Preview
F SuperiorCourtofCalifornia
County of Butte
F
I I.‘
'- APR 21 2022
‘L
SUPERIOR COURT OF THE STATE OF CALIFORNIA. E ‘
E
'FOR THE COUNTY OF BUTTE D 1
ah, Clerk D.
\Sll‘a
By Depu
:
HON. MOLLY BIGELOW
/cic
tflvozaa‘i
V
#1894283]?
JULIE COULOMBE,
Plaintiff,
7 VS.
BUTTE COUNTY PROBATION
Defendant.
‘
NATURE OF PROCEEDINGS: ‘
RULING 0N DEFENDANT’S MOTION FOR ,
SUMMARY JUDGEMENT; OR, IN THE
' .
ALTERNATIVE, SUMMARY ADJUDICATION
'
Defendant’s Motion for Summary Judgment or in the Summary Adjudication
is
Alternative
DENIED.
This case alleges four causes of action for sex discrimination, retaliation hostile work
environment, and failure to prevent discrimination. Plaintiff has worked for Defendant, Buttef
Probation for over Plaintiff
'
County (hereinafter Defendant”) thirty years. has presented ’
evidencein the form of her testimony as well as testimony from other employees within the
department supporting Pla1nt1ff s allegations of a hostile work environment as it
pertains to
male/female interactions within the Perhaps the most serious allegation as it:_
department.
pertains to Plaintiff specifically, concetns an incident with Pla1nt1ff 8 co-
-worker Mike Rogers
(hereinafter “the Rogers incident ). According to Pla1nt1ff s testimony, she attended a two week
seminar with Mike Rogers. During the training, at a dinner with other high ranking law
enfOrCement officials, Plaintiff alleges that she asked what their plans were for that evening and
“Mike ROgers made a gesture with his hands
and
mouth implying I would give him a blow
that
job” (see Plaintiff’s declaration l019- ll)
1.
Evidentiary Objections
As to evidentiary objections by Plaintiff concerning Defendant’s Separate Statement 'of Material V
‘
Facts, the Court finds that there were no objections to evidence the COurt deemed to bevmatenal
to the
motion,thus pursuant'to CCP § 437e, the Court elects not to' rule on the objectiOns
provided.
As to evidentiary objections by Defendant concerning Plamt1ft’ 5 Separate Statement of Material
Facts, the Court rulings as to evidenCe it deems material to the motion:
.
makes the following
[i
it
UMF nos. 145, 146,151, 156, 162, 163: overruled;
I UMF 150: evidence does not support the fact; .
1
I. UMF167: no evidence that Plaintiff inferm’ed HR of the Rogers incident;
' UMF 177: speculation: sustained,
‘
2. Spoliafionof Evidence.
Prior to analyzing the merits of each cause of action, the Court is first tasked with evaluating an
issue raised in Plaintiff‘sopposition concerning the spoliation of evidence. It isvundisputed that
Chief Berdin w as the ultimate decision maker for several, but not all, of the employment
decisions that are the subject of this case for which Plaintiff contends she was discriminated
against and retaliated against throughout the hiring process Plaintiff has Submitted the
deposition transcript of Chief Bordin in which Chief Bordin admitted to destroying all of his
emails two weeks prior to retiring (Bordin 45: 3— 8).Chief Bordin went on to state
Deposition
that I purposefully didn t keepa lot of stuff. “1 didn t want to bein a situation like this, and
have it used against the or myself’ (Berdin DepOsition 38: 19-25).
County,
Chief Bordin further acknowledged that by the time he had deStroyed the information he was ’
already aware of this lawsuit (Bordin Deposition 41: 12-14). Additionally, Chief Bordin
indicated that he destroyed text messages between himself and with assistant Chief Lynch
noting that ‘I delete all my conversatibns
when
1 m done with them” (Bordin Deposition 123: 2-
.
.
7)
As Plaintiff has noted: .
