On 02/22/2018 JOSEPH PHILIPSON filed a Labor - Wrongful Termination lawsuit against BOARD OF TRUSTEES OF CALIFORNIA. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is MARK C. KIM. The case status is Pending - Other Pending.
Pending - Other Pending
MARK C. KIM
DOES 1 THROUGH 50
BOARD OF TRUSTEES OF CALIFORNIA STATE
WALSH & ASSOCIATES ALICE CHUNG
WALSH & ASSOCIATES ALICE CHUNG
DAVID PHILIPSON LAW OFFICE OF
PHILIPSON DAVID JOSEPH
WALSH & ASSOCIATES (ALICE CHUNG)
WALSH DENNIS JOHN
9/20/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIA...)
9/19/2019: Declaration - DECLARATION DECLARATION OF ALICE CHUNG, ESQ., IN SUPPORT OF DEFENDANTS UNOPPOSED EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AT LEAST 90 DAYS AND TO CONTINUE ALL DEADLINES TO CO
9/19/2019: Ex Parte Application - EX PARTE APPLICATION DEFENDANTS UNOPPOSED EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AT LEAST 120 DAYS AND TO CONTINUE ALL DEADLINES TO CORRESPOND TO THE NEW TRIAL DAT
2/22/2018: Civil Case Cover Sheet
2/22/2018: Notice of Case Assignment - Unlimited Civil Case
2/22/2018: Notice of Case Management Conference
2/22/2018: Order - ORDER TO SHOW CAUSE HEARING
3/5/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
4/6/2018: Legacy Document - LEGACY DOCUMENT TYPE: RTN OF SERVICE OF SUMMONS & COMPL
4/6/2018: Legacy Document - LEGACY DOCUMENT TYPE: RTN OF SERVICE OF SUMMONS & COMPL
6/1/2018: Legacy Document - LEGACY DOCUMENT TYPE: REQUEST FOR DISMISSAL-PARTIAL
6/1/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE
7/23/2018: Minute Order - MINUTE ORDER ENTERED: 2018-07-23 00:00:00
5/30/2019: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATES; [PROPOSED] ORDER
6/3/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)
Hearing07/13/2020 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Jury TrialRead MoreRead Less
Hearing07/08/2020 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Ex Parte Application (FOR AN ORDER TO CONTINUE TRIAL AT LEAST 120 DAYS AND TO CONTINUE ALL DEADLINES TO CORRESPOND TO THE NEW TRIAL DATE) - Held - Motion GrantedRead MoreRead Less
DocketMinute Order ( (Hearing on Ex Parte Application FOR AN ORDER TO CONTINUE TRIA...)); Filed by ClerkRead MoreRead Less
DocketEx Parte Application (DEFENDANTS? UNOPPOSED EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AT LEAST 120 DAYS AND TO CONTINUE ALL DEADLINES TO CORRESPOND TO THE NEW TRIAL DATE); Filed by Board of Trustees of California State University Erroneously Sued As BOARD OF TRUSTEES OF CALIFORNIA STATE (Defendant)Read MoreRead Less
DocketDeclaration (DECLARATION OF ALICE CHUNG, ESQ., IN SUPPORT OF DEFENDANTS? UNOPPOSED EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AT LEAST 90 DAYS AND TO CONTINUE ALL DEADLINES TO CORRESPOND TO THE NEW TRIAL DATE); Filed by Board of Trustees of California State University Erroneously Sued As BOARD OF TRUSTEES OF CALIFORNIA STATE (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
DocketRtn of Service of Summons & Compl; Filed by JOSEPH PHILIPSON (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department S27; Unknown Event TypeRead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketOrder (To Show Cause Hearing); Filed by JOSEPH PHILIPSON (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by JOSEPH PHILIPSON (Plaintiff)Read MoreRead Less
DocketSummons; Filed by JOSEPH PHILIPSON (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by JOSEPH PHILIPSON (Plaintiff)Read MoreRead Less
Case Number: NC061649 Hearing Date: September 16, 2020 Dept: S27
Plaintiff, Joseph Philipson filed this action against Defendants, Board of Trustees of California State University and Andy Hoang for employment discrimination and related claims. Plaintiff’s operative complaint is his original complaint, which he filed on 2/22/18. Plaintiff’s complaint alleges he applied for a job as a photographer with CSULB, and his job application mentioned he had attended a Christian college. During the interview, Plaintiff indicated he was not comfortable talking about his Christian education, as it was a long time ago and he was a different person now. Defendants hired Plaintiff for the position in May of 2015.
