This case was last updated from Los Angeles County Superior Courts on 10/17/2020 at 06:00:36 (UTC).

ROBYN GARCIA VS DUARTE UNIFIED SCHOOL DISTRICT

Case Summary

On 04/05/2018 ROBYN GARCIA filed a Labor - Other Labor lawsuit against DUARTE UNIFIED SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is PATRICIA D. NIETO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1155

  • Filing Date:

    04/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

PATRICIA D. NIETO

 

Party Details

Plaintiff and Petitioner

GARCIA ROBYN

Defendants and Respondents

DOES 1-10

DUARTE UNIFIED SCHOOL DISTRICT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

YOFFE ALEXANDER

Defendant and Respondent Attorneys

NANCY P. DOUMANIAN ESQ

DOUMANIAN NANCY PRAPION

Attorney at Doumanian & Associates

418 N Fair Oaks Ave Ste 202

Pasadena, CA 91103

DOUMANIAN NANCY P

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/14/2020

5/14/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/14/2020

Minute Order - MINUTE ORDER (COURT ORDER)

3/30/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/30/2020

3/30/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/30/2020

Order - RULING RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

1/29/2020: Order - RULING RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

1/29/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

1/15/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Declaration - DECLARATION OF DANIEL QUISENBERRY, ESQ. IN SUPPORT OF PLAINTIFF ROBYN GARCIAS OPPOSITION TO DEFENDANT DUARTE UNIFIED SCHOOL DISTRICTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDIC

1/2/2020: Declaration - DECLARATION OF DANIEL QUISENBERRY, ESQ. IN SUPPORT OF PLAINTIFF ROBYN GARCIAS OPPOSITION TO DEFENDANT DUARTE UNIFIED SCHOOL DISTRICTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDIC

Notice of Ruling

12/10/2019: Notice of Ruling

Response - RESPONSE DEFENDANT DUARTE UNIFIED SCHOOL DISTRICT RESPONSE TO PLAINTIFFS ADDITIONAL SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF HER OPPOSITION TO MOTION FOR SUMMARY JUDGM

10/23/2019: Response - RESPONSE DEFENDANT DUARTE UNIFIED SCHOOL DISTRICT RESPONSE TO PLAINTIFFS ADDITIONAL SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF HER OPPOSITION TO MOTION FOR SUMMARY JUDGM

Declaration - DECLARATION OF PLAINTIFF ROBYN GARCIA SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES

10/11/2019: Declaration - DECLARATION OF PLAINTIFF ROBYN GARCIA SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES

Notice of Change of Address or Other Contact Information

10/1/2019: Notice of Change of Address or Other Contact Information

Notice - NOTICE OF ERRATA RE DEFENDANT DUARTE UNIFIED SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF'S COMPLAINT

8/30/2019: Notice - NOTICE OF ERRATA RE DEFENDANT DUARTE UNIFIED SCHOOL DISTRICT'S MOTION FOR SUMMARY JUDGEMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO PLAINTIFF'S COMPLAINT

Minute Order - (Non-Appearance Case Review)

10/10/2018: Minute Order - (Non-Appearance Case Review)

Minute Order -

9/12/2018: Minute Order -

CASE MANAGEMENT STATEMENT -

8/28/2018: CASE MANAGEMENT STATEMENT -

CASE MANAGEMENT STATEMENT

8/29/2018: CASE MANAGEMENT STATEMENT

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

6/21/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

CIVIL DEPOSIT -

7/11/2018: CIVIL DEPOSIT -

41 More Documents Available

 

Docket Entries

  • 09/13/2021
  • Hearing09/13/2021 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 09/02/2021
  • Hearing09/02/2021 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 06/23/2021
  • Hearing06/23/2021 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 08/17/2020
  • Docketat 09:30 AM in Department 24; Trial Setting Conference - Held

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  • 08/17/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 06/18/2020
  • Docketat 08:30 AM in Department 24; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 06/02/2020
  • Docketat 10:00 AM in Department 24; Jury Trial - Not Held - Advanced and Vacated

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  • 05/21/2020
  • Docketat 09:30 AM in Department 24; Final Status Conference - Not Held - Advanced and Vacated

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  • 05/14/2020
  • Docketat 08:30 AM in Department 24; Court Order

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  • 05/14/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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68 More Docket Entries
  • 06/11/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/11/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/04/2018
  • DocketCIVIL DEPOSIT

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  • 06/04/2018
  • DocketDEFENDANT DUARTE UNIFIED SCHOOL DISTRICT ANSWER TO COMPLAINT

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  • 06/04/2018
  • DocketReceipt; Filed by Duarte Unified School District (Defendant)

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  • 04/23/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Robyn Garcia (Plaintiff)

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  • 04/23/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 04/05/2018
  • DocketComplaint; Filed by Robyn Garcia (Plaintiff)

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  • 04/05/2018
  • DocketPLAINTIFF GARCIA'S COMPLAINT FOR DAMAGES

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  • 04/05/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC701155    Hearing Date: January 15, 2020    Dept: 24

Defendant Duarte Unified School District’s motion for summary judgment is DENIED. Defendant’s alternative motion for summary adjudication is DENIED.

On April 5, 2018, Plaintiff Robyn Garcia (“Plaintiff” or “Gracia”) filed the instant employment discrimination action against her former Defendant Duarte Unified School District (“Defendant” or “DUSD”) The Complaint arises out of allegations that the Principal of Duarte High School Mark Sims (“Sims”) removed Plaintiff from her position as Athletic Director/Activities Director and replaced her with younger, less experienced and credentialed individuals. She alleges that this was done on the basis of her gender, age, and familial status. She alleges that she was eventually pushed into a less prestigious teaching position. The Complaint alleges six causes of action for: 1) gender discrimination; 2) failure to prevent discrimination - gender; 3) retaliation; 4) hostile work environment – gender; 5) intentional infliction of emotional distress; and 6) wrongful termination.

On August 14, 2019, Defendant moved for summary judgment or in the alternative, summary adjudication of each claim. On October 11, 2019, Plaintiff filed an opposition. On October 23, 2019, Defendant submitted a reply. The Court continued the motion to allow Plaintiff to depose Allen Mucerino. On January 2, 2020, Plaintiff filed a supplemental opposition. On January 9, 2020, Defendant filed a supplemental reply.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “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.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Evidentiary Rulings

Plaintiff’s objections to Crosby Decl. nos. 1-7 are OVERRULED. These objections go to the weight of the evidence, and not admissibility. The relevant portions of the CAP are not hearsay.

Defendant’s objections to the Garcia Decl. nos. 5 and 10 are SUSTAINED as to hearsay regarding statements by people other than Sims. Otherwise, objections nos. 3-11 are OVERRULED. The remainder are immaterial. (CCP § 437c(q).)

Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452(d).)

Issue Nos. 1, 2 and 7: Discrimination and Legitimate Business Reasons

For employment discrimination claims, California courts utilize the three-pronged burden shifting analysis first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under the first prong of McDonnell Douglas, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that “(1) he [or she] was a member of a protected class; (2) that he [or she] was qualified for the position he [or she] sought or was performing competently in the position he or she held; (3) that he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive.” (Id. at 355.) Once plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. (Id. at 355-356.)

As our Supreme Court explained in Guz, “‘legitimate’ reasons [citation]… are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. [Citations.]” (Guz, supra, 24 Cal.4th at 358 [footnote omitted].) “While the objective soundness of an employer’s proffered reasons supports their credibility... the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Ibid.) The employer’s “reasons need not necessarily have been wise or correct.” (Ibid.) In other words, as long as the employer honestly believed in the facially unrelated reason, it is irrelevant whether the employer’s reason is trivial (see Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1157 [professor’s tenure denied based on “academic politics”]), or even completely untrue (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [driver accused of falsifying timecard]).

If the employer meets its burden, the burden then shifts to the employee to show that the defendant’s legitimate reason is merely pretext. (Guz, supra, 24 Cal.4th at 356.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) “Pretext may [also] be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or the proffered reason was insufficient to motivate discharge.” (Ibid.) A plaintiff cannot rely on generalizations; she must produce evidence of facts that either directly show a discriminatory motive, or show the defendant's explanation of his termination is not credible. (Warren, III v. City of Carlsbad (9th Cir. 1995) 58 F.3d 439, 443.)

In her pleadings, Plaintiff raises three bases for discrimination: 1) gender; 2) age; and 3) familial status. In general, Defendant argues that there is no causal connection between her protected status and the removal of her positions as Athletics Director and Activities Director was for a non-discriminatory reason. Defendant insists that her positions were eliminated as a part of the Competitive Advantage Plan (“CAP” or the “plan”), which was a part of the School District’s efforts to bring up attendance and avoid dis-accreditation by the Western Associations of Schools and Colleges (“WASC”).

The Court must initially point out that Defendant fails to present evidence that contradicts any of the alleged prima facie elements. Defendant does raise one point, that another female, Jennifer Garcia, was hired to take on one of the two titles Plaintiff held. In other words, that Plaintiff was replaced by a woman, and thus could not have been discriminated against on that basis. However, this fact is not in the Separate Statement. Moreover, this would not preclude the other alleged bases of discrimination based on age and familial status. Thus, the Court would not find that Defendant met its burden as to any prima facie element. The principal thrust of Defendant’s argument is their non-discriminatory reasons for terminating Plaintiff: declining enrollment and subsequent implementation of the CAP to bolster attendance and maintain accreditation, which eliminated her positions.

As to Defendant’s initial burden, Defendant presents evidence that shows Plaintiff’s positions were eliminated due the CAP rather than any discriminatory motive. The evidence shows that Duarte High School was the only high school within the School District. (SSUF 5) In the relevant time frame, enrollment at the high school declined from 1200 to about 850 students. (Ibid.) The high school was on accreditation probation through the WASC and was at risk of losing accreditation. (SSUF 20.) Superintendent Allen Mucerino (“Mucerino”) was hired on July 1, 2015 in response to the declining enrollment; he spearheaded the CAP for the District. (SSUF 13.) In May 2016, the governing school board voted and approved the CAP as part of this districtwide reorganization. (SSUF 14.) The CAP is a “living” document that is updated annually and changed based on circumstances. (SSUF 19.) Further, the CAP was a five-year plan that resulted from various third-party reports and findings based on data collection processes administered by Claremont Graduate University’s evaluation center. (SSUF 15.) The school board voted upon and approved the plan. (SSUF 16.) The CAP, as implemented, eliminated the two director positions Plaintiff held. (SSUF 21, 23; see Doumanian Decl., Ex. D (“Sims Depo.”) at 64:18–65:9; Crosby Decl., ¶¶ 3-10, Ex. 1.) There was no discussion about a preferred age or gender for the new positions. (SSUF 24; Sims Depo., at 122-123.) Instead, this appears to be an objective decision, based on neutral reasoning.

This evidence adequately demonstrates that Plaintiff’s positions were not eliminated for discriminatory reasons, rather for legitimate business concerns which would preclude a finding of discrimination. Thus, the burden shifts to Plaintiff to demonstrate that the reasons proffered where pretextual.

Plaintiff argues that the above reasoning is not legitimate because there is no evidence that the reorganization referred to required or even suggested the removal of Plaintiff. Plaintiff notes that the WASC probation had nothing to do with the two areas Plaintiff was handling. (PMF 11; Sims depo at 34:22-37:2). This logic is faulty, as Defendant is not required to show this. Defendant is only required to show that their business decision was unrelated to Plaintiff’s protected class. This argument does not show that Defendant’s reasoning was incredible or pretextual. Plaintiff’s conjecture that it “doesn’t make sense” to eliminate the positions is inherently speculative and the precise type of argument rejected by courts. As noted by the above authority, while the soundness of an employer’s proffered reasons supports their credibility, the issue is simply whether the employer acted with a motive to discriminate illegally— reasons need not necessarily have been wise or correct. (Guz, supra, 24 Cal.4th at 358; Slatkin, supra, 88 Cal.App.4th at 1157; King, supra, 152 Cal.App.4th at 433.)

Simply because there were no affirmative problems connected between the athletics/activity departments and the school’s accreditation/probation prior to the CAP does not mean that Defendant’s reasoning for eliminating the positions was pretextual. Defendant submits evidence that this was done to promote a rise in attendance, and not necessarily to fix any then-present issues with the Athletics and Activities departments. While Plaintiff complains that this “does not make sense,” Plaintiff’s conjecture does not create a dispute of fact. Further, it does “make sense” that a school with declining enrollment would put more resources (i.e. create specialized positions for two people, rather than one person) into developing their athletics and activities departments to increase school attendance. The parties’ newly submitted evidence from the Mucerino deposition also confirms this. (Mucerino Am Session at 46:6-24; 82:1-20; 84:15-21; 85:6-13; 87:5-88:3; 98-99.)

Plaintiff argues that Sims played a significant role in the decision to remove Plaintiff’s position as a part of the CAP. Showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory in violation of the FEHA, even absent evidence that others in the process harbored such animus. (Cornell v. Berkeley Tennis Club (2018) 18 Cal.App.5th 908, 936-937 [citing DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551].) This legal principle has been colorfully referred to as the “cat's paw” doctrine. The DeJung court, approving the cat’s paw theory, noted that it apparently originated in Shager v. Upjohn Co. (7th Cir.1990) 913 F.2d 398.

In Shager, the decision to terminate the plaintiff's employment was made by a committee. The defendant employer sought summary judgment, arguing that the evidence showed that at most only one member of the committee, the plaintiff's supervisor, harbored any discriminatory animus. The employee countered that a trier of fact could reasonably infer that the committee's decision was tainted by the supervisor's participation. The Seventh Circuit agreed, reasoning that if the committee “acted as the conduit of [the supervisor]'s prejudice—his cat's paw—the innocence of its members would not spare the company from liability.” (Shager, supra, 913 F.2d at p. 406.)

(DeJung, supra, 169 Cal.App.4th at 551.)

The CAP was created by many people, including Sims. (Sims. Depo. at 33:17 - 37:2, 40:23-41:12.) Sims is listed as the Responsible Person for the content regarding high school athletics and activities, including the division of the Dean of Athletics and Dean of Activities. (Crosby Decl., Ex. 1, p. 18; Mucerino A.M. Depo at 48:2-20; 58:15-59:20; 60:2-7; 62:14-64:11.) Further, Plaintiff provides her own declaration demonstrating Sims’s animus towards her based on her gender, age and familial status. (Garcia Decl., ¶¶ 3-11.) Thus, Plaintiff’s evidence shows that Sims, a person with exhibited discriminatory animus, made the decision to include the elimination of Plaintiff’s positions in the CAP. This is sufficient to raise an inference of pretext under the cat’s paw theory and create a dispute of material fact as to whether Sims’s discriminatory animus towards Plaintiff influenced the decision to eliminate Plaintiff’s position as a part of the CAP. (See SSUMF 12, 13, 18, 21.) Defendant argues that while Sims provided input, this was not his decision. However, Defendant points to no evidence that Sims’s participation in this decision was insignificant. Defendant cites no contrary authority that aid it to this end.

Accordingly, Defendant’s motion for summary judgment is DENIED. Summary adjudication is DENIED as to issues nos. 1-2 and 7.

Issues No. 3: Retaliation

In order to establish a prima facie case of unlawful retaliation, a plaintiff must present substantial evidence that (1) she engaged in a protected activity; (2) the employer thereafter subjected him to an adverse employment action; and (3) there was a causal connection between the protected activity and the employer’s action. (Soukup v. Law Offices of Herbet Hafif (2006) 39 Cal.4th 260, 287-288; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) Claims of retaliatory termination will fail where the complainant “cannot demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment by [the employer].” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258.) A plaintiff cannot state a claim for retaliation because she did not engage in a protected activity under the FEHA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) FEHA's retaliation provision contains two types of protections: (1) an "opposition" clause protecting those who oppose practices unlawful under FEHA; and (2) a "participation" clause protecting those who participate in DFEH-related proceedings. (Id. at 1044.)

Plaintiff alleges in the Complaint that she was retaliated against when she reported to the School District “illegal activities of Principal Sims (including threatening to blackball other coaches if they did not step down, removing Plaintiff from her positions as Athletic Director and Activities Director for discriminatory reasons and in retaliation for her willingness to provide witness testimony, and in retaliation for Plaintiff’s complaining about Sims’ improper activities to personnel and the school board) and by cooperating in demoting and surreptitiously termination Plaintiff. (Compl., ¶ 78; see Garcia Decl., ¶¶ 6-8.)

Defendant submits the following evidence in connection with the retaliation issue. Sims was not involved in the interview or selection process for the Dean of Activities or the Dean of Athletics pursuant to the Superintendent’s reorganization. (SSUF 25.) Defendant further notes that Plaintiff later accepted a new position after the restructuring at Northview Intermediate School, and that Sims was not involved in these discussions. (SSUF 26.) After that school was closed, she was offered other positions until she decided to go work at another district. (SSUF 27-29.) The CAP eliminated her positions. (SSUF 30.) The plaintiff never returned to teach at the high school as she voluntarily left before the 2018-2019 school year started and accepted another position at Baldwin Park Unified School District – where she also worked as an Athletic Director but did not have to teach any classes. (SSUF 31.) When the plaintiff interviewed for her current job, she explained that it was due to declining enrollment, school closure and concerns about the future of the athletics program and did not mention any issues with Sims. (SSUF 32.)

With this evidence in hand, Defendant argues that Plaintiff did not report any protected activity and that the District had legitimate, non-discriminatory reasons for Plaintiff’s lay off. (Mot. at 11:20-23.) Defendant submits no evidence that Plaintiff did not participate in any protected activity. A review of Defendant’s cited evidence would not bring any reasonable person to that conclusion. The evidence makes no mention of any protected activity, or lack-thereof. The fact that Sims was not involved in the interview or selection of the new Deans has no bearing on whether Plaintiff’s positions were eliminated for any reason. Otherwise, Defendant’s arguments miss the point and are irrelevant to the retaliation claim. As discussed above, pretext is established for the proffered non-discriminatory reason. Moreover, even if the District had a non-discriminatory reason for Plaintiff’s lay-off, this would have no direct bearing as to whether the District had a retaliatory reason for the lay-off. Simply put, Defendant fails to meet its initial burden of production or persuasion.

Accordingly, Defendant’s motion is DENIED as to this issue.

Issue No. 4: Hostile Work Environment

Defendant notices this issue but provides no substantive discussion as to the claim. Defendant conflates the cause of action for hostile work environment with the other discrimination claims. FEHA prohibits sexual harassment of an employee as a form of discrimination. (Gov. Code, § 12940(j)(1).) Such a claim has distinct elements from the above-discussed discrimination claims. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1042–1043.) Defendant’s legitimate business decision argument has no bearing on whether Plaintiff suffered harassment. Thus, Defendant fails to meet its initial burden as to this issue.

Accordingly, Defendant’s motion is DENIED as to this issue.

Issue No. 5: Intentional Infliction of Emotional Distress

To prevail on her Intentional Infliction of Emotional Distress claim, a plaintiff must prove all of the following: (1) extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) she suffered severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress. (Hughes, supra, 46 Cal.4th at 1051.)

Defendant argues that Plaintiff cannot establish extreme and outrageous conduct. Defendant also argues that Plaintiff’s emotional distress is not severe. No relevant evidence is submitted to support these points. For example, there is no stated fact regarding outrageous conduct, or Plaintiff’s emotional distress. The only somewhat relevant evidence Defendant cites in support of these arguments is that plaintiff and Sims worked together for two school years at Duarte High School. (SSUF 3; see Mot. at 12-14.) Defendant only attempts to improperly shift the burden by baldly asserting that Plaintiff cannot establish those elements. Defendant therefore fails to meet its initial burden.

Accordingly, Defendant’s motion is DENIED as to this issue.

Issues No. 6: Wrongful Termination

Defendant moves against this cause claiming it is dependent on the other FEHA claims. (Citing Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 ["because [plaintiff s] FEHA claim fails, his claim for wrongful termination in violation of public policy fails"]; Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050, 1060 [“if the [underlying] claims I dismissed, then there is no ‘unlawful’ act upon which to base the derivative …claim”].) As the other claims remain, so too does this claim.

Accordingly, Defendant’s motion is DENIED.

Moving party is ordered to give notice.

Case Number: BC701155    Hearing Date: October 28, 2019    Dept: 24

Defendant’s motion for summary judgment is CONTINUED.

On April 5, 2018, Plaintiff Robyn Garcia (“Plaintiff” or “Gracia”) filed the instant employment discrimination action against her former Defendant Duarte Unified School District (“Defendant” or “DUSD”) The Complaint arises out of allegations that the Principal of Duarte High School Mark Sims (“Sims”) removed Plaintiff from her position as Athletic Director/Activities Director and replaced her with younger, less experienced and credentialed individuals. She alleges that this was done on the basis of her gender, age, and familial status. She alleges that she was eventually pushed into a less prestigious teaching position. The Complaint alleges six causes of action for: 1) gender discrimination; 2) failure to prevent discrimination - gender; 3) retaliation; 4) hostile work environment – gender; 5) intentional infliction of emotional distress; and 6) wrongful termination.

On August 14, 2019, Defendant moved for summary judgment or in the alternative, summary adjudication of each claim. On October 11, 2018, Plaintiff filed an opposition. On X, 2018, Defendants submitted a reply.

Service Issues

Plaintiff raises an issue with the service and notice period.

CCP section 437c(a)(2) states:

Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.

Proof of service of the motion indicates that the MSJ and associated documents were served on August 14, 2019 by personal service. However, the proof of service only states that counsel “caused [the motion] to be delivered” via their attorney services. This proof of service does not establish service, since the declarant had no knowledge of whether the documents were personally served. Plaintiff asserts that the documents were not received until August 15, 2019 when they were found outside their counsel’s door. Defendant responds by providing a new proof of service from their attorney services, confirming that they served the documents by placing them at the door of the Plaintiff’s counsel’s office. (Supp. Doumanian Decl., ¶ 1, Ex. A.) Thus, the second proof of service provided demonstrates a lack of personal service on August 14, 2019. Service here would properly fall into the category of service for “facsimile transmission, express mail, or another method of delivery providing for overnight delivery” and would therefore increase the notice period by two days. Therefore, Defendant’s motion should have been served by August 12, 2019.

The notice period for motions for summary judgment are jurisdictional. (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112.) Plaintiff insists that this requires denial. The Court disagrees. While the court cannot shorten time, or cure insufficient notice by continuance, the Court may start the notice period anew. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) The fact that additional supporting documents were not served until later also does not require denial of the motion. The Court has discretion to consider the moving party's late-filed papers so long as the responding party was given “adequate notice” and opportunity to respond. (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1099.) Accordingly, the Court will continue the motion for 75 to allow for a proper notice period.

Additionally, Plaintiff requests a CCP section 437c(h) continuance to allow the deposition of Superintendent Mucerino. If the opposing party can show by declarations that controverting evidence may exist, but cannot then be presented, the court may “grant a continuance to permit … discovery to be had.” (CCP § 437c(h) ; see Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.) “Subdivision (h) was added… to mitigate summary judgment's harshness, and it mandates a continuance for the nonmoving party upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion. Moreover, the affiant is not required to show that essential evidence does exist, but only that it may exist. This, and the language stating the continuance shall be granted upon such a showing, leaves little room for doubt that such continuances are to be liberally granted.” (Ibid. [internal quotations and citations omitted].)

Mucerino appears be a critical witness to the resolution of the case and motion, as the principal argument of the motion is that Mucerino’s changes in policies (the “Competitive Advantage Plan”) which resulted in Plaintiff losing her position as Athletic and Activities Director. (UMF 13, 15-19, 21.) The Plan eliminated the two director positions that Plaintiff was performing. (Ibid.) In effect, Mucerino’s plan is the legitimate, non-discriminatory reason proffered to meet Defendant’s burden on the first prong. Plaintiff submits that Sims influenced this plan and advised Mucerino in the plan. Plaintiff should be allowed to depose Mucerino in order to oppose the motion.

Defendant represents that Mucerino was already deposed on October 22, 2019. Plaintiff was therefore unable to integrate the deposition into her opposition. Therefore, the Court would also find it appropriate to allow supplemental briefing by Plaintiff to integrate the Mucerino deposition into her argument, if needed. Plaintiff may submit an amended responsive separate statement to include such evidence, along with up to 5 pages of additional briefing. Plaintiff may serve and file these 9 court days before to the continued hearing date. Defendant may likewise serve and file a supplemental reply brief addressing Plaintiff’s arguments with corresponding responsive separate statement, 5 court days before the continued hearing date.

Accordingly, the motion is CONTINUED to January 15, 2020.

Moving party is ordered to give notice.