. Destruction of evidence relevantto proof of an issue at trial can support an, inference, that the
evidence Would have been unfavorable to the party responsible for its destruction. In order
for an adverse inference to arise from the destruction of evidence, the party having control
A
over the evidence must have had an obligation to preserve it at the time it was destroyed. In
addition ”the party seeking the benefit of' an inference from spoliation mUSt demonstrate first
that the reCords were destroyed with a cu1pable state of mind (i.e. where, for example, the 1
records were desttbyed knowingly, even if without intent to violate [a] regulation [requiring
their retention], or
negligently). Second, a party must show that the destroyed records were
relevant to the party' s claim or defense But, [‘there will typically be no way of telling what
the wOuld have how much it would have
weighedin the
precisely evidence shOwn and ‘0,
spoliation victim's favor”, citing Cedars-Sinai Medical Center Super
12' 10) Court 18 Cal. 4‘h l,
14] (Reeves v. M V T1anspo;Iatzon,~ Inc. (2010) 186 Cal.App.4th 666, 681- 682)
A defendant is not under a duty to produce testimony adverse to himselfibut if hefails to produce
.
evidencethat would naturally have been produced he must take the risk that the trier of fact will
‘
infer, and properly so, that the evidence, had it been preduced, would have been adverse”
(Williamson v. Superior Court of Los Angeles County (1978) 21 Cal. 3d 829, 836 fn. 2). Thereis a
long line of authority including Evidence Code 413, and CACIJury instruction 204 dealing with the
spoliation of evidence. 1t15 reasonable to infer from these authorities that a litigant has a duty. to, at
a minimum, preserve evidence once the litigant has been made of the Thus, Chief
aware lawsriit.
had a duty not to destroy the emails. -
Bordin
'
Regarding the text messages with Lynch,“ is unclear as to when those text messages were destroyed
-
in relation to the lawsuit. F01 the purposes of this motion. the Court finds there is a triable issue of
fact that exists as to had a duty not to the texts at the time he
whether Chief Bordin delete deleted
them.. - a 1 -
I
As to the, stateof mind element, Chief Bordi'n’s statement that he destroyed 'the‘emlailsso that they
.
weren’t used against the County or himself, is significant. It shows a culpable state of mind.' -
Although he later back track on that statement, that bell cannot be
attemptS'to ;un-r11ng-.
i
Finally, as to the relevance argument, as noted in the Cedars- Sinai case referenced supra, it is
-
impossible to know ifthe informatiOn Chief Bordin destroyed contained relevant information or not.-'
_
In struggling with this problem, the Court 1svery concerned with the, representation made by Chief
’
-
Bordin that informatidn wasgdestroyed so that it co'uld'not be us‘ediagainst'the County or himself. In
the Court’sview, this statement is evidence thatthere may: be infonnatiOn that is relevant, ,
_
The Court nOtes that typically, spoliation issuesare questions for the trier of faCt to consider.
'
'
cAc1 204:
V
You may consider whether one party intentionally concealed or destroyed evidence If yOu
decide that a party did so you may decide that the evidence would have been unfavorable to
that party.
3.
Summary Judgment
Courts view the evidence on Summary. judgment, including all reasonable inferences supported by'
that evidence in the light most favOrable to the non1n0ving party (Ventura Keste1,LLC v
Folksamerica Reinswance C0,, (201 3) 219 Cal App.4th 633, 640).- In light of the court 5
.determination that the spoliation rule18 applicable here, the Court finds that1n the context of this
motion, and1n viewing all inferences1n the light most favorable to Plaintiff, the implicatiOn1n ,
applying the spoliation doctrine15 that the Court will, for purposes of this motion,
make adverse
inferences based on the destruction of evidence.
Specifically, as noted, Chief Bordin was the ultimatedecisibn‘ maker as to several employment
decisibns that are the subject of this lawSuit As to these decisions, which pertain to Chief Bordin,
the COurt is inferring that the destroyed information contained evidence supporting a finding of
discriminatory animus as to the diScrimination cause of action, and a causal link betVveen the
protected activity and the adverse employment action as to the retaliation eatises cf action. To be
‘
clear, this islimited to the _de'cisionsfor which Chief Bordinwas the ultimate decision maker
.
As to each cause of actidn,‘ the Court provides the following analyzes.
A. First Cause of Action - Sex Discrimination
There is a three stage burden shifiing test for discrimination claims. First, Plaintiff must prove that
she is part of a protected class; second, was qualified for the position she sought or was performing
competently in the position she held; third, suffered an adverse employment action; and fourth, the
employer treated similarly situated employees outside of the protected class more favorably (Gut~ v.
'
Bechtel National, inc. (2000) 24 (3211,4111 317, 355).
Program Manager Position 2016
.I
.
