASE MANAGEMENT ORDER

Minute Order

5/24/2018: Minute Order

PROOF OF SERVICE SUMMONS

5/9/2018: PROOF OF SERVICE SUMMONS

CASE MANAGEMENT STATEMENT

5/9/2018: CASE MANAGEMENT STATEMENT

NOTICE OF CASE MANAGEMENT CONFERENCE

3/19/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC.,SECTION 170.6)

2/26/2018: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC.,SECTION 170.6)

ORDER TO SHOW CAUSE HEARING

3/1/2018: ORDER TO SHOW CAUSE HEARING

NOTICE OF CASE MANAGEMENT CONFERENCE

3/1/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

Minute Order

3/5/2018: Minute Order

SUMMONS

2/22/2018: SUMMONS

COMPLAINT FOR DAMAGES: 1. RETALIATION IN VIOLATION OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT [GOV. CODE 12940(H)]

2/22/2018: COMPLAINT FOR DAMAGES: 1. RETALIATION IN VIOLATION OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT [GOV. CODE 12940(H)]

6 More Documents Available

 

Docket Entries

  • 06/10/2019
  • at 09:30 AM in Department 47, Randolph M. Hammock, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 06/03/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/20/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Post-Mediation Status Conference - Not Held - Continued - Stipulation

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  • 05/20/2019
  • Minute Order ( (Post-Mediation Status Conference)); Filed by Clerk

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  • 05/17/2019
  • Notice (of Continuance of Post-Mediation Status Conference); Filed by City of Los Angeles (Defendant)

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  • 04/18/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 03/07/2019
  • Notice (of Order Granting Parties' Joint Stipulation to Continue Trial and All Dates); Filed by City of Los Angeles (Defendant)

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  • 01/31/2019
  • Stipulation and Order (Stipulation to Continue Trial and All Dates; Proposed Order); Filed by City of Los Angeles (Defendant)

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  • 06/18/2018
  • at 08:30 AM in Department 69; Case Management Conference (Conference-Case Management; Advanced to a Previous Date) -

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  • 06/18/2018
  • Minute order entered: 2018-06-18 00:00:00; Filed by Clerk

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21 More Docket Entries
  • 03/05/2018
  • Minute Order

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  • 03/01/2018
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 03/01/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/01/2018
  • ORDER TO SHOW CAUSE HEARING

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  • 03/01/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/26/2018
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC.,SECTION 170.6)

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  • 02/26/2018
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Gus Malkoun (Plaintiff)

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  • 02/22/2018
  • COMPLAINT FOR DAMAGES: 1. RETALIATION IN VIOLATION OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT [GOV. CODE 12940(H)]

    Read MoreRead Less
  • 02/22/2018
  • SUMMONS

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  • 02/22/2018
  • Complaint; Filed by Gus Malkoun (Plaintiff)

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Tentative Rulings

Case Number: BC695074    Hearing Date: August 11, 2020    Dept: 47

Gus Malkoun v. City of Los Angeles, et al.

 

MOTION FOR SUMMARY JUDGMENT[1]

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY(S): Plaintiff Gus Malkoun

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was retaliated against when he complained that he was being discriminated against due to his religion.

Defendant City of Los Angeles moves for summary judgment or, in the alternative, summary adjudication.

TENTATIVE RULING:

Defendant City of Los Angeles’s motion for summary judgment is GRANTED.

Defendant’s alternative motion for summary adjudication is DENIED AS MOOT.

DISCUSSION:

Plaintiff’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

MSJ Exhibits

Nos. 7-15: OVERRULED. Not inadmissible hearsay; document may be authenticated before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Declaration of Gus Malkoun

No. 7: OVERRULED. Sufficient foundation; to the extent that it assumes facts not otherwise in evidence, it will be given appropriate weight (or lack thereof).

No. 9: OVERRULED. Sufficient foundation; to the extent that it assumes facts not otherwise in evidence, it will be given appropriate weight (or lack thereof).

No. 10: OVERRULED. Sufficient foundation; to the extent that it assumes facts not otherwise in evidence, it will be given appropriate weight (or lack thereof).

Motion For Summary Judgment

As discussed below, Defendant has demonstrated that it is entitled to prevail, as a matter of law, as to each of the two causes of action asserted against it. Accordingly, the motion for summary judgment is GRANTED.[2]

Motion For Summary Adjudication

Issue No. 1: “Many of the alleged adverse acts that Plaintiff complains of cannot support his retaliation claim because they are time-barred.”

A motion for summary adjudication “shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1), bold emphasis added.) Here, Defendant does not argue that the first cause of action for retaliation fails in its entirety because it is time-barred; Defendant argues that “many” of the alleged adverse acts are time-barred, meaning that others are not (or that at least one other is not).

Summary adjudication of a “legal issue . . . that does not completely dispose of a cause of action” is allowed only if the moving party complies with the procedures outlined in CCP § 437c(t). Defendant could have negotiated and submitted a joint stipulation to have this issue heard, along with the required supporting declaration, and sought the Court’s permission to include it in the motion. (Ibid.) Defendant did not do so here.

Accordingly, the motion for summary adjudication is DENIED as to Issue No. 1.

Issue No. 2: “Plaintiff cannot establish a prima facie case of retaliation because there is insufficient evidence establishing the necessary causal link between his protected act and adverse actions.”

To establish a prima facie case of retaliation under FEHA, Plaintiff must show (1) that he engaged in a “protected activity,” (2) that his employer subjected him to an adverse employment action; and (3) that a causal link existed between the protected activity and his employer’s action. (Yanowitz v. L’Oreal U.S.A., Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues that the first cause of action for retaliation fails because Plaintiff cannot show the required element of causation.

An employer moving for summary judgment on a FEHA cause of action may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking.”

(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591, bold emphasis added.)

Plaintiff alleges that he engaged in a protected activity when he “lodged a discrimination complaint against Ms. Ali-Ahmad with the Office of Discrimination Complaint Resolution.” (Complaint ¶ 33.) Plaintiff does not dispute that he filed this discrimination complaint in May 2014. (Defendant’s Separate Statement of Undisputed Facts (“UF”) No. 20; Plaintiff’s Separate Statement of Disputed Facts (“SS”) No. 20; Complaint ¶ 33; Malkoun Depo. 122:22-24 & Exh. 15.) Nor does he dispute that he claims Defendant engaged in retaliation beginning in 2011. (UF Nos. 21-24; Malkoun Depo. 142:11-20; 65:9-15; 110:3-16; 96:7-21; Exhs. F, G, H; Complaint ¶ 26.)

“Because retaliation under FEHA requires the plaintiff to show that the employer was motivated to retaliate by the plaintiff's protected activity, actions the employer took before the plaintiff engaged in the protected activity necessarily are irrelevant.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 724 n.17.) Defendant has not made any showing, however, that the only retaliation that Plaintiff claims occurred before he filed his discrimination complaint. Indeed, Plaintiff alleges retaliation “[d]uring the course of the alleged ODCR investigation.” (Complaint ¶ 35.) Plaintiff also alleges that he was “disciplined . . . unfairly on 3 occasions,” including once in February 2016. (¶ 37.) He also alleges other retaliatory conduct in 2016 and 2017. (¶¶ 38-39.)

Defendant argues that these other alleged acts of retaliation (which are not mentioned in Defendant’s separate statement in connection with this issue) do not support this cause of action because too much time passed between the protected activity and these alleged retaliatory acts. (Defendant’s Mem., at p. 7.) However, Plaintiff does not only allege retaliatory acts years before and years after he complained about discrimination. For example, Plaintiff alleges that he was ranked second on a list of candidates for a senior construction engineer position “in or around August of 2014” and was not selected. (Complaint ¶ 44.) Whether Defendant can show legitimate non-retaliatory reasons for its actions will be discussed in connection with the next issue, but as to this one, it is not the case that all of Plaintiff’s allegations are remote in time as compared with his discrimination complaint.

The “pleadings determine the scope of relevant issues in a summary judgment motion.” (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Here, Defendant has addressed only selected allegations from Plaintiff’s complaint in its separate statement. Therefore, Defendant has not met its initial burden to show that there are no disputed material facts as to causation. The burden therefore does not shift to Plaintiff to show the existence of any disputed material facts.

Accordingly, the motion for summary adjudication is DENIED as to Issue No. 2.

3. Issue No. 3: “Even if Plaintiff were to meet her [sic] prima facie showing of retaliation, the City’s actions were legitimate and based on personnel management decisions.”

Defendant argues that the first cause of action for retaliation fails because its allegedly retaliatory actions were taken for legitimate nonretaliatory reasons related to personnel management.

An employer moving for summary judgment on a FEHA cause of action may satisfy its initial burden of proving a cause of action has no merit by showing either that one or more elements of the prima facie case “is lacking, or that the adverse employment action was based on legitimate [nonretaliatory] factors.” (Citations omitted.) Once the employer sets forth a [nonretaliatory] reason for the decision, the burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the employer's showing was untrue or pretextual.” (Citations omitted.) “[A]n employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was [retaliatory].” (Guz, at p. 361; see also Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098 [38 Cal. Rptr. 3d 240] [if a defendant employer's motion for summary judgment “relies in whole or in part on a showing of [nonretaliatory] reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such [nonretaliatory] reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [adverse action]. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional [retaliation] occurred”].)

(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591-592, bold emphasis added.)

Plaintiff alleges that Defendant retaliated against him by transferring him, giving him performance reviews that were lower than what he deserved, unfairly disciplining him, stripping him of his duties as project manager, assigning him to smaller projects than previously, and not selecting him for particular promotions. (Complaint ¶¶ 36-45.)

Defendant presents evidence that multiple supervisors have found Plaintiff to be argumentative, disrespectful, and hostile. (UF No. 25; Arrington Decl. ¶ 4; Bagherzadeh Decl. ¶¶ 2, 6; Ali-Ahmad Decl. ¶ 3.) Plaintiff also was unreceptive to feedback. (UF No. 26; Arrington Decl. ¶ 4; Bagherzadeh Decl. ¶ 6; Ali-Ahmad Decl. ¶ 3; Malkoun Depo. 340:12-25, 386:15-388:4, 359:3-363:3.) Thus, Plaintiff was transferred to give him a “fresh start” after his relationship with his team had grown hostile. (UF No. 27; Ali-Ahmad Decl. ¶ 7; Malkoun Depo. 146:13-24; 327:20-22.) Likewise, he was not selected for certain positions because of the deficiencies in his communication and interpersonal skills and because of poor performance in interviews. (Ali-Ahmad Decl. ¶ 9; Hillard Decl. ¶¶ 5-6; Arrington Decl. ¶ 7; Malkoun Depo. 360:2-363:3; Exhs. Z-HH.)

To the extent Plaintiff alleges that he was given lower performance reviews than he deserved, in addition to the evidence above regarding Plaintiff’s attitude, Defendant presents evidence that his overall ranking during the period of his ODCR complaint was the same as it had been in prior years. (UF No. 28; Exhs. P-S.) His supervisors also gave him credit for positive aspects of his performance while recommending areas for improvement. (UF No. 29; Bagherzadeh Decl. ¶ 6; Arrington Decl. ¶ 5.)

As for stripping Plaintiff of his duties as project manager, Defendant presents evidence that this was because the project was ending and that Plaintiff knew as early as 2010 that this project and associated bonus would end. (UF No. 30; Ali-Ahmad Decl. ¶ 8; Malkoun Depo. at 45:1-10.) As for assigning him smaller projects, he was assigned projects “based on the operational needs” of the division and based on his “experience and qualifications.” (Bagherzadeh Decl. ¶ 6.)

This evidence is sufficient to show that, to the extent that Defendant took any adverse employment actions against Plaintiff, it did so for nonretaliatory reasons: namely, Plaintiff’s deficiencies in communication and interpersonal skills and Defendant’s operational and personnel needs. The burden therefore shifts to Plaintiff to cite admissible evidence sufficient to raise a triable issue of material fact that this reason is a pretext for retaliation.

If the employer meets its initial burden in this manner, the plaintiff then has the burden to produce “substantial evidence that the employer’s stated [nonretaliatory] reason for the adverse action was untrue or pretextual, or evidence the employer acted with a [retaliatory] animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in [retaliation].” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [67 Cal. Rptr. 2d 483].)

(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, bold emphasis added.)

Plaintiff points to a number of facts that he claims show pretext. Plaintiff has not, however, come forward with “substantial” evidence that Defendant’s actions were pretextual, either viewing these facts alone or in combination.

Plaintiff argues that none of his performance evaluations indicated that he was “argumentative, disrespectful and hostile.” (SS No. 25.) He also argues that Ms. Ali-Ahmad was not specific about her “constructive feedback” and that Mr. Bagherzadeh did not identify any particular problems with his behavior. (SS Nos. 26, 29.) There are, however, contemporaneous documents (predating Plaintiff’s discrimination complaint and contemporaneous with the evaluations he points to) that do reflect “disruptive and inappropriate behavior.” (Defendant’s Exh. E, at p. 1 [Counseling Memo Regarding Your Verbal Outbursts at City Meetings].) Thus, Plaintiff has not come forward with substantial evidence that Defendant’s criticisms of his work were pretextual. In addition, Defendant’s decision to suspend Plaintiff for 10 days in December 2015 was upheld in 2018, with the court finding that Defendant did not abuse its discretion in suspending Plaintiff for insubordination. (Defendant’s Exh. N.) Thus, at least one adverse employment action taken by Defendant in the relevant time period has been found to have a basis in Plaintiff’s work behavior.

The performance evaluations themselves also support Defendant’s assessment of Plaintiff’s performance, contrary to Plaintiff’s assertions that his supervisors’ current assertions as to his behavior are not supported by the evaluations. For example, one of the evaluations states that a goal was to “find a new working environment to have a fresh start.” (Defendant’s Exh. T, at p. 6.) It is reasonable to infer that there were problems with the existing working environment at that time. Plaintiff disputes Defendant’s contention that his performance ratings were unchanged after he filed his discrimination complaint, stating that his ratings went from “Outstanding” to “Above Standard” after Ms. Ali-Ahmad became his supervisor. (SS No. 28.) The relevant time period, however, is not from when Ms. Ali-Ahmad became his supervisor but from when Plaintiff made his complaint of discrimination, for purposes of a retaliation claim. After that time period, Plaintiff has not come forward with any evidence showing an unexplained decrease in his performance ratings.

As to his transfer, Plaintiff argues that he was transferred to a division he had not requested, as opposed to the five divisions he had chosen when asked where he would like to be transferred to. (SS No. 27.) To be actionable as an adverse employment action, however, an “employer’s action must materially affect the terms, conditions, or privileges of employment.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 587.) Plaintiff has not come forward with evidence that his transfer to the architectural division as opposed to a division of his choice had a “material” effect on the terms or conditions of his employment. Moreover, even if this transfer could be considered an adverse employment action, Plaintiff has not shown that his transfer was pretextual.

As to the decision to end his status as project manager, he disputes that this was an ordinary business decision unrelated to his complaint. (SS No. 30.) He also disputes that he was assigned projects based on operational needs. (SS No. 31.) Essentially, Plaintiff contests the credibility of Defendant’s declarants’ explanations of their reasoning. This is insufficient to defeat summary adjudication. (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1062.)

The plaintiff must do more than raise the inference that the employer's asserted reason is false. “[A] reason cannot be proved to be ‘a pretext for [retaliation]’ unless it is shown both that the reason was false, and that [retaliation] was the real reason.” (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515 [125 L. Ed. 2d 407, 113 S. Ct. 2742].) If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer's true reason was [retaliatory], the employer is entitled to summary judgment. (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203.)

(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (italics in original, bold emphasis and underlining added).) This is especially true when documentary facts support Defendant’s arguments, such as the written criteria for project manager assignments and bonuses indicating that project manager positions are “temporary,” last “no longer than the life of the project(s),” and “could be of a shorter duration than the life of the project(s).” (Defendant’s Exh. C.)

Finally, Plaintiff disputes that he was not selected for various positions because he has deficient communication and interpersonal skills or performed poorly in interviews. (SS Nos. 32-35.) However, although Plaintiff frequently received ratings of “standard” in his performance evaluations for communication and building/maintaining appropriate working relationships, these categories were consistently his lowest ratings relative to other aspects of his performance. (Defendant’s Exh. T, at p. 4.) The contemporaneous interview records also reflect communication issues and other problems, such as answers that were “limited in depth and did not seem to have a logical thought process or conclusion,” an “abrupt” discussion that “lacked focus and logic,” and “aggressive” discussion that was “limited and seemed to really lack any sense or common Best Management Practice.” (Defendant’s Exhibit Z.) Other interview records indicated that he had “poor communication skills” and “did not adequately respond to the questions.” (Ibid.; Exh. AA.) Interview records predating Plaintiff’s discrimination complaint identified similar issues, such as answers that “did not sufficiently address . . . the question.” (Exh. DD.) In any event, even if Defendant could be shown to have made a mistake in failing to promote Plaintiff to a particular position, Plaintiff “cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether [retaliatory] animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)

Ultimately, “[e]mployers must be given wide latitude to make independent, good-faith personnel decisions without the threat of a jury second-guessing their business judgments.” (Gonzalez v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 428, abrogated on other grounds by Moisi v. College of Sequoias Cmty. College (1993) 19 Cal.App.4th 564.) Here, viewed collectively, Plaintiff has not come forward with substantial evidence that Defendant’s decisions were anything but good-faith personnel decisions based on Plaintiff’s work performance and attitude and the needs of the department.

This Court is mindful of its obligation to “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Moreover, this Court is aware of its duty not to weigh or judge the credibility of the witnesses. However, this duty is not necessarily absolute. Any evidence proffered by the opposing party still must be specific and “substantial” in nature to create a triable issue of material fact. It cannot be “speculative.” The inferences required to be taken must be “reasonable.” (See, e.g., Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.) Here, Plaintiff’s evidence of pretext does not constitute “substantial” evidence from which a trier of fact could find that, despite the legitimate, non-discriminatory reason offered for Defendant’s actions, the true motivating factor was retaliation. (Arteaga v. Brink's, Inc. (2008) 163 Cal. App. 4th 327, 353 [holding that the plaintiff had not shown pretext with five discrete arguments, even in combination, because they were all “unconvincing”].)

Because Plaintiff has failed to meet his burden of demonstrating that a triable issue of material fact exists as to whether Defendant’s proffered legitimate, non-discriminatory reason was a pretext for retaliation, the motion for summary adjudication is GRANTED as to Issue No. 3. This adjudication, in and of itself, adjudicates fully the First Cause of Action for Retaliation.

4. Issue No. 4: “Plaintiff’s second cause of action fails as a matter of law because Plaintiff never exhausted his claim.”

It is unnecessary to reach this issue in light of Issue No. 5, discussed below. Accordingly, the motion for summary adjudication is DENIED AS MOOT as to Issue No. 4.

5. Issue No. 5: “Additionally, this cause of action fails because it is completely derivative of his retaliation claim which fails for the independent reasons addressed in Issues 1 through 3.”

There can be no liability for an employer’s failure to prevent harassment, discrimination, or retaliation unless actionable harassment, discrimination, or retaliation occurred against the plaintiff. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 915 n.4; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)

For the reasons discussed above re: Issue No. 3, Plaintiff’s retaliation claim is not viable. Accordingly, the motion for summary adjudication as to Issue No. 5 is GRANTED.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: August 11, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court


[1] Although the caption of the motion does not reflect that Defendant also seeks summary adjudication in the alternative, the notice of motion does, as required by CCP § 1010 and CRC 3.1350(b).

[2] For ease of reference, the Court will address Defendant’s showing as to each cause of action in the context of Defendant’s motion for summary adjudication.