Defendant Hoang was Plaintiff’s “two-step supervisor.” During Plaintiff’s first few months with CSULB, Hoang routinely praised Plaintiff and his work. However, on 9/22/15, Plaintiff and Hoang rode back from a photo shoot with Hoang, and Hoang questioned him about his religious beliefs and about the bible college he had attended. Plaintiff stated that he was uncomfortable talking about the subject matter, but Hoang pushed him to do so. Plaintiff ultimately told Hoang he is now an atheist. Hoang continued to press Plaintiff about the issue, and ultimately told Plaintiff he was “just bitter” and needed to find a church he could belong in. Plaintiff felt Hoang was trying to pressure him to go to church, and Plaintiff indicated he did not want to talk about the subject matter anymore.
Thereafter, Plaintiff’s relationship with Hoang changed. Hoang began criticizing Plaintiff and yelling at him in front of other staff. Hoang started scheduling Plaintiff for unreasonable durations, then criticizing Plaintiff if he could not make all of the assignments. Hoang assigned Plaintiff to substantial overtime, but did not pay him for the overtime.
On 11/23/15, Plaintiff had his six-month review. The review should have been performed by his immediate supervisor, Michael Sullivan, who performed his three-month review. Instead, Hoang performed the review. Hoang attacked Plaintiff’s character during the review, but Plaintiff ultimately received a favorable review from Sullivan.
On 12/08/15, Hoang required his staff to work at Precious Lamb, which is a religious preschool. Plaintiff expressed a desire not to donate his time to help a religious based organization. Hoang required all employees to work at the facility. Plaintiff did so.
Thereafter, Hoang suggested Plaintiff have monthly performance reviews. Plaintiff believes this did not happen with any other employees. Hoang began criticizing Plaintiff about his personality and character, but not about his actual work. Plaintiff asked to have a union representative at the meetings, and Hoang refused the request.
On 2/19/16, Defendants fired Plaintiff. Hoang told Plaintiff he was not a good fit and gave him his last paycheck.
Plaintiff’s complaint includes causes of action for:
1. Disparate Treatment – Discrimination Based on Religion (CSULB);
2. Wrongful Discharge in Violation of Public Policy (CSULB);
3. Hostile Work Environment – Harassment Based on Religion (CSULB and Hoang);
4. Hostile Work Environment – Harassment in Violation of Public Policy (CSULB and Hoang);
5. Failure to Pay Overtime Compensation (CSULB);
6. Statutory Penalties (CSULB).
Plaintiff has since dismissed his second and fourth causes of action, leaving the first, third, fifth, and sixth causes of action at issue between the parties.
Defendants move for summary judgment on the complaint. In the alternative, they move for summary adjudication of each cause of action remaining in the complaint. They argue:
Plaintiff cannot establish a prima facie case of discrimination;
Defendant has articulated legitimate, non-discriminatory reasons for its actions;
Plaintiff cannot show the legitimate, non-discriminatory reasons are mere pretext;
Plaintiff cannot show harassment due to a claimed protected class;
Plaintiff cannot show objectively severe or pervasive treatment;
Defendant is exempt from claims for failure to pay overtime compensation;
Plaintiff cannot establish a prima facie case for failure to pay overtime;
Defendant is exempt from statutory penalties;
Plaintiff cannot establish a prima facie case for statutory penalties.