-
Here it is undisputed that this position Was awarded to a female, Jennifer Hard (see UMP 74).
A
Consequently, Plaintiff cannot establish a prima facie case for sex discrimination as it pertains to this '
position because the person treated more faVOrably was not outside the protected class.
'1
ReasSigriment to Placement Unit
The Court finds that as to this employment decision, no. adverse employment action occurred.
Not every change in conditions of employment constitutes an adverse employment action. A change
that is merely Contrary to‘the cmployees’ interests or not to the employee’s liking isinsufficient.
Workplaces are rarely idyllic‘retreats, and the mere fact that an employee is displeased by an
employer’s act or omission does not elevate that act or omissiOn to the level of a materially adverse
employment action (Ma/01‘s v. Los Angeles City Fire Dept- (2007) 150 Cal.App;4th 350, 357).
Here, Plaintiff does not dispute that her salary did net decrease as a result of the reassignment.
Plaintiff‘s attempt to argue that she was adversely affected by the reassignment indicates that she
was displeased with the assignment, which as Malais notes is an basis for establishing
insufficient
and adverse employment deCision.
I Assistant Chief Positionin October 2019
‘
As to the Assistant Chief position Defendant has provided evidence that she never applied (See
UMF 112). Plaintiff‘s position is ostensibly that she didn t apply because she was not provided an
opportunity to do so, otherwise she would have. Thus, theoretically, Plaintiff Was denied an
opportunity at theposition by not being made aware of the position.
However, the Court notes that UMP, 112 also provides that an invitation to apply was emailed to the
entire department. does not directly address whether she received that entail.
Plaintiff's response
The Court finds Plaintiffs declaration that she would have applied if given the opportunity to do so
is vague and does not specifically address the factualissue that the email was sent the
‘
to entire
department."
-rm
In light ‘of these circumstances, the Court finds that it is undisputed that Plaintiff did not apply, and 1
’
that Plaintiff didnot specifically the fact that the email was sent to the entire department.
dispute
Consequently, there15 no triable1Ssue of fact that Plaintiff did not apply for the position despite the
fact she was on notice. As a result, the Court finds that no adverse action
employment occurred
.
because
Plaintiff never applied despite receiving notice
-
5
Program October 2020
Manager
This position was also awarded to a female (See UMF 121). Thus asdiscussed above Plaintiff
cannot establish a prima facie case as to this decision
I. the Juvenile Position
Superintendent of 1114111
Unlike the other employment decisions, the Court finds that the only element1n dispute as to
,1
this
position is whether Defendant treated Plaintiff differently because of her sex,-
'
After a defendant meets the burden of showing legitimate non~discrirninat01y reasons for the alleged.
:
misconduct, a plaintiff has the burden to present evidence showing: (1) that the defendants reason
for not renewing her centtact Was pretextua1;(2) the defendant acted with a discriminatory animth 1n .
_
'not renewing her contract; or (3)11 combination of the two (Swanson
v.
MorOngo Lni/ied School
‘Dzsn1c: (2014) 232 Cal. 4th 966)
App 954,
1'
The Court notes for. the parties that the spoliation' inferencedoes not apply hereas this decision Was
.
made by Chief Barley, not Chief Bordin. Here the County has met its burden of showing a non-_
Pinocchio— he ranked better duringthe
‘
disoriminatory reason for awardingthis position to Mr.
interview process and was more qualified than Plaintiff for the particular position (see UMP 129-
132). Thus, the burden shifts to Plamtiff to show that Defendant 8 reasons were pretextual or that
‘
Defendant acted with a discnmmatory animus
.
In Pla1nt1ff s declaration, she asserts that shortly before the position Was posted, the
reviewing
minimum requirements were Changed so that a bachelor’s degree was not required Mr Pinocchio,
who Was awarded the position, did not have a bachelor 5 degree Plaintiff ostensibly contends that
based on the circumstances that she had a 3 Was not a
fair shOt and Mr
degree she given
,
bachelor
PinocChio Was preselected
If a tactfinder canconclude that a reasonable employer would have found the Plaintiffto be
significantlybetter qualified for the job, but this employer did not, the fact finder can legitimately ,
infer that the employer Consciously selected a less qualified candidatc— something employers do not
usuallydo, unless some other strong consideration, such as discrimination, is in the
picture (Reeves
v. MV Transportation, Inc. (2010) 186 Cal App. 4th 666, 674- 675).
