Motion for Summary Adjudication (Mary E. Arand)

Case Name: ?? Villanueva v. Midpen Property Management Corp.

Case No.:??????? 2014-1-CV-271846

After full consideration of the evidence, the separate statement submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

This is an action for wrongful termination.? Plaintiff Joseph Villanueva? (?Plaintiff?) was employed by defendant MidPen Property Management Corporation (?MidPen?) as a Community Manager.? (See complaint, ? 1.)? Plaintiff took leave pursuant to Government Code ? 12945.2, the California Family Rights Act (?CFRA?) on October 26, 2013. ?(See complaint, ? 38.)? As scheduled, Plaintiff returned to work from CFRA leave on December 31, 2013.? (See complaint, ? 44.)? That day, Plaintiff was terminated by MidPen for general misconduct.? (See complaint, ? 44.)? On October 14, 2014, Plaintiff filed a complaint against MidPen, MidPen Housing Corporation and his supervisor, Anna Romero (?Romero?) (collectively, ?Defendants?), asserting causes of action for:

  • Gender harassment in violation of Government Code ? 12940 (against all defendants);
  • Discrimination in violation of Government Code ? 12940 (against MidPen);
  • Unlawful retaliation in violation of Government Code ? 12940, subdivision (h) (against MidPen);
  • Violation of CFRA (against MidPen);
  • Wrongful discharge in violation of public policy (against MidPen); and,
  • Intentional infliction of emotional distress (against all defendants).

Defendants move for summary adjudication of the third, fourth and sixth causes of action.

Burden of proof

?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action. ?? ?The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.? ?(Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

?The ?tried and true? way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff?s claim.? ?(Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ? 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) ??The moving party?s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff?s claim ?in order to avoid unjustly depriving the plaintiff of a trial.?? ?(Id. at ? 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

?Another way for a defendant to obtain summary judgment is to ?show? that an essential element of plaintiff?s claim cannot be established. ?Defendant does so by presenting evidence that plaintiff ?does not possess and cannot reasonably obtain, needed evidence? (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) ?Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.? ?(Id. at ? 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Law

In reviewing motions for summary judgment or adjudication in discrimination cases, California courts employ the burden-shifting formula first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. ?(King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433, fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) ?Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. ?(Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.)

??A defendant employer?s motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings.?? ?(Scotch, supra, 173 Cal.App.4th at 1005, quoting Kelly v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088, 1097.) ?To prevail on its motion for summary judgment, the defendant employer is ?required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment.? ?(Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356 and Kelly, supra, 135 Cal. App. 4th at 1097-1098.) ?The elements for a discrimination claim are: that (1) [the plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.?? (Guz, supra, 24 Cal.4th at p.355.)

?If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer?s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.? ?(DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533, 553, citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 and Guz, supra, 24 Cal.4th at p.357.) ??Speculation cannot be regarded as substantial responsive evidence.? ?(Cucuzza, supra, 104 Cal. App. 4th at p.1038.)

?Further, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons.? ?(Guz, supra, 24 Cal.4th at p.360; see also Guz, supra, 24 Cal.4th at 361 (stating that ?[t]he pertinent statutes do not prohibit lying, they prohibit discrimination? [and] there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer?s actions?) (emphasis in original); see also Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 75 (stating that ?to avoid summary judgment? [a]n employee in this situation cannot ?simply show the employer?s decision was wrong, mistaken, or unwise?[r]ather, the employee ?must demonstrate 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 ?that the employer did not act for the asserted non-discriminatory reasons??); see also McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388-398 (stating same); see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (stating same); see also Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343 (stating same); see also Scotch, supra, 173 Cal.App.4th at p.1007 (stating ?[a]n employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the reasons offered by the employer for the employment decision that a reasonable trier of fact could rationally find the reasons not credible, and thereby infer the employer did not act for the stated nondiscriminatory purpose?); see also Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 (stating that ?[t]he plaintiff must do more than raise the inference that the?employer?s?asserted reason is false? [a] reason cannot be proved to be ?a pretext?for discrimination? unless it is shown?both?that the reason was false,?and?that discrimination was the real reason?; also stating that ?[i]f plaintiff produces?no?evidence from which a reasonable factfinder could infer that the employer?s true reason was discriminatory, the employer is entitled to summary judgment?) (emphasis original); see also McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532 (stating that ?disbelief of an Employer?s stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one?).)

?[E]ven where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer?s proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff?s favor.? ?(Guz, supra, 24 Cal.4th at pp.361-362.) ??For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer?s decision, if the plaintiff created only a weak issue of fact as to whether the employer?s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.? ?(Id. at 362.)

Third cause of action for retaliation

To prevail on a retaliation claim, a plaintiff must plead and prove the following elements: ?(1) the plaintiff engaged in a protected activity under FEHA, (2) the employer thereafter took an adverse employment action against the employee, (3) the employer had a retaliatory animus, (3) there was a causal link between the employer?s retaliatory animus and the adverse action, and (5) the adverse action caused the employee to suffer damages. ?(See Gov. Code, ? 19240, subd. (h); Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1220; see also Yanowitz v. L?Or?al USA, Inc. (2005) 36 Cal.4th 1028, 1051-1055 (defining ?adverse employment action? to mean an action that materially affects the terms and conditions of the plaintiff?s employment, for example, by impairing the employee?s future employment prospects); Morgan v. Regents of Univ. of Calif. (2000) 88 Cal.App.4th 52, 69 (stating that a retaliatory animus and causal link can be demonstrated where the employee engaged in a protected activity of which the employer was aware, and the adverse action followed shortly thereafter).) ?Just as with claims for discrimination under the FEHA, claims for retaliation are governed by the same burden-shifting framework. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.) As such, if a defendant establishes a legitimate, nonretaliatory explanation for an adverse employment action, the burden shifts to the plaintiff to show that the defendant?s proffered explanation is merely pretext for the illegal termination.

Here, Defendants demonstrate that:

  • On October 11, 2013, Plaintiff emailed MidPen Benefits Administrator Katie Newkirk (?Newkirk?), submitting a proposed CFRA leave schedule from October 15 through January 16 (see McLaughlin decl., exh. 5);
  • Plaintiff started his CFRA leave on October 16, 2013 (see McLaughlin decl., exh. 6; see also complaint, ? 38);
  • On October 24, 2013, Plaintiff emailed Newkirk and his supervisor, Anna Romero (?Romero?), with his proposed schedule for CFRA, indicating that he would work every Friday and conclude his leave on December 31, returning on January 2, 2014 (see McLaughlin decl., exh.7);
  • On October 25, 2013, Plaintiff gave the key to a vacant unit to Efren Bendanillo, despite knowing that Mr. Bendanillo?s housing application was incomplete, there was no signed lease agreement, the policies and procedures were not followed on the move-in, and giving a key before the application process was complete was a violation of MidPen?s policies (see McLaughlin decl., exh. 2 (?Pl.?s depo?), pp. 160:25, 161:1-3, 164:7-25, 165:1-25, 166:1-25, 167:1-11, 167:19-22, 173:5-8, 174:5-10; see also McLaughlin decl., exh. 8);
  • In a November 6, 2013 email to Romero, Plaintiff states that he ?gave [Bendanillo] permission to move a few boxes into the unit while his file is in review/approval? [because he] wanted to help him and his family? (McLaughlin decl., exh. 8);
  • In that same November 6, 2013 email, when asked how he would ?fix this major problem which could lead to legal issues,? Plaintiff responded that he ?will be moving forward with his application and do[es]n?t foresee an[y] legal issues from either party? (id.);
  • In the November 6, 2013 email, when notified that Bendanillo was terminated from employment, and asked what he was ?going to do with his file,? Plaintiff responded that he ?will move forward with processing his file for approval? (id.);
  • In the November 6, 2013 email, when asked if the 67 applicants before him in the wait list were contacted, Plaintiff responds that ?some were contacted before him? (id.);
  • After the November 6 exchange, Plaintiff continued to follow up on Bendanillo?s file on November 11, 2013 (see McLaughlin decl., exh. 9);
  • On November 22, 2013, Plaintiff emailed Romero, instructing her to ?refrain from assigning me any additional assignments/projects with deadlines until I return from Leave? I will not be responding to emails or phone calls during my leave? (McLaughlin decl., exh. 11);
  • On November 26, 2013, Newkirk emailed Plaintiff stating that she ?was notified that [Plaintiff] requested to be placed on a leave on a full-time basis? and asked if that was correct (McLaughlin decl., exh. 12);
  • On December 6, 2013, Plaintiff wanted to use the remainder of his leave starting that day (McLaughlin decl., exh. 12);
  • Newkirk responded that day, informing him that he ?will be placed on a full-time leave beginning December 6, 2013? [and a]ccording to our records, [Plaintiff?s] CFRA leave will expire on December 30, 2013, and [Plaintiff] will be expected to return to work on December 31, 2013? (McLaughlin decl., exh. 13); and,
  • On December 31, 2013, Plaintiff was terminated for misconduct relating to allowing Bendanillo to move in without the application being approved (see McLaughlin decl., exh. 14; see also McLaughlin decl., exh. 15 (?Romero depo?), pp.328:19-25, 329:1-4).

Defendant meets its initial burden to demonstrate a legitimate, nondiscriminatory reason for its decision to terminate Plaintiff’s employment.

In opposition, Plaintiff presents his own declaration and deposition testimony in which he claims that ?[i]t was Ms. Romero who told Mr. Villanueva to process MidPen employee Efren Bendanillo?s application for a housing unit because she wanted to help him out? [and] Ms. Romero instructed Mr. Villanueva to give Mr. Bendanillo the key to unit 173 and assured him that Mr. Bendanillo?s application would be approved by MidPen because Bendanillo was an employee of MidPen? [and b]ased on Ms. Romero?s instruction, Mr. Villanueva handed Mr. Bendanillo the key to unit E173.?? (Pl.?s memorandum in opposition to motion for summary adjudication (?Pl.?s memo?), p.17:20-28, 18:1-10.)? Plaintiff additionally cites to certain deposition testimony by Laurie Santos-Reguera, Jennifer Mercado and even Romero; however, the cited testimony does not support Plaintiff?s assertion.? In fact, the testimony provided by Plaintiff contradicts Plaintiff?s position.? (See Santos-Reguera depo vol. I, p.104:16-19, exh.1 (November 19, 2013 email with attached memo detailing reasons for Plaintiff?s termination); see also Santos-Reguera depo vol. II, pp.130:15-22, 159:8-25; see also Romero depo vol. I, p.115:18-23; see also Romero depo vol. II, pp.248:5-25, 249:1-25, 328:12-25, 329:1-18, 348:2-25, 349:1-19; see also Mercado depo, pp.172:25, 173:1-16 (stating that Romero never made any comments or jokes to her regarding Plaintiff?s paternity leave or Plaintiff?s ability to care for his child); 203:19-25 (stating that she recalls Plaintiff stating, ?Yes, I?ve given that key to Efren? so that he can move slowly in, to help him out?), 209:13-16 (stating that she was never told that Plaintiff had informed Danielle Cabrales that Romero instructed Plaintiff to give the key to Bendanillo), 233:122 (stating that giving keys to an individual without a lease in place violates HUD rule requiring ?[a]ll low-income subsidized housing [] to go through the proper procedure to abide with the Low-Income Housing Tax Credit guidelines?), exh. 20 (November 6, 2013 email from Mercado to Romero indicating that she ?spoke with Joseph? [and] made Joseph aware that Anna somehow knew that [Bendanillo] have moved-in and was instructed to verify today.? Joseph was being a good Samaritan, so he instructed Efren that he can only move boxes? Per Joseph, he handed the keys to Efren recalling last Friday?).)

Plaintiff?s testimony states that although he gave Bendanillo the key and knew it was wrong to do so, he did so because Romero?not Plaintiff?wanted to help Bendanillo, and Plaintiff merely did so as instructed by Romero.? (See Pl.?s depo, pp.163:19-24, 172:16-25, 173:1-25, 174:1-21; see also Pl.?s decl., ?? 47-48, 51-54.)? Again, however, this self-serving testimony is uncorroborated and counter to even Bendanillo?s deposition testimony, in which he states that: Plaintiff took the initiative to have Bendanillo apply and set up a date to move in (Bendanillo depo, pp.24:16-25, 25:1-11, 27:21-25, 44:1-22, 45:16-25, 46:1-22, 97:25, 98:1-8); Plaintiff was trying to help Bendanillo and assured Bendanillo that ?[i]t should be okay? to move in without the approval on the application or signing of the lease (51:19-25, 52:1-23, 67:1-25, 68:1-3, 69:1-3); Plaintiff was the only other person aside from family with whom Bendanillo had conversations regarding moving into Unit E-173 (69:10-22); Plaintiff sat down with Bendanillo to fill out the application and it was only Plaintiff and Bendanillo there (87:2-10); Bendanillo did not have any conversations with Romero regarding moving in (112:9-12); and, Plaintiff rekeyed the unit and gave Bendanillo the key because Bendanillo asked for the key (130:17-25, 131:1-12).

Plaintiff?s testimony also contradicts other deposition testimony in which he states that he wanted to help Bendanillo and his family moving into the property.? (See Villanueva depo, vol. II, p.316:11-21.)? Plaintiff also does not recall having any conversations with Romero regarding Bendanillo moving into the unit nor any information regarding any emails from Romero regarding specific questions in connection with Bendanillo?s move in, despite earlier testimony presented by Plaintiff.? (See Villanueva depo, vol. II, pp.335:22-25, 336:12-25, 337:1-25, 338:1-25, 339:1-25, 340:1-20.)? Plaintiff?s deposition testimony and declaration statements thus conflict with other portions of his own deposition testimony.? As previously stated, Plaintiff is required to ?demonstrate a triable issue by producing substantial evidence that the employer?s stated reasons were untrue or pretextual? 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 ?that the employer did not act for the asserted non-discriminatory reasons.??? Here, Plaintiff?s self-conflicting testimony is not substantial evidence that demonstrates such inconsistencies or contradictions in the employer?s proffered legitimate reasons for Plaintiff?s termination.? Accordingly, Plaintiff fails to demonstrate the existence of a triable issue of material fact with regards to the third cause of action, and the motion for summary adjudication of the third cause of action is GRANTED.

Defendants? objections to Plaintiff?s evidence are not the basis for the Court?s ruling.

Fourth cause of action

Defendants move for summary adjudication of the fourth cause of action for violation of CFRA, again asserting that it has demonstrated a legitimate, non-retaliatory reason for Plaintiff?s termination.? (See Defs.? Memorandum of points and authorities in support of motion for summary adjudication, pp.9:16-28, 10:1-28, 11:1- 11.)? Indeed, an employer may meet its burden to demonstrate that a claim pursuant to CFRA is without merit by demonstrating a legitimate, nondiscriminatory basis for termination.? (See Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 520.)? For reasons articulated in the third cause of action, Defendants meet their initial burden, and Plaintiff fails to demonstrate the existence of a triable issue of material fact.? Accordingly, the motion for summary adjudication of the fourth cause of action is GRANTED.

Sixth cause of action

Defendants lastly move for summary adjudication of the sixth cause of action for intentional infliction of emotional distress (IIED), asserting that Plaintiff does not: identify extreme and outrageous conduct; present evidence regarding Defendants? intent to cause IIED; and, demonstrate that he suffered emotional distress.

In support of the latter basis, Defendants present Plaintiff?s discovery responses indicating that he has not received treatment, medication, consultation, examination, or other medical services for any emotional distress, and does not otherwise have any documents to support such purported injury.? (See McLaughlin decl., exh. 3, responses to FIs 212.4-212.7; see also McLaughlin decl., exh 16, response to FIs 6.5-6.7; see also McLaughlin decl., exh. 17, response to RPD 23 (stating that after ?a diligent search and reasonable inquiry? documents responsive to this request do not exist?).)? Plaintiff also testified that he did not receive any medical or health care treatment for any such injury.? (See Pl. depo, p.83:7-12.)? Defendants meet their initial burden to demonstrate that Plaintiff lacks evidence to show damages for ?severe emotional distress? of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.?? (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617; see also Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 (granting summary judgment as to IIED cause of action, stating that ?[w]ith respect to the requirement that the plaintiff show severe?emotional?distress, this court has set a high bar? and concluding that plaintiff did not establish that she suffered severe or extreme emotional distress).)

In opposition, Plaintiff acknowledges that ?Mr. Villanueva did not receive medical treatment for his emotional distress,? but nevertheless contends that ?he suffered extreme emotional distress because of Ms. Romero?s harassing conduct, interference with his baby bonding leave, and his termination.?? (Pl.?s separate statement in opposition to Defs.? motion for summary adjudication, undisputed material fact no. (?UMF?) 64.)? Plaintiff?s sole evidence regarding such extreme emotional distress is his own declaration and his deposition testimony.? However, Plaintiff?s statements in his declaration are conclusory and unsupported.? (See Pl. decl. ?? 16 (?I was deeply offended, humiliated and distressed?), 39 (?I continued to suffer a great deal of emotional distress, including anxiety, depression and fatigue?), 57 (?I have experienced feelings of depression, anxiety, loss of trust and humiliation?); see also Pl.?s depo, vol. I, p.82:19-22 (?I felt a high amount of stress and emotional distress?), 105:1-2 (?It made me feel pressured, stressed?), 106:20 (?I felt stressed?), 111:19-20 (?It made me feel pressured to work while I?m on protected leave?).)

However, when Plaintiff was asked at his deposition to elaborate on these statements, he could not.? (See Pl. depo, pp.499:2-6 (unsure of what he means by having a ?symptom of depression?), 501:10-18 (unsure if symptoms are worse); see also Girard v. Ball (1981) 125 Cal.App.3d 772, 788 (granting summary adjudication of intentional infliction of emotional distress cause of action where answers in interrogatories were ?couldn?t sleep?anxiety symptoms?nervous? and in later declaration claimed more extensive symptoms, but plaintiff did not seek medical treatment for his condition).)? In Kerins v. Hartley (1994) 27 Cal.App.4th 1062, the Court considered whether the plaintiff could recover damages for a fear of AIDS on a theory of intentional infliction of emotional distress, and determined that there was no evidence of physical injury or illness and her fear ?is not based on knowledge, corroborated by reliable medical or scientific opinion? and thus found that she could not recover emotional distress damages.? (Id. at p.1077.)? Here, as Plaintiff?s unsubstantiated statements of self-diagnosis do not demonstrate that he actually suffered damages or emotional distress that can be considered objectively reasonable, Plaintiff fails to demonstrate a triable issue of material fact as to damages resulting from actual emotional distress for his sixth cause of action.? The motion for summary adjudication of the sixth cause of action is GRANTED.

The Court will prepare the order.