Plaintiff opposes the motion, arguing:
Plaintiff can show a prima facie case for discrimination;
Plaintiff can show Defendant’s stated reasons for his termination were merely pretextual;
Plaintiff has raised triable issues of material fact concerning harassment;
Plaintiff is entitled to overtime pay under the parties’ collective bargaining agreement.
Defendants filed a 152-page Compendium of Exhibits with their moving papers. Defendants did not meaningfully tab this Compendium for use on eCourt. They tabbed only the first and second exhibits, but not the 3rd through 15th exhibits. This rendered review of the exhibits extremely difficult for the Court. The Court asks for proper virtual tabs in the future in connection with this and other actions.
Law Governing First Cause of Action, Wrongful Discrimination Based on Religion
Special rules govern allocation of the burden of proof on motions for summary judgment in wrongful termination and employment discrimination cases, under both federal and state law. State courts follow the approach taken by federal courts in these cases. Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 233. These special rules are intended to sharpen the inquiry into the elusive factual question of intentional discrimination. The summary judgment procedure “provides a particularly suitable means to test the sufficiency of … the defendant's nondiscriminatory motives for the employment decision.” Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.
But “many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper”; such cases are “rarely appropriate for disposition on summary judgment.” Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.
Because direct evidence of discrimination is seldom available, courts use a system of shifting burdens as an aid to the presentation and resolution of such cases both at trial and on a motion for summary judgment. Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 354-355. At trial, the initial burden is on the employee to establish a prima facie case of discrimination. (Not much is required, however; circumstantial evidence creating an inference of discrimination is sufficient.) Id. at 354-355.
When the employer seeks summary judgment, however, the initial burden rests with the employer to show that no unlawful discrimination occurred. CCP §437c(p)(2); see Id. at 354-355; see also Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926. To satisfy its initial burden, the moving party employer must either undermine an element of the plaintiff's prima facie case by affirmatively negating it or showing the plaintiff cannot prove it, or must provide a legitimate nondiscriminatory reason for the adverse employment action; McGrory v. Applied Signal Tech., Inc. (2013) 212 Cal.App.4th 1510, 1523.
First, the employer (moving party) must carry the burden of showing the employee's action has no merit (§ 437c(p)(2)). It may do so by evidence either:
negating an essential element of the employee's claim (difficult to do, because prima facie case of discrimination is so easy to establish); or
showing some legitimate, nondiscriminatory reason for the action taken against the employee. Caldwell, supra, at 202-203.
If the employer meets this initial burden, to avoid summary judgment the employee must produce “substantial responsive evidence that the employer's showing was untrue or pretextual,” thereby raising at least an inference of discrimination. Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005. A plaintiff's “suspicions of improper motives … primarily based on conjecture and speculation” are clearly not sufficient to raise a triable issue of fact to withstand summary judgment. Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564. Evidence showing facts inconsistent with the employer's claimed reasons tends to prove the employer's discriminatory intent. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735. “Pretext” does not require proof that discrimination was the only reason for the employer's action. When there are mixed motives for the employer's action, it is enough that discriminatory intent was a substantial motivating factor in the employer's decision to take the adverse action. Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.
An employee may also avoid summary judgment by attacking the credibility of the employer's declarations; i.e., by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence” and hence infer discriminatory intent. Hersant, supra, at 1005. However, though “disbelief of an Employer's stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, … it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one.” McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532.
Alternatively, the defendant employer may proceed directly to provide evidence that its action was taken for a legitimate, nondiscriminatory purpose. The burden is then on the plaintiff employee to rebut with evidence raising an inference that intentional discrimination occurred. Summary judgment for the employer should be granted where, “given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” Guz, supra at 362.
Defendant argues it is entitled to judgment as a matter of law on the first cause of action for wrongful discrimination because Plaintiff cannot prove a prima facie case of discrimination, Defendant had a legitimate, non-discriminatory reason to terminate Plaintiff’s employment, and Plaintiff cannot show Defendant’s legitimate, non-discriminatory reason for termination was mere pretext.