I
While not all cases hold that -‘the 'd1spar1ty1n candidates qualifications must be so apparent as to
jump off the‘upage and slap us in the face to support the finding of pretext, the precedents do
I
censistently require that the disparity be substantial to support an inference of discrimination.
_
v.MV Transportation, Inc. (2010) 186 Cal. App. 4th 666,675).
(Reeves
11IS fair to say that a degree, or lack thereof, does not automatically. indicate a substantial disparity in
candidates? qualifications. Obviously, this analysis depends on the type of job However, for
purposesof this motion, the Court finds Plaintiff has met her burden of establishing a triable 1ssue of
fact a Plaintiff
'
by presenting circumstantial evidence that the position previously required degree. ,
'
had a degree, but then the qualifications were subsequently changed to not require a degree. This
circumstantial evidence, along with some of the other evidence presented by Plaintiff alleging a
hostile werk environment towards women, as well as the fact that Plaintiff had already made a
I
formal complaint prior to this job posting, presents a question of faCt as to whether. the reasons
by the County concerning to hire Mr. merely a for a
proffered their decision Pinocchio was pretext
discriminatory
motive.
4 out of the 5 employrrient decisions that Plaintiff has placed at issue in this case
I
Thus, although
appear to be insufficient to establish a prima facie case for d1scnm1nat1on as no triableissues of fact
-
.
exist, there1s one decision Where triableissues of fact exist.
A plaintiff who has pleadeda cause of action on either of two theories will not be subject todefeat.
by summary judgment where defendant has established by an un'contradiCted affidavit that one of the
V
"
two theories, but not necessarily the ‘other, cannot be established. Defendant has the to rule
'
burden
out all
pessible merit(Cox
1'.State, 3 Cal. App. 3d 301, 310)
As we cannot parse out the different theories of the cause of aetion the Motion as to the First
Cause of Action for Sex D1scr1m1nat10n1s DENIED.
‘
B. Action --
Second Causelof Retaliation
A
-
A prima facie case for retaliationrequires the plaintiff to show: (l) he or she engaged1n a ‘protected '
activity’; (2) the employer subjected the employee to an adverse employment action; and (3) a causal
-:
'
link existed between the protected activity and the employer’s action. once the employee
establishes a prima facie case, the employer is required to offer a legitimate nonretaliatory reason
If the employer for the
'
. for the adverse employment action. produces a legitimate reason adverse
' emplbyrnentaetion, the burden shifts back to the employee to prove intentional retaliation (Yanowitz
v. L'Oreal USA Inc (2005) 36 Cal 4th 1028 1042).
I
' 2016
Program Manager Position
'
As noted, this position was given to another female HoWever, in the context of retaliation this does
not automatically negate the claim because does require a person was
retaliation not that favored
the scope of the class. .
outsrde
(The Defendant claims there15 no evidence that Chief Bordin', the ultimate decision makerin this
instance, knew about the alleged between Rogers and
incident the Plaintiff. The incident 111
which
.
if
Rogeis allegedly suggested the Plaintiff provide him a ‘.‘blow job’ the Plaintiff did not
because
it to other than
report anyone Lynch
The Court reincorporatcs itsanalysis as to the spoliation Of evidenceissue discussed supra Based
‘
on thespoliation analysis, the Court, for the pin-poses of this motion only, 15 inferring the spoliation
"
of evidence by Chief Bordin adversely to the Defendant. Specifically, the COUTI findsthat a trier of
fact could find that there was evidence indicating that Chief Biordin‘ knew of the Rogers incident and
the fact the Plaintiff reported it to Lynch prior to Chief Bordin s decision as to the program manager
position Additionally, the Court notes that it is undisputed that Chief Bordin admitted to referring
'
to the Plaintiff as “mean Julie” in a meeting. Thus, the Court finds a triable 1Ssue of fact exists as to
themm: of intentional retaliation and this position. _
- ‘
In light of the Court 5 finding that a tnable1Ssue of material fact exists as to the retaliation cause of 1
actiOn‘ and the 20l6 program manager position, the Court declines to delve into the remaining
>
employment decisions as to this cause of action. As noted, ifany viable
theory
exists as to a cause
‘
of action summary must be -
judgment denied.
The Motion as to the Second Cause of Action for 81:11 DiscriminationIS DENIED.
