17-CIV-02046 TATIANNA SMITH Vs. TE CONNECTIVITY CORPORATION, ET AL.
TATIANNA SMITH TE CONNECTIVITY CORPORATION
RICHARD L. RICHARDSON ANDREA L. FELLION
MOTION FOR SUMMARY OF JUDGMENT/ADJUDICATION OF ISSUES TENTATIVE RULING:
Defendants TE Connectivity Corporation’s (TE) and Robert Arteaga’s (Arteaga) (collectively, “Defendants”) Motion for Summary Judgment, directed to Plaintiff Tatianna Smith’s 5-10-17 Complaint, is DENIED. Defendants’ alternative Motion for Summary Adjudication is GRANTED-IN-PART and DENIED-IN-PART, as set forth below.
Plaintiff’s request that the Court deny the motion and/or continue the hearing under Code Civ. Proc. § 437c(h) to allow for additional discovery is DENIED. The statute requires that a party opposing summary judgment/adjudication demonstrate, through affidavits, that facts essential to the opposition may exist, but could not be presented with the Opposition papers. Plaintiff argues Defendants initially redacted the names of some important witnesses in Defendants’ Jan. 2018 document production, but then later identified most of those names in an un-redacted document production in May 2018. Plaintiff states she then immediately noticed the depositions of two key witnesses (Pereira and Lal), which are now completed. Ms. Pereira was Plaintiff’s HR Manager and Mr. Lal was Plaintiff’s direct Supervisor. Plaintiff was aware of these two witnesses and their significance to the case from day one, and their depositions have concluded. Plaintiff’s affidavits do not identify any additional “key” witness, nor explain why they are important to the case, or why they have not been deposed. The argument that some unidentified important witness(es) may exist does justify a denial or continuance under § 437c(h). On Sept. 4, 2018, Plaintiff filed a sur-reply (entitled: “…Response to Defendants’ Reply …”), together with a declaration of counsel. The Court’s 8-22-18 Order permitted Plaintiff to file a supplemental brief by Aug. 31, 2018 not exceeding five pages. The Sept. 4 supplemental brief is both untimely and exceeds the stated page limitation, and is disregarded, as is the supporting declaration, which consists almost entirely of hearsay.
With respect to Plaintiff’s Dept. of Fair Employment and Housing (FEHA) claims, the Court finds that Plaintiff’s March 2017 DFEH Complaint, construed liberally, exhausted her administrative remedies. Defendants’ request that the DEFH claims be dismissed on grounds the Complaint lacked the required specificity (citing Hobson v Raychem Corp. 73 Cal.App.4th 614, 631 (1999)) is DENIED. Plaintiff’s DFEH charge alleged “discrimination,” “harassment,” and “retaliation” based on (1) Plaintiff’s “engagement in protected activity,” (2) “race,” and (3) “sexgender.” RJN, Ex. A. It alleged Defendant’s actions resulted in Plaintiff’s “termination” and “demotion.” Id. Viewed liberally, the DFEH charge sufficiently encompasses the claims asserted in this case. Further, the Court does not agree, as Defendants contend, that the language “On or around February 20, 2017…” renders the DFEH charge deficient. Defendants note that in contrast to the Feb. 20, 2017 date identified in the DFEH Complaint, the lawsuit’s Complaint alleges Defendants’ wrongful conduct occurred from “Sept. 2016 to present.” Defendants were aware of Plaintiff’s on-going dispute with Defendant Arteaga in 2016, including her temporary termination in mid-2016, including her allegations of retaliation after returning to work. Indeed, TE conducted an extensive investigation into these matters, including interviewing relevant witnesses. There is no unfair lack of notice to Defendants. Although the “On or around Feb. 20, 2017” language is oddly narrow, construed liberally, the DFEH Complaint provided enough information to place Defendants on notice of the claims asserted against them, to enable Defendants to investigate the matter. For these reasons, the Court finds Plaintiff’s DFEH charge does not bar the present claims.
On the First Cause of Action for “quid pro quo sexual harassment,” the Motion for Summary Adjudication is DENIED. The evidence raises a triable issue of fact as to whether Plaintiff’s employment was explicitly or implicitly conditioned on Plaintiff submitting to unwelcome sexual advances. See, e.g. Smith Tr., Vol. I at 192-3, 200, 209-10, 214-16, 230-32. Arteaga himself contends that he and Plaintiff had a sexual relationship for several months prior to mid-2016. There is evidence Arteaga made repeated sexually suggestive comments to Plaintiff both at and away from work, including remarks about her body and requests to give her a massage in his office. In mid-2016, after Plaintiff cancelled a planned visit to a day spa with Arteaga, Arteaga told Plaintiff “you better make it up to me with that sexy body …”. See, Smith Tr., Vol. I at 1923, 200, 214-15. There is evidence that in July 2016, Plaintiff was temporarily terminated shortly after refusing one of Arteaga’s massage invitations, and that Arteaga likely made the decision to terminate Plaintiff without HR’s approval. Thereafter, Arteaga disclosed to TE’s HR Department, for the first time, his alleged sexual relationship with Plaintiff. Plaintiff disputes Arteaga’s characterization of the “relationship,” and contends she had been reluctantly tolerating his unwelcome sexual advances out of concern for her job. Collectively, and without passing on the merits of Plaintiff’s harassment claim, this evidence creates a triable issue of fact as to the asserted quid pro quo sexual harassment claim. Defendants’ Reply brief cites to the Requests for Admission, arguing Plaintiff has admitted that Arteaga never expressly stated he had the power to fire Plaintiff if she did not consent to his advances (see 8-17-18 Suppl. Zenewicz Decl., Ex. J, Request for Admission No. 29). That admission, however, does not necessarily defeat this cause of action.
On the Second Cause of Action for “hostile work environment,” the Motion for Summary Adjudication is DENIED. To prevail on this claim, Plaintiff must show harassing conduct “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1043. In seeking dismissal of this claim, Defendants point to Plaintiff’s discovery admission that “there was no severe or pervasive unwelcome conduct by Robert Arteaga that altered the conditions of [Plaintiff’s] employment with Defendant.” 8-17-18 Suppl. Zenewicz Decl., Ex. J, Defendant TE’s Requests for Admission (RFA) to Plaintiff, Set One, Request No. 32; Ex. K (Order deeming RFAs admitted). Code Civ. Proc. § 2033.410(a) (RFA admissions conclusively establish facts as true). Viewed narrowly and in Plaintiff’s favor, however, this admission does not necessarily defeat the cause of action because it refers only to Arteaga’s conduct, not the actions/conduct of other employees. The evidence here creates a triable issue as to this claim. See, e.g., 8-8-18 Richardson Decl., Ex. 6 (HR interview notes documentating Plaintiff’s reports of favoritism) (8-29-17 interview with employee Virginia Havea, who informed HR “there is favoritism at TE … You have to pick sides … Robert [Arteaga] and Estella have a special relationship” … Havea also reported that employee Estella asked Havea for information about Plaintiff that she could give to Robert Arteaga, and told Havea that if Havea could provide information about Plaintiff, “Robert will take care of you”); Ex. 9 (11-23-16 Lal email [“I know there is a vendetta against [Plaintiff]. It is sad to see that there are certain individuals who instead of helping her out what [sic] her to fail.”) (10-2-16 Pereira email referring to disciplinary action against Plaintiff [“This feud in finishing could become a hostile environment …”]).
On the Third Cause of Action for “retaliation,” the Motion for Summary Adjudication is GRANTED. Plaintiff’s Complaint alleges that as a result of her reporting Defendant Arteaga’s unwanted conduct to Defendant TE’s HR Department, she suffered retaliation in various forms. See Complaint at PLD-PI-001(3). However, Plaintiff admitted in discovery there was no retaliation. See 8-17-18 Suppl. Zenewicz Decl., Ex. J, Defendant TE’s Requests for Admission (RFA) to Plaintiff, Set One, Request No. 33 (“Admit that YOU were not retaliated against for YOUR reporting any misconduct by Robert Arteaga to Defendant”); Ex. K (Order deeming RFAs admitted). Code Civ. Proc. § 2033.410(a). Further, as to Defendant Arteaga, individually, the claim lacks merit as a matter of law because an individual cannot be personally liable for retaliation under FEHA. Jones v. Lodge at Torrey Pines, 42 Cal.4th 1158, 1173-4 (2008).
On the Fourth Cause of Action for wrongful discharge, the Motion for Summary Adjudication is GRANTED. Plaintiff does not dispute that after her termination in July 2016, she was reinstated three weeks later, with full back-pay for the short time period she was out. Plaintiff has identified no damage resulting from this temporary termination that Defendant TE retracted. See UMF No. 63. Further, Plaintiff has admitted she was not terminated for reporting Arteaga’s misconduct. See 8-17-18 Suppl. Zenewicz Decl., Ex. J, Defendant TE’s Requests for Admission to Plaintiff, Set One, Request No. 30 (Plaintiff admitting she was not terminated as a result of reporting Arteaga’s alleged misconduct to TE); Ex. K (Order deeming RFAs admitted). Code Civ. Proc. § 2033.410(a). As to Defendant Arteaga individually, this claim also fails as a matter of law because a supervisor may not be held individually liable for wrongful discharge in violation of public policy. Reno v. Baird, 18 Cal.4th 640, 663-4 (1998).