Prima Facie Case
Pursuant to Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610, a prima facie case is made when a reasonable inference that religious preference played a substantial factor in a negative employment decision can be shown. In this case, Plaintiff has shown that he had a positive performance review, that he had a discussion about his religious beliefs with Hoang, that Hoang’s attitude toward him changed thereafter, and that he was ultimately terminated. This is sufficient to meet the low bar of establishing a “prima facie case” of religious discrimination.
Legitimate, Non-Discriminatory Reason for Termination
Defendant next argues that it can show a legitimate, non-discriminatory reason for terminating Plaintiff’s employment. Defendant provides evidence that Plaintiff missed two events, was late to an event, failed to supervise an assistant, leading to the assistant damaging equipment, used unprofessional tone in response to e-mails, and caused concerns to arise about Plaintiff by other members of CUSLB senior staff. See separate statement of undisputed facts, facts 23-63. Defendant met its moving burden to show Plaintiff was dismissed for legitimate, non-discriminatory reasons.
Because Defendant met its initial burden to show it dismissed Plaintiff for legitimate, non-discriminatory reasons, the burden shifts to Plaintiff to show these reasons were merely pretextual. Plaintiff attempts to make this showing by (a) negating Defendant’s evidence concerning the performance deficiencies, discussed above, and (b) providing additional evidence concerning Hoang’s discriminatory intent toward him.
Missed Inaugural Gala
Defendant’s first stated reason for terminating Plaintiff is Plaintiff’s failure to attend a 10/03/15 inaugural gala. Defendant provides a series of e-mails between the parties dated 9/28 through 9/30/15, as well as Plaintiff’s deposition testimony and the Declarations of Sullivan and Hoang concerning this issue.
Exhibit 7 to the moving Compendium of Exhibits is the e-mail exchange between Plaintiff and Hoang/Sullivan between 9/28 and 9/30/15. The first e-mail is from someone named Michele Roberge to Plaintiff, and it states that there will be a President’s Gala on Saturday and she wants to have “one of your wonderful photographers present to capture shots of the event.” She then states the times of the events. Plaintiff wrote back later the same day, stating that “our photographer will be there, however, he will only have time to capture images of the performance.” Plaintiff then asks for details concerning that time. Roberge writes back, stating that she doesn’t need images of the performance, but would like to have “Joe” (Plaintiff) capture the look of the event, which is between 5:30 and 8:00. On 9/30/15 at 11:03 a.m., Plaintiff writes back, “I’ll be there at (sic) 5:30, and I’ll shoot for 30-60 min. I have a friend visiting me from Chicago and I don’t want to spend 2-3 hours shooting a reception. Is that cool with you?” Hoang (who was CC’d on the e-mails) writes back a half an hour later and states, “I’m good with that. Thanks.”
Defendant also submits Plaintiff’s deposition testimony at pages 105 and 136 in support of this argument. The highlighted portion of page 105 merely indicates that Plaintiff was not aware that the President’s Gala was a signature campus event. Page 136 includes testimony that Plaintiff does not know what he said or did not say to Sullivan and/or Hoang about whether he would photograph the event.
In opposition to the motion, Plaintiff submits his own declaration, ¶34. ¶34 relates to another event, not to the Gala. It appears Plaintiff intended to refer to ¶33. At ¶33, Plaintiff declares that Hoang asked him on 10/03/15, if he could photograph the event, and he responded that he had a good friend visiting from Chicago. He declares that Hoang sent a follow-up email where Plaintiff “loosely agreed” to come for 30-60 minutes, but Plaintiff subsequently told Hoang it was “highly unlikely” he would be able to attend, as he and his friend had plans in Los Angeles for the evening; in the weekly meeting, Plaintiff declares he told Hoang to have a student assistant cover the event, and Hoang then berated him in front of the entire staff.