C Third Cause of Action Hestile Work Environment 7
' Hostile work environment requires; ( l) plaintiffIS a member of a protected class; (-2) plaintiff was
subjected to unwelcome harassment, (3) the harassment was based on Plaintiff-s protected status; (4) .
the harassment unreasonably interfered with Plaintiff‘s work performance by creating an
1
intimidating, hostile. or offensive work environment; and (5) defendants are liable for the
harassment (Ortiz
v. Dameron Hospital A5311" (2019) 37 App 5th 568,
Cal. 581).
’
.Government Code Section 12923 provides:
(b) A single incident cf harassing conduct is sufiicient to Create a triable issue regarding _
the existenCe of a hostile work environment if the harassing'conducthas unreasonably .
interfered with the plaintiff's werk performance or created an intimidating, hostile, or
offensive working environment.
Here, the Rogers incident at a minimum representsa triableIssue of factas to whether that incident
'
alone18 severe enough toestablish a hestile work environment. Further, there is no doubt that the >
Rogers incident, it believed to be
trite by
a trierof
fact,is objectively offensive.
--At a minimum combining the Rogers incident with other'allegations made by other witnesses .
'
indicating that women were sizbje’cted to comments such as 'Team Titty” and the Plaintiff being
.
have no place beingin such a high profile position, and that l wOuld fail
’
informed by a supervisor that a co-worker,Mark Cole, said that as it relates to Plaintiff, “that women
(Declaration of Plaintiff,
23- 25. 5: 21-24), is enough for this cause of action to surviVe
3 summary judgment
,
Motitm as to the Third Cause Sex IS DENIED.
The of Action for Discrimination
D. Fourth Causeof Action —
Fa1lure to Prevent Discrimination
V
The Defendant s sole argument for summary judgment hereis under the theory that the proceeding
causes of action necessarily fail. In light of the Court 5 ruling, the motion is denied as to this cause
of action as w.ell
1. Failure to Administrative
Exhaust Remedies
Additionally, the Defendant argues the Plaintiff‘s claims for failing to promote and being reassigned
are barred because she did not timely file a DFEH claim. Specifically the Defendant argues the
. Platntlff did not timely file a DFEH Complaint regardingher discrete retaliation claim arising out of
her retaliation claim arising out of that incident
the Program Manager in and
.
Position October 2016
must be dismissed. 1
Here the Court finds Yanowitz v. L ’Oreal USA, Inc, (2005) 36 Cal 4‘h 1028 to be on point The
Court noted that the statute should not be read to force upon an employee the unappealing choice of
resigning at the first s1 gn of discrimination or (in the other hand persisting in the reconciliation
process and possibly forfeiting a valid claim should that process prove unsuccessful.
Yanowitz dealt with allegations that were both outside the time limitations period, as well as
‘
allegations within the time limitations period and found that there was not a
separate
discrete act of
retaliation, rather there were allegations of separate retaliatory acts Suchis the case here, as the
Plaintiff alleges acts of retaliation from 2016 through the filing of the lawSuit. As to the seanl
harassment/hostile work environment allegations, those allegations also appear to have continued
(See Plaintiff 5 Material Fact 16) . .
Finally, the Defendant argues that the Plaintiff's claims for failing to promote, being reassigned, and
harassed by Mike Rogers are barred because she did not file a DP EH
complaintas to those claims.
.