On the Fifth Cause of Action for race discrimination, the Motion for Summary Adjudication is GRANTED. There is no evidence suggesting any adverse employment action motivated by/related to Plaintiff’s race. Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 355 (2000) (Plaintiff must show “it is more likely than not” that an adverse action was “based on a prohibited discriminatory criterion”). Plaintiff essentially admitted in deposition this claim lacks evidentiary support. Smith Tr., Vol. II at 432-34; SUF 72, 73. Plaintiff also admitted this claim lacks merit in response to Defendant TE’s Requests for Admission. See 8-17-18 Suppl. Zenewicz Decl., Ex. J, Defendant TE’s Requests for Admission (RFA) to Plaintiff, Set One, Request Nos. 27, 28 (Plaintiff suffered no adverse employment action based on her race); Ex. K (Order deeming RFAs admitted). Code Civ. Proc. § 2033.410(a). Plaintiff further concedes this claim’s lack of merit by failing to address it in her Opposition brief. Additionally, Plaintiff admitted facts deposing of this claim by not disputing the facts set forth in Defendants’ Separate Statement. See Defendants’ SSUF, Nos. 72-78 [Plaintiff could not recall a single comment being made pertaining to her race, and does not believe she was a victim of race discrimination]). Code Civ. Proc. § 437c(b)(3); CRC 3.1350(f).
On the Sixth Cause of Action for negligent hiring, retention, and training (asserted only against TE), the Motion for Summary Adjudication is GRANTED. First, there is no evidence TE had any reason to doubt Orteaga’s fitness/competence at the time of his hire. Further, the Complaint alleges that “on our about … Sept. 2016 to present,” Defendant Orteaga “was unfit, incompetent to perform his job” in that he was “us[ing] his position and authority to sexually harass, touch, and intimidate female employees that worked under him.” It alleges Defendant TE “knew that this unfitness created a risk to female employees,” and that “[t]he unfitness and incompetence of Orteaga harmed Plaintiff.” In discovery, however, Plaintiff admitted that “Robert Orteaga is not ‘unfit, incompetent to perform his job’ as alleged in YOUR COMPLAINT.” 8-17-18 Suppl. Zenewicz Decl., Ex. J, Defendant TE’s Requests for Admission (RFA) to Plaintiff, Set One, Request No. 34; Ex. K (Order deeming RFAs admitted); Code Civ. Proc. § 2033.410(a) (facts deemed admitted are conclusively established).
On the Seventh Cause of Action for “intentional infliction of emotional distress,” the motion is GRANTED. See 8-17-18 Suppl. Zenewicz Decl., Ex. J, Request for Admission (RFA) No. 35 (requesting that Plaintiff admit she “has not suffered emotional distress of such substantial or enduring quality that no reasonable person in a civilized society should be expected to endure it as a result of the events alleged in YOUR COMPLAINT”); Ex. K (Order deeming RFAs admitted); Code Civ. Proc. § 2033.410(a) (facts deemed admitted are conclusively established). Further, Plaintiff has not disputed any of Defendants’ UMF Nos. 95-106, which prevent Plaintiff from establishing the required elements of this cause of action. Code Civ. Proc. § 437c(b)(3); CRC 3.1350(f); CACI 1600 (requiring that Plaintiff asserting IIED claim prove Defendant(s) engaged in “outrageous” conduct that caused Plaintiff to suffer “severe emotional distress”).
The Court also notes that Plaintiff has not disputed Defendants’ “Undisputed Material Facts” (UMFs) pertaining to the third through seventh causes of action, incorrectly stating that Defendants’ UMFs “are common for all counts.” While they overlap to some extent, Defendants’ UMFs are not identical for each asserted cause of action. Where the UMFs for each claim are not the same, it is not the Court’s task to parse through the facts set forth for each cause of action to determine whether (and to what extent) they overlap. See Code Civ. Proc. § 437c(b)(3); CRC 3.1350(f).
Defendants’ Request for Judicial Notice of Plaintiff’s DHEH Complaint is GRANTED. Evid. Code § 452(c).
Defendants’ Objections to the 8-8-18 Richardson Declaration, Objection Nos. 1-28, are OVERRULED in their entirety.