Defendant also submits Plaintiff’s deposition testimony, at page 114, wherein Plaintiff admits that he did not text Hoang to indicate he was not showing up at the event; it is not clear, however, how this fits into the timeline, if Plaintiff had already told Hoang he was not going to show up, etc. Hoang and Sullivan declare that Plaintiff told them he forgot to go to the event and lost track of time, but this is contradicted by Plaintiff’s testimony that he told Hoang in advance that he would not make it to the event. Defendant also submits Plaintiff’s testimony, at pages 107-108 and 113 of his deposition, wherein he admitted that it was likely not a good choice to refuse to show up for an event to which he had been assigned because he had a friend in from out of town.
Missed Employee of the Month Ceremony
On 12/02/15, there was an employee of the month ceremony that Plaintiff was to photograph. At page 134 of Plaintiff’s deposition, it appears the deposing attorney is reading from some sort of notes. He reads, “Employee of the Month, December 2nd: ‘Joe entered the event into his calendar with the wrong time, so he missed the shoot.’” Counsel asks Plaintiff if that is true, and Plaintiff responds that it “might” be true. Defendant provides Sullivan’s testimony that he noticed the discrepancy in time prior to the event and told Plaintiff about the problem; Plaintiff, in opposition, provides his own declaration, which states that Sullivan did not tell him about the wrong date on the calendar until AFTER the event. Plaintiff ultimately missed the event.
Tardiness at Photo Shoot of Coach Monsoon
Plaintiff was assigned to shoot the men’s basketball coach, Coach Monsoon, on 10/13/15. Defendant provides evidence that Plaintiff was late to the shoot. Plaintiff, in opposition to the motion, provides evidence (his own declaration) showing that Hoang had agreed to meet him and help him load up for the shoot, but did not end up coming to help him load, such that he ended up loading himself, which made him late.
Defendant also provides evidence that Plaintiff later admitted he needed to give himself more time to prepare for shoots; Plaintiff contends he made these admissions because Sullivan told him he needed to apologize for the late shoot and to be contrite toward Hoang.
Plaintiff supervised a student assistant who dropped and damaged camera equipment; repairs cost $600. Defendant contends Plaintiff’s email, wherein he stated, “I can’t exactly train people not to drop things. Mike and I had as much to do with this as you did,” was unprofessional. Plaintiff maintains that he cannot teach people not to drop things, and also provides his own declaration, wherein he states that he told Sullivan and Hoang more than once that they should insure the equipment.
Ukleja 10th Anniversary Event
Plaintiff was assigned to photograph the Ukleja 10th Anniversary Event, which was a College of Business Administration event. Defendant provides evidence that Plaintiff asked questions about candid photos and nametags, and also inquired about his meal break; the Court finds neither of these lines of questioning to be problematic from an objective standpoint. Defendant also provides evidence that the event organizers asked for photos of the event two weeks after the event, as they had not been sent. Plaintiff provides his own declaration that the managing director for the event had told him she was going on vacation for two weeks and that there was no rush to provide the photos. Defendant also provides evidence that there were problems with providing all of the photos from the event; Plaintiff declares these problems were due to Defendant’s failure to pay for a full subscription to dropbox, such that not all the photos would fit in the university account, and declares he immediately brought over a CD of the photos once the parties understood the problem.
Defendant provides evidence that, after the photo shoot, Michael Solt, the Dean of the College of Business Administration, requested a meeting with Hoang to discuss Plaintiff’s performance at the event. Plaintiff, however, provides evidence that these concerns were ultimately resolved and retracted by Solt.
Plaintiff had two performance evaluations with Defendant. The first was on 7/31/15, approximately three months after Defendant hired him. Plaintiff received “Commendable” or “Satisfactory” in all categories on this review. See Plaintiff’s Exhibit 4 to moving papers.
As noted above, the parties’ conversation about religion occurred on 9/22/15. All of the missed events, tardy events, and other problems detailed above occurred after 9/22/15.
On 11/23/15, Sullivan and Hoang conducted a second performance evaluation. The evaluation is attached as Exhibit 12 to the moving papers. Plaintiff received satisfactory and commendable ratings on most of the categories. The Court will not dwell on those categories here. Plaintiff received a “needs improvement” on “communication skills,” with commentary that Plaintiff has struggled with tone in his emails and his attention to detail can be lacking. On Section III of the evaluation, part C, the evaluation notes that the job with the CBA went wrong from start to end, and also notes that Plaintiff did not show up to a smaller job assignment and did not communicate that when it became apparent he was not going to show up (this appears to be the employee of the month shoot, as the Gala was clearly not a “smaller job assignment”). There is no mention in the evaluation of the missed Gala or of the problem with the assistant dropping the equipment; notably, the review gives Plaintiff a “commendable” rating under supervisory/lead responsibilities, and indicates Plaintiff does a good job mentoring student photographers.
Plaintiff’s Additional Evidence
In addition to the above, Plaintiff provides the Declaration of Sharon Hong in support of his opposition to the motion. Hong declares that she worked for CSULB during Plaintiff’s time as an employee there, and she personally observed Plaintiff and Hoang. She declares that Hoang, at first, was effusive in his praise of Plaintiff. However, after the 9/22/15 car ride where religion was discussed, Hoang stopped by her office and mentioned that Plaintiff was an atheist, stating, “can you believe that?” Hoang told Hong that he told Plaintiff to just have faith. At some point, Hoang became critical of Hong’s work; everyone was shocked when Plaintiff was fired.
Plaintiff also provides the Declaration of Jennifer Moran, a certified union steward at CSULB. Moran was Plaintiff’s representative during the evaluations and ultimate termination. Moran testifies that, after the 9/22/15 car ride and religious conversation, and after Plaintiff came to Moran about his concerns, Hoang’s entire attitude toward Plaintiff changed. Moran declares Hoang attempted to stop Plaintiff from having union representation at the meetings in violation of the parties’ collective bargaining agreement. She also corroborates various details about Plaintiff’s performance reviews and Plaintiff’s explanations, detailed above, concerning the purported employment deficiencies. Moran goes on to detail Hoang’s history of discussing his religious beliefs with his staff. Finally, Moran states that, on 1/22/16, she represented Plaintiff in a meeting with Sullivan, who told her Plaintiff was performing very well and there was no need to improve on any area in order to maintain his job. She details praise Plaintiff received from other senior personnel at CSULB, and ultimately concludes that she believes the stated reasons for termination were pure pretext.
Plaintiff also supports his opposition with the Declaration of Janet Romain. Romain was a graphics designer for CSULB during Plaintiff’s employment, and was in Plaintiff’s department. She declares Hoang praised Plaintiff repeatedly at the beginning of his employment, holding him up as a model employee. However, starting around October of 2015, Hoang’s tone toward Plaintiff changed, and Hoang began barraging Plaintiff with complaints about his work. She declares Hoang was manufacturing problems with Plaintiff’s work that did not exist. She also declares that something similar happened to her, as she had an issue with Hoang, spoke to the union, and then Hoang began treating her differently and very badly.
Plaintiff also references various exhibits in connection with his opposition. Plaintiff’s notice of opposition indicates that a compendium of exhibits was filed with the opposition papers. The Court does not, in its file, have a compendium of exhibits filed by Plaintiff. The Court has therefore not considered any of the purported evidence set forth in the exhibits.
Defendant has clearly set forth a legitimate, non-discriminatory reason for terminating Plaintiff’s employment. Defendant set forth two missed events, one tardy event, and problems with a CBA event. Plaintiff, however, had provided explanations for each of these reasons. Plaintiff also provided evidence that the only problems detailed in his performance review, which occurred AFTER these purported problems, were the missed employee of the month event and the CBA event communication problems. Plaintiff provided evidence that, despite those mentions in the review, the review was overall positive, and rated him satisfactory in most regards and commendable in others.
When the above evidence in taken in connection with the statements of Moran, Hong, and Romain, as well as Plaintiff himself, concerning how Hoang’s attitude toward Plaintiff changed after the 9/22/15 conversation about religion, there are triable issues of material fact concerning whether Plaintiff’s religion “played a substantial role” in the termination decision. This is especially true in light of the apparent breach of protocol, testified to by Moran, pursuant to which Hoang began overtaking oversight of Plaintiff’s employment instead of allowing Sullivan, Plaintiff’s direct supervisor, to continue to maintain such oversight.
The motion for summary adjudication of the first cause of action for unlawful religious discrimination is denied.
Law Governing Harassment Based on Religion
Plaintiff’s second cause of action is for religious harassment, and is asserted against CSULB and Hoang personally. Although rarely encountered in practice (and even more rarely in published decisions), claims of harassment based upon religion involve the same principles established in connection with sexual and racial harassment under Title VII and the FEHA. This type of claim “presents a very straightforward question no different in kind from that presented in the familiar cases of race, sex, and age discrimination.” Venters v. City of Delphi (7th Cir. 1997) 123 F.3d 956, 972.
An employee may be able to establish a hostile work environment based on her employer's (or supervisor's) attempts to force her to follow the employer's religious beliefs. Id. at 973. In Venters, a supervisor made it clear to an employee that he was a born-again Christian who believed that he had been sent by God to save as many people from damnation as he could. In his conversations with the employee, all of which occurred at work while the employee was on duty, he continuously interjected religious observations and quotations from the Bible, and spoke to the employee about her salvation in a manner that led her to conclude that he considered her immoral. He ultimately told her that she had a choice to follow God's way or Satan's way, and that she would not continue working for him if she chose the latter. A jury could reasonably find the work environment was hostile and abusive. Id. at 975.
Analysis re: Harassment
In this case, Defendants argue Hoang (a) having a brief conversation with Plaintiff about his religious education during his interview, (b) having a more detailed conversation with Plaintiff about religion in the car, and (c) requiring Plaintiff to “volunteer” at an event at a Christian church is not sufficiently severe and pervasive to constitute religious harassment.
Plaintiff, however, correctly notes that the above must be taken in context with Hoang’s complete change of attitude and behavior toward Plaintiff after the 9/22/15 discussion. Plaintiff provides evidence that Hoang began berating and yelling at him in front of others after this conversation. A reasonable trier of fact could conclude that the change of attitude resulted from the conversation and facts learned during the conversation, and needs to be considered in connection with the actual conversations themselves in determining whether or not harassment occurred. The Court finds this issue is not appropriately determined by way of summary adjudication, and the motion for summary adjudication is denied.
Overtime Wage Claims
Defendant contends it cannot be held liable on Plaintiff’s overtime wage claims because, as a public employee, it is exempt from the Labor Code statutes upon which Plaintiff is suing. Defendant relies on Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, 736 to support its contention.
Johnson held that Labor Code §510 does not apply to the public sector. Because Plaintiff is suing for violations of Labor Code §510, Defendant met its initial burden to show it is entitled to judgment as a matter of law on the claim.
Plaintiff, in opposition to the motion, contends the parties’ Collective Bargaining Agreement supersedes the Labor Code concerning overtime pay for non-exempt employees, and the parties’ CBA provided for overtime pay to Plaintiff. Plaintiff’s fifth and sixth causes of action are specifically pled as violations of the Labor Code. They are not pled as violations of the parties’ Collective Bargaining Agreement. Plaintiff failed to show that CSULB, as a public employee, is not exempt from the violations pled in the complaint. While CSULB may potentially be liable on some other theory, Plaintiff does not meaningfully detail this in his opposition, and does not seek leave to amend his complaint to state a claim per the parties’ CBA. The motion for summary adjudication of the fifth and sixth causes of action is therefore granted.
Defendant’s motion for summary judgment is denied. Defendant’s motion for summary adjudication of the first and third causes of action is denied. Defendant’s motion for summary adjudication of the fifth and sixth causes of action is granted.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
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