H011 ever. Defendant cites no authority requiring P1a1nt1fi‘ to articulate every single fact1n support of
her claim nor every single incidentin suppbrt of her claim. The Medix Ambulance case cited by the
Defendant dealt with a situation where Plaintiff failed to name a partyin the FEHA claim but
subsequently attempted to name that patty in the lawsuit That 18 not the situation here
Plaintifi shall prepare and submit a form of order consistent with this ruling. :
Dated: April 21 ,Izozz
MOLLY
mint: v n’flrarn nut
BibELow
Judge of the‘Su'perior Court
Preview
F SuperiorCourtofCalifornia County of Butte F I I.‘ '- APR 21 2022 ‘L SUPERIOR COURT OF THE STATE OF CALIFORNIA. E ‘ E 'FOR THE COUNTY OF BUTTE D 1 ah, Clerk D. \Sll‘a By Depu : HON. MOLLY BIGELOW /cic tflvozaa‘i V #1894283]? JULIE COULOMBE, Plaintiff, 7 VS. BUTTE COUNTY PROBATION Defendant. ‘ NATURE OF PROCEEDINGS: ‘ RULING 0N DEFENDANT’S MOTION FOR , SUMMARY JUDGEMENT; OR, IN THE ' . ALTERNATIVE, SUMMARY ADJUDICATION ' Defendant’s Motion for Summary Judgment or in the Summary Adjudication is Alternative DENIED. This case alleges four causes of action for sex discrimination, retaliation hostile work environment, and failure to prevent discrimination. Plaintiff has worked for Defendant, Buttef Probation for over Plaintiff ' County (hereinafter Defendant”) thirty years. has presented ’ evidencein the form of her testimony as well as testimony from other employees within the department supporting Pla1nt1ff s allegations of a hostile work environment as it pertains to male/female interactions within the Perhaps the most serious allegation as it:_ department. pertains to Plaintiff specifically, concetns an incident with Pla1nt1ff 8 co- -worker Mike Rogers (hereinafter “the Rogers incident ). According to Pla1nt1ff s testimony, she attended a two week seminar with Mike Rogers. During the training, at a dinner with other high ranking law enfOrCement officials, Plaintiff alleges that she asked what their plans were for that evening and “Mike ROgers made a gesture with his hands and mouth implying I would give him a blow that job” (see Plaintiff’s declaration l019- ll) 1. Evidentiary Objections As to evidentiary objections by Plaintiff concerning Defendant’s Separate Statement 'of Material V ‘ Facts, the Court finds that there were no objections to evidence the COurt deemed to bevmatenal to the motion,thus pursuant'to CCP § 437e, the Court elects not to' rule on the objectiOns provided. As to evidentiary objections by Defendant concerning Plamt1ft’ 5 Separate Statement of Material Facts, the Court rulings as to evidenCe it deems material to the motion: . makes the following [i it UMF nos. 145, 146,151, 156, 162, 163: overruled; I UMF 150: evidence does not support the fact; . 1 I. UMF167: no evidence that Plaintiff inferm’ed HR of the Rogers incident; ' UMF 177: speculation: sustained, ‘ 2. Spoliafionof Evidence. Prior to analyzing the merits of each cause of action, the Court is first tasked with evaluating an issue raised in Plaintiff‘sopposition concerning the spoliation of evidence. It isvundisputed that Chief Berdin w as the ultimate decision maker for several, but not all, of the employment decisions that are the subject of this case for which Plaintiff contends she was discriminated against and retaliated against throughout the hiring process Plaintiff has Submitted the deposition transcript of Chief Bordin in which Chief Bordin admitted to destroying all of his emails two weeks prior to retiring (Bordin 45: 3— 8).Chief Bordin went on to state Deposition that I purposefully didn t keepa lot of stuff. “1 didn t want to bein a situation like this, and have it used against the or myself’ (Berdin DepOsition 38: 19-25). County, Chief Bordin further acknowledged that by the time he had deStroyed the information he was ’ already aware of this lawsuit (Bordin Deposition 41: 12-14). Additionally, Chief Bordin indicated that he destroyed text messages between himself and with assistant Chief Lynch noting that ‘I delete all my conversatibns when 1 m done with them” (Bordin Deposition 123: 2- . . 7) As Plaintiff has noted: . . Destruction of evidence relevantto proof of an issue at trial can support an, inference, that the evidence Would have been unfavorable to the party responsible for its destruction. In order for an adverse inference to arise from the destruction of evidence, the party having control A over the evidence must have had an obligation to preserve it at the time it was destroyed. In addition ”the party seeking the benefit of' an inference from spoliation mUSt demonstrate first that the reCords were destroyed with a cu1pable state of mind (i.e. where, for example, the 1 records were desttbyed knowingly, even if without intent to violate [a] regulation [requiring their retention], or negligently). Second, a party must show that the destroyed records were relevant to the party' s claim or defense But, [‘there will typically be no way of telling what the wOuld have how much it would have weighedin the precisely evidence shOwn and ‘0, spoliation victim's favor”, citing Cedars-Sinai Medical Center Super 12' 10) Court 18 Cal. 4‘h l, 14] (Reeves v. M V T1anspo;Iatzon,~ Inc. (2010) 186 Cal.App.4th 666, 681- 682) A defendