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This case was last updated from Los Angeles County Superior Courts on 12/29/2020 at 22:31:08 (UTC).

JANE DOE VS UNIVERSITY OF SOUTHERN CALIFORNIA ET AL

Case Summary

On 01/29/2018 JANE DOE filed a Labor - Wrongful Termination lawsuit against UNIVERSITY OF SOUTHERN CALIFORNIA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RITA MILLER, HOLLY E. KENDIG, SAMANTHA P. JESSNER, YOLANDA OROZCO and JAMES R. DUNN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1494

  • Filing Date:

    01/29/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RITA MILLER

HOLLY E. KENDIG

SAMANTHA P. JESSNER

YOLANDA OROZCO

JAMES R. DUNN

 

Party Details

Plaintiffs and Petitioners

JANE DOE

DOE JANE

Defendants, Respondents and Appellants

UNIVERSITY OF SOUTHERN CALIFORNIA

CORRAL DAVID

DOES 1 - 20

DOE JANE

Not Classified By Court

LOGAN KERI A.

LAMB & KAWAKAMI LLP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RING DAVID M. ESQ.

RING DAVID M

RING DAVID M.

Appellant Attorney

VONESCHEN LISA ANNE

Defendant and Respondent Attorneys

KINSEY EUGENE E. ESQ.

LAMB & KAWAKAMI LLP

WILLIS VANESSA

KINSEY EUGENE E ESQ.

LAVETTER MICHAEL LAURENCE

WILLIS VANESSA V.

KENNEDY TRACEY A.

 

Court Documents

Appeal - Notice of Appeal/Cross Appeal Filed - WITH PROOF OF SERVICE

10/5/2018: Appeal - Notice of Appeal/Cross Appeal Filed - WITH PROOF OF SERVICE

Appeal - Notice Court Reporter to Prepare Appeal Transcript

12/20/2018: Appeal - Notice Court Reporter to Prepare Appeal Transcript

Case Management Statement

9/4/2019: Case Management Statement

Case Management Order

9/12/2019: Case Management Order

Request for Judicial Notice

11/8/2019: Request for Judicial Notice

Notice - NOTICE OF CONTINUANCE OF DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION FOR SUMMARY ADJUDICATION

5/22/2020: Notice - NOTICE OF CONTINUANCE OF DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION FOR SUMMARY ADJUDICATION

Reply - REPLY DEFENDANT USC'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

8/7/2020: Reply - REPLY DEFENDANT USC'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

Notice of Ruling

8/18/2020: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/29/2020

10/29/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/29/2020

ORDER RE: DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS AND DEFENDANT DAVID CORRAL'S JOINDER EN PLAINTIFF [SIC] UNIVERSITY OF SOUTHERN CAL

6/15/2018: ORDER RE: DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS AND DEFENDANT DAVID CORRAL'S JOINDER EN PLAINTIFF [SIC] UNIVERSITY OF SOUTHERN CAL

Minute Order - Minute Order (Case Management Conference)

11/6/2018: Minute Order - Minute Order (Case Management Conference)

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL)

3/14/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: APPEAL)

Answer - ANSWER UNIVERSITY OF SOUTHERN CALIFORNIA'S ANSWER TO JANE DOE'S COMPLAINT

6/14/2019: Answer - ANSWER UNIVERSITY OF SOUTHERN CALIFORNIA'S ANSWER TO JANE DOE'S COMPLAINT

DEFENDANT DAVID CORRAL'S NOTICE OF JOINDER AND JOINDER IN PLAINTIFF, UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL JUDICIAL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

5/3/2018: DEFENDANT DAVID CORRAL'S NOTICE OF JOINDER AND JOINDER IN PLAINTIFF, UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL JUDICIAL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

PROOF OF ELECTRONIC SERVICE

5/3/2018: PROOF OF ELECTRONIC SERVICE

NOTICE OF CHANGE IN HEARING DATE OF MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

5/4/2018: NOTICE OF CHANGE IN HEARING DATE OF MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

DECLARATION OF FRANCES CLAIRMONT IN SUPPORT OF DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

3/22/2018: DECLARATION OF FRANCES CLAIRMONT IN SUPPORT OF DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA'S MOTION TO COMPEL ARBITRATION AND TO STAY JUDICIAL PROCEEDINGS

PROOF OF SERVICE SUMMONS -

2/21/2018: PROOF OF SERVICE SUMMONS -

103 More Documents Available

 

Docket Entries

  • 01/11/2021
  • Hearing01/11/2021 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 12/15/2020
  • Docketat 09:00 AM in Department 31, Yolanda Orozco, Presiding; Post-Mediation Status Conference - Held

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  • 12/15/2020
  • Docketat 09:00 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Held

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  • 12/15/2020
  • DocketMinute Order ( (Final Status Conference; Post-Mediation Status Conference)); Filed by Clerk

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  • 12/14/2020
  • Docketat 09:00 AM in Department 31, Yolanda Orozco, Presiding; Post-Mediation Status Conference (ReMSC) - Not Held - Clerical Error

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  • 12/14/2020
  • DocketTrial Brief (DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA?S TRIAL BRIEF); Filed by University of Southern California (Defendant)

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  • 12/11/2020
  • DocketTrial Brief; Filed by Jane Doe (Plaintiff)

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  • 12/10/2020
  • DocketExhibit List; Filed by Jane Doe (Plaintiff); University of Southern California (Defendant)

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  • 12/08/2020
  • DocketWitness List (JOINT); Filed by Jane Doe (Plaintiff)

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  • 11/17/2020
  • DocketJoint Stipulation and Order Re Trial and Mandatory Settlement Conference; Filed by University of Southern California (Defendant)

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183 More Docket Entries
  • 02/21/2018
  • DocketNotice and Acknowledgment of Receipt; Filed by Plaintiff/Petitioner

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  • 02/21/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 02/09/2018
  • DocketCOURT'S NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/09/2018
  • DocketNotice; Filed by Plaintiff/Petitioner

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  • 02/05/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/02/2018
  • DocketCIVIL DEPOSIT

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  • 02/02/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/29/2018
  • DocketComplaint; Filed by Jane Doe (Plaintiff)

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  • 01/29/2018
  • DocketSUMMONS

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  • 01/29/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. SEXUALT ASSAULT AND BATTERY ;ETC

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Tentative Rulings

Case Number: BC691494    Hearing Date: August 13, 2020    Dept: 31

MOTION FOR SUMMARY ADJUDICATION IS GRANTED.

Background 

On January 29, 2018, Plaintiff Jane Doe filed the instant action against Defendants University of Southern California; David Corral; and Does 1 through 20. The Complaint asserts causes of action for: 

  1. Sexual Assault and Battery (against Corral);

  2. Intentional Infliction of Emotional Distress (against Corral);

  3. Negligent Infliction of Emotional Distress (against Corral);

  4. Wrongful Termination – Constructive Discharge; and

  5. Harassment in Violation of FEHA (Gender/Sexual Harassment).

Defendant University of Southern California (hereinafter “Defendant” or “USC”) moves for summary adjudication of the fourth cause of action for wrongful termination – constructive discharge and the claim for punitive damages. 

Legal Standard 

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) 

“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 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 . . . 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 damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)   

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) 

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilarsupra, 25 Cal.4th at 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilarsupra, 25 Cal.4th at 855.) 

“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 the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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 the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

Request for Judicial Notice 

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)   

Defendant requests that the Court take judicial notice of the Complaint filed in this action. The request is GRANTED. 

Evidentiary Objections

Defendant submits a number of objections to the Declaration of Brendan P. Gilbert and the evidence submitted in support of Plaintiff’s Opposition. 

Objection No. 1, 50, 52, 76 – OVERRULED.  

Objection No. 74 – SUSTAINED. 

The remaining objections are immaterial to the Court’s disposition of the motion. Accordingly, the Court declines to rule upon them. All objections not ruled upon are preserved for appeal. (Code Civ. Proc. § 437c(q).)

Discussion 

Defendant moves for summary adjudication of the fourth cause of action and the claim for punitive damages. 

Fourth Cause of Action for Wrongful Termination – Constructive Discharge 

Exhaustion of Administrative Remedies 

“[A]lthough an employee must exhaust the FEHA administrative remedy before bringing suit on a cause of action under the act or seeking the relief provided therein, exhaustion is not required before filing a civil action for damages alleging nonstatutory causes of action. An employee, of course, may elect to waive the statutory cause of action and remedies, and proceed directly to court on the common law claims [citation]; alternatively, the employee may pursue both the administrative and the judicial avenues, either sequentially [citations] or simultaneously, in the latter case amending his or her complaint to join the FEHA cause of action once the Department has issued the right-to-sue letter [citation].” (Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) 

“Although [a] cause of action references FEHA as one source of the public policy at issue, [such a cause of action] is not a statutory FEHA cause of action. FEHA does not displace or supplant common law tort claims for wrongful discharge. [Citations.]” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1349.) 

“[W]hen a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to statutory limitations affecting the nature and scope of the statutory prohibition, but the common law claim is not subject to statutory procedural limitations affecting only the availability and scope of nonexclusive statutory remedies.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904.) For example, “a common law tort claim for wrongful termination in violation of the public policy against age discrimination articulated in the FEHA is not subject to the FEHA's requirement that an employee exhaust administrative remedies before seeking judicial relief because that requirement does not affect the nature and scope of the prohibition but only the availability and scope of the statutory remedies. An employee's posttermination failure to exhaust administrative remedies has no bearing on whether the termination violated the public policy expressed through the statutory prohibition against age discrimination, and thus the employee's posttermination administrative default does not preclude assertion of a nonstatutory tort claim for wrongful termination in violation of public policy.” (Id. at 905.) 

Defendant first moves for summary adjudication of the fourth cause of action for wrongful termination – constructive discharge arguing that Plaintiff failed to timely and sufficiently file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) for her constructive discharge claim.  

Defendant presents evidence that on November 8, 2017, Plaintiff filed an administrative complaint and received an immediate right to sue letter from the DFEH. (Undisputed Material Fact (“UMF”) 1.) Plaintiff’s DFEH complaint included only allegations regarding sexual harassment and assault and did not allege or even mention wrongful termination or constructive discharge. (UMF 2.) The Complaint seeks “reasonable attorneys’ fees and costs pursuant to statute” on both her fourth and fifth causes of action for constructive discharge and harassment. (UMF 3.)  

Defendant asserts that Plaintiff’s wrongful discharge claim is premised upon the alleged violations of California’s FEHA. Citing to Ong v. Cleland ((9th Cir. 1981) 642 F.2d 316), Defendant contends that because Plaintiff seeks statutory damages pursuant to the FEHA on her fourth cause of action for constructive discharge, she was required to exhaust her administrative remedies by filing a complaint with the DFEH on or before April 10, 2018—one year after the date of her resignation. Defendant argues that Plaintiff did not exhaust her administrative remedies with respect to her constructive discharge claim, which fails as a matter of law. 

In opposition, Plaintiff argues that her claim for constructive termination is not subject to FEHA’s exhaustion requirement because her cause of action is a common law claim, not a FEHA claim. Plaintiff asserts that Defendant’s argument that because Plaintiff’s prayer for relief requested “reasonable attorneys’ fees and costs pursuant to statute,” the cause of action is necessarily a FEHA claim has no foundation in law. 

Plaintiff contends that Defendant’s reliance on Ong v. Cleland is misplaced. Plaintiff argues that in that case, the plaintiff’s single claim in federal court was for violation of Title VII. (Ong, supra, 642 F.2d at 317.) Plaintiff asserts that there was no claim for wrongful termination. Plaintiff contends that although the plaintiff did allege that she was constructively discharged, she specifically alleged that the constructive discharge was one of the many injuries that resulted from the discrimination, which would have entitled her to monetary damages. (Id. at 317, 319-320.) Plaintiff argues that the plaintiff’s constructive discharge in Ong was alleged as an injury part and parcel to her Title VII claim, which may have entitled her to compensatory damages under Title VII. Plaintiff asserts that conversely, here, Plaintiff’s constructive discharge serves as a basis for a wrongful termination separate from her FEHA claim. Plaintiff contends that Ong is thus inapposite. 

Plaintiff argues that she was not required to raise the wrongful termination claim in her complaint to the DFEH, and her prayer for relief cannot serve as the basis for summary adjudication. (Weber v. Superior Court of Yolo County (1945) 26 Cal.2d 144, 148 (“If a plaintiff prays for relief beyond the obvious purpose of the complaint and not warranted by the facts alleged, the prayer may be disregarded.”).) 

In reply, Defendant appears to concede to Plaintiff’s argument that her fourth cause of action is a common law claim and that she therefore was not required to present a DFEH complaint in order to proceed. 

The Court finds that Defendant has failed to carry its burden establishing that there are no triable issues of material fact and that it is entitled to judgment as a matter of law. Plaintiff’s fourth cause of action for wrongful discharge – constructive termination is a common law cause of action, not a FEHA cause of action. Accordingly, Plaintiff was not required to exhaust administrative remedies by filing a DFEH complaint alleging her constructive discharge.  

As noted by the authorities above, although a cause of action may reference FEHA as a source of public policy, the reference to FEHA, i.e., Plaintiff’s allegation that the intolerable working conditions were created as a direct result of Defendant Corral’s sexual harassment and assault of Plaintiff, does not transform a common law cause of action into a FEHA cause of action. (Kim, supra, 226 Cal.App.4th at 1349.) FEHA does not displace or supplant common law tort claims for wrongful discharge. (Id.) As clearly stated by the California Supreme Court, a common law tort claim for wrongful termination in violation of the public policy articulated in the FEHA is not subject to the FEHA’s requirement that an employee exhaust administrative remedies before seeking judicial relief. (Stevenson, supra, 16 Cal.4th at 905.) 

Based on the foregoing, Defendant’s motion for summary adjudication of the fourth cause of action for wrongful termination – constructive discharge is DENIED on this ground. 

Wrongful Termination in Violation of Public Policy 

Defendant next moves for summary adjudication of the fourth cause of action for wrongful termination – constructive discharge arguing that Plaintiff’s resignation was not a constructive discharge.  

“An actual or constructive discharge in violation of fundamental public policy gives rise to a tort action in favor of the terminated employee. [Citations.]” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.) 

Constructive Discharge

“In an attempt to avoid liability [for wrongfully discharging an employee], an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted ‘end runs’ around wrongful discharge and other claims requiring employer-initiated terminations of employment. . . . Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation. [Citation.]” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–1245.) 

“Under the cases, an employee cannot simply “quit and sue,” claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Id. at 1246.) “[T]he cases are in agreement that the standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ [Citations.]” (Id. at 1248 (fn. omitted).) 

“In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Id. at 1251.) “The mere existence of illegal conduct in a workplace does not, without more, render employment conditions intolerable to a reasonable employee.” (Id.) Nor does a negative performance rating. (Id. at 1255.) “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” (Id. at 1247 (fn. omitted).) 

Defendant presents the following evidence: On Wednesday, January 25, 2017, Plaintiff and Defendant Corral went out after work, after which she alleges that Defendant Corral sexually assaulted her. (UMF 4.) Plaintiff did not go to work the following day, Thursday, January 26, 2017. (UMF 5.) On Friday, January 27, 2017, Plaintiff reported an alleged assault committed by Defendant Corral on January 25, 2017 to USC’s Office of Equity and Diversity (“OED”). (UMF 6.) Plaintiff admitted that she did not report to USC that Defendant Corral made her feel uncomfortable prior to the complaint on January 27, 2017. (UMF 7.) 

Defendant presents further evidence that USC placed Plaintiff on paid administrative leave effective January 30, 2017, while the OED investigated Plaintiff’s complaint. (UMF 8.) On March 16, 2017, while the OED investigation was ongoing, Defendant Corral resigned. (UMF 9.) On March 20, 2017, Uchenna Nwude from USC’s Human Resources informed Plaintiff through her prior attorney that USC wanted to bring Plaintiff back to work and offered to transfer her to a similar position at McKay’s restaurant. (UMF 10.) Nwude’s email stated that Plaintiff would perform the duties of her position as Food Service Supervisor and that she would be directly supervised by the manager at the McKay’s campus location. (UMF 11.) On April 10, 2017, Plaintiff resigned via an email from her attorney stating that “returning to work at USC after what happened would be too much for her and the reminder of Mr. Corral’s actions would be traumatic.” (UMF 12.) 

Defendant asserts that Plaintiff was not discharged; she resigned as a matter of choice. Defendant contends that Plaintiff was an at-will employee who exercised her right to terminate the employment relationship by tendering resignation on April 10, 2017. (UMF 12.) Defendant anticipates that Plaintiff will claim that the alleged assault constituted intolerable working conditions, however, at the time of Plaintiff’s resignation she had been on paid administrative leave for over two months and no intolerable working conditions existed during that time period. Defendant asserts that Defendant Corral resigned prior to Plaintiff’s resignation, so if Plaintiff had returned, there was no chance that she would ever have worked with Defendant Corral again. Defendant contends that there can be no constructive discharge if the allegedly intolerable working conditions were eliminated. 

Defendant argues that Plaintiff waited two months after the January 25, 2017 incident before resigning; Plaintiff did not return to work or to any intolerable “working conditions” after the January 25, 2017 incident; and Plaintiff was not coerced into resigning and, in fact, was invited back to work. Defendant asserts that Plaintiff’s resignation over two months after the January 25, 2017 incident gives rise to the inference that the incident was not, by itself, an unduly intolerable condition that forced her to resign. Defendant also contends that Plaintiff’s assertions about potential future working conditions as a reason for her resignation – “returning to work at USC after what happened would be too much for her and the reminder of Mr. Corral’s actions would be traumatic” – is mere speculation and cannot establish a claim of constructive discharge.  

Defendant further argues that there is no evidence of harsh or unfair performance evaluations, reduction in pay, or demotion. To the contrary, USC gave two months of paid leave to Plaintiff and asked her to return to work with a transfer to a different work location. Defendant contends that Plaintiff was never asked or encouraged to resign. Defendant argues that the law does not give an employee the right to quit and recover damages when the employer did not coerce resignation, particularly where the employer has done everything it can to resolve the alleged intolerable situation and provide for the employee’s continued employment.  

Finally, Defendant argues that it did not fail to correct the alleged intolerable conditions such that Plaintiff’s constructive discharge claim must fail as it did not intentionally create or knowingly permit intolerable working conditions. Defendant asserts that the evidence demonstrates that as soon as Plaintiff reported Defendant Corral’s harassment, USC swiftly addressed it by placing Plaintiff on paid administrative leave and investigating the incident. (UMF 8, 13.) Defendant contends that USC’s timely response to Plaintiff’s complaint and reasonable efforts to remedy the situation establishes that USC did not knowingly permit the alleged harassing conditions to exist. (Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 118 (affirming summary judgment for employer after prompt investigation, discipline, and efforts to separate plaintiff and the alleged wrongdoer).)

Defendant argues that instead of coercing Plaintiff to leave, USC’s actions here reflected the opposite: it actively took steps to improve Plaintiff’s conditions of employment upon her return. Defendant asserts that because there is no evidence of any intent to force Plaintiff to leave, and, in fact, substantial evidence of an intent to persuade her to stay, Plaintiff was not constructively discharged.

In opposition, Plaintiff argues that a single instance of sexual assault can constitute an intolerable condition for purposes of constructive discharge. Quoting Fisher v. San Pedro Hospital ((1989) 214 Cal.App.3d 590, 614), Plaintiff asserts that “[i]f [a plaintiff] can properly plead a cause of action for environmental sexual harassment, then she will have pled the predicate behavior for constructive discharge.” Plaintiff asserts that here, triable questions of fact exist as to whether Plaintiff was subject to environmental sexual harassment, and thus, whether there is a basis for constructive termination. Plaintiff contends that there is ample undisputed evidence that establishes that Plaintiff was sexually assaulted. 

Plaintiff argues that while Defendant argues that its actions sufficiently corrected the intolerable conditions such that Plaintiff’s resignation was not employer-coerced, there remain triable issues of material fact as to whether USC’s purported remedy nevertheless coerced Plaintiff into resigning.

Plaintiff presents evidence that at the time of her resignation, Plaintiff was reluctant to accept the position offered by USC because she did not know whether or not Defendant Corral still worked at USC and could potentially be present on campus at the same time she was. (Additional Material Fact (“AMF”) 64.)

Plaintiff asserts that there is evidence that USC never disclosed that Defendant Corral resigned and purportedly would never be rehired. Plaintiff contends that for a victim of sexual assault, it should be obvious that the prospect of again encountering the perpetrator would be unbearable.

As to Defendant’s argument that because Plaintiff waited two months to resign, her working conditions were not intolerable, Plaintiff argues that she was sexually assaulted in her own bedroom by her supervisor. (AMF 37.) Plaintiff asserts that in light of that, it was understandable for her to spend time coping with that fact and recovering from the trauma as opposed to immediately deciding whether to continue working at USC. 

Plaintiff presents evidence that before resigning, Plaintiff discussed her decision not to return to USC with her therapist and concluded that working anywhere at USC would just be too traumatic. (AMF 62.) At the time she made her decision, Plaintiff was having night terrors about going back to USC and believed that there was no way she would be able to return to the campus for any reason, let alone work. (AMF 63.) Plaintiff contends that it was thus clear that the two months between the incident and her resignation were a time of healing and introspection. Plaintiff argues that as the California Supreme Court cautioned, “[t]he length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint of a reasonable person. Neither logic nor precedent suggests it should always be dispositive. [Citation.]” (Turner, supra, 7 Cal.4th at 1254.)

Plaintiff finally argues that at the very least, triable issues of fact remain as to whether Plaintiff’s resignation was reasonable. (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1170–1171 (“This determination that the “reasonable employee” would have been compelled to quit because of Sullivan's conduct is quintessentially a jury function. [Citation.]”).)

In reply, Defendant argues that while Plaintiff devotes considerable time on the alleged sexual assault, the question on Defendant’s motion to summary adjudication is whether Plaintiff suffered intolerable working conditions at the time of her resignation of which Defendant had knowledge and failed to remedy, not whether a sexual assault off work premises constitutes an intolerable working condition. Defendant asserts that there are no triable issues as to whether USC knowingly permitted intolerable work conditions.

Defendant further asserts that there is no evidence that it tried to force Plaintiff to quit. Defendant contends that while Plaintiff argues that there is a triable issue whether USC coerced her resignation due to her potential concerns about working with Defendant Corral in the future and her alleged lack of knowledge about Defendant Corral’s employment status at the time of her resignation, Plaintiff’s argument ignores that USC took multiple remedial measures. Defendant argues that Plaintiff’s contention that she did not know whether Defendant Corral remained at USC does not a create a triable issue of material fact. Defendant asserts that Plaintiff puts forth no evidence that when she was offered the alternate position at McKay’s restaurant, she cared about the details of the job or USC’s efforts to separate Defendant Corral from his job. Defendant contends that Plaintiff’s response was simply that it was too “traumatic” to return. Defendant argues that, crucially, Plaintiff does not dispute her stated reasons for resigning: because returning to USC would have been “traumatic” and “too much for her.” (UMF 12, 17.) Defendant asserts that Plaintiff’s own Additional Material Facts Nos. 62 and 63 further provide that she “concluded that working anywhere at USC would just be too traumatic” and that “there was no way she was able to return to campus for any reason, let alone work.” Defendant contends that these facts confirm that whether or not Plaintiff knew that Defendant Corral no longer worked at USC, Plaintiff had no intention of returning because she had already decided to resign.

The Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to Defendant’s alleged intentional creation or knowing permission of intolerable working conditions and that it is entitled to judgment as a matter of law. While Plaintiff attempts to create a triable issue of material fact by asserting that she did not know at the time of her resignation whether or not Defendant Corral was still employed with USC, that fact goes towards whether a reasonable person in Plaintiff’s position would be compelled to resign. Here, the issue is whether or not Defendant either intentionally created or knowingly permitted intolerable working conditions at the time of Plaintiff’s resignation. Plaintiff has failed to create a triable issue of material fact as to whether Defendant intentionally created or knowingly permitted intolerable working conditions at the time of Plaintiff’s resignation.

The undisputed evidence establishes that on Friday, January 27, 2017, Plaintiff reported an alleged assault committed by Defendant Corral on January 25, 2017 to USC’s Office of Equity and Diversity (“OED”). (UMF 6.) Plaintiff admitted that she did not report to USC that Defendant Corral made her feel uncomfortable prior to her complaint on January 27, 2017. (UMF 7.) USC placed Plaintiff on paid administrative leave effective January 30, 2017, while the OED investigated Plaintiff’s complaint. (UMF 8.) On March 16, 2017, while the OED investigation was ongoing, Defendant Corral resigned. (UMF 9.) On March 20, 2017, Uchenna Nwude from USC’s Human Resources informed Plaintiff through her prior attorney that USC wanted to bring Plaintiff back to work and offered to transfer her to a similar position at McKay’s restaurant. (UMF 10.) Nwude’s email stated that Plaintiff would perform the duties of her position as Food Service Supervisor and that she would be directly supervised by the manager at the McKay’s campus location. (UMF 11.) 

This evidence, undisputed by Plaintiff, is sufficient to establish that Defendant did not “intentionally create” or “knowingly permit” intolerable working conditions to exist for Plaintiff at the time of her resignation, and Plaintiff does not argue otherwise. Instead, Plaintiff argues that her alleged sexual assault was sufficient to create intolerable working conditions. However, this argument does not address whether Defendant intentionally created or knowingly permitted such conditions to exist at the time of Plaintiff’s resignation. Regardless of whether or not Plaintiff purportedly knew of Defendant Corral’s separation from USC or whether or not Defendant actually informed Plaintiff of Defendant Corral’s separation, such knowledge relates only to whether Plaintiff’s resignation would have been reasonable; not whether or not Defendant intentionally created or knowingly permitted intolerable working conditions to exist at the time of Plaintiff’s resignation.  

“[A] standard [requiring an employer’s actual knowledge] serves to emphasize a central aspect of constructive discharge law—the resignation must be employer-caused and against the employee's will. Consistent with this principle, the employer must either deliberately create the intolerable working conditions that trigger the resignation or, at a minimum, must know about them and fail to remedy the situation in order to force the employee to resign.” (Turner, supra, 7 Cal.4th at 1249-1250.) Here, Plaintiff has failed to present evidence that Defendant intentionally created intolerable working conditions or that Defendant failed to remedy the situation and thereby forced Plaintiff to resign. Any evidence about the circumstances surrounding Plaintiff’s alleged sexual assault or her mental condition at the time of her resignation is irrelevant to the issue of whether Defendant USC intentionally created or failed to remedy intolerable working conditions at the time of Plaintiff’s resignation. Absent here is evidence of an “employer-caused” resignation. 

None of the evidence submitted by Plaintiff establishes that any of Defendant USC’s actions or omissions between the time Plaintiff informed Defendant of the sexual assault caused Plaintiff’s resignation. Rather, Plaintiff’s evidence describes Defendant Corral’s behavior following the alleged sexual assault and Plaintiff’s emotional and mental condition at that time, none of which is relevant to establishing that Defendant USC intentionally created or knowingly permitted intolerable working conditions to exist at the time of Plaintiff’s resignation. Because none of the evidence submitted by Plaintiff goes towards establishing Defendant’s intentional creation or knowing permission of intolerable working conditions, Plaintiff has failed to create a triable issue of material fact sufficient to defeat summary judgment. 

Based on the foregoing, Defendant’s motion for summary adjudication of the fourth cause of action is GRANTED on this ground.

Punitive Damages 

Civil Code section 3294, subdivision (a) authorizes punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment. However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (Am. Airlines v. Sheppard (2002) 96 Cal. App. 4th 1017, 1049 [internal citations omitted].)

Subsections (c)(1) and (2) of Section 3294 define “malice” as “conduct which is intended by defendant to cause injury to plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,” and “oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” “‘Despicable conduct’ is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

For corporate punitive damages liability, section 3294, subdivision (b), the plaintiff must show that a managing agent, officer, or director of the corporation authorized or ratified the wrongful conduct for which punitive damages are sought. (Civ. Code, § 3294, subd. (b); White v. Ultamar (1999) 21 Cal.4th 563, 572.) An individual must be in a corporate policymaking position in order to be considered a managing agent for the purposes of imposing punitive damages liability on the corporation. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1437.) A “managing agent” includes “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.” (White, supra, 21 Cal. 4th at p. 566.) While “supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents,” those “supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees.” (Id.)

“‘Ratification ... may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent. [Citations.] Such ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by redressing the harm done and punishing or discharging the employee. [Citations.]’ [Citations.]” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621.) 

Defendant additionally moves for summary adjudication of Plaintiff’s claim for punitive damages. Defendant argues that the undisputed evidence precludes Plaintiff from establishing punitive damages as Defendant Corral was not an officer, director, or managing agent of USC and USC did not have advance knowledge of or ratify Defendant Corral’s conduct. 

Defendant presents the following evidence: USC is a California nonprofit public benefit corporation. (UMF 18.) While Plaintiff and Defendant Corral were employed by USC, the only individuals vested with the authority to change USC policy were the President, the Provost and Senior Vice President for Academic Affairs, the Senior Vice President for Administration, or the Senior Vice President for Finance. (UMF 19.) Official University policies may also be established by resolution of the Board of Trustees. (UMF 20.) In the event of a conflict between a University policy and a school or department policy, the University policy will supersede. (UMF 21.)

Defendant presents further evidence that for the duration of Defendant Corral’s employment, he was not the President, the Provost and Senior Vice President for Academic Affairs, the Senior Vice President for Administration, or the Senior Vice President for Finance; nor did he sit on the Board of Trustees. (UMF 22.) At the time of the alleged incident, Defendant Corral was an Assistant Director in the Auxiliary Services Division. (UMF 23.) Moreover, Defendant Corral was not vested with the authority to change corporate policy; he was not even delegated with complete authority in his position—rather he reported to the Director, Auxiliary Services Division. (UMF 24-28.) Plaintiff testified that aside from Defendant Corral, no one else at USC harassed her, treated her inappropriately, or made statements or acted towards her in any way that she found offensive. (UMF 29.)

Plaintiff’s opposition concedes that she cannot recover punitive damages against USC. (Opposition at 1, fn 1.)

Given Plaintiff’s concession and the undisputed evidence submitted by Defendant, the Court finds that Defendant has carried its burden establishing that there are no triable issues of material fact as to Plaintiff’s claim for punitive damages and that it is entitled to judgment as a matter of law.

Based on the foregoing, Defendant’s motion for summary adjudication of Plaintiff’s claim for punitive damages is GRANTED.

Conclusion

Defendant’s motion for summary adjudication of the fourth cause of action for wrongful termination – constructive termination and Plaintiff’s claim for punitive damages is GRANTED.

Moving party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: BC691494    Hearing Date: January 27, 2020    Dept: 31

MOTION TO COMPLE COMPLIANCE WITH NON-PARTY DEPOSITION SUBPOENA IS CONTINUED.

Defendant University of Southern California’s Motion to Compel Compliance with Deposition Subpoena to Karen Spoor, Ph.D. is CONTINUED to Tuesday, February 25, 2020 at 8:30 am. 

California Rule of Court Rule 3.1346 provides that “[a] written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” The Proof of Service attached to Defendant’s motion indicates that nonparty deponent Spoor was served with the moving papers by mail and the moving papers fail to indicate that Mendoza agreed to accept service by mail. Pursuant to CRC Rule 3.1346, Defendant’s motion must be personally served on nonparty deponent Spoor. 

If Defendant intends to have its motion heard on the merits, Defendant must personally serve Spoor no later than the time prescribed by Code of Civil Procedure section 1005(b) and file a proof of service indicating the same pursuant to California Rules of Court Rule 3.1300(c).

Moving party to give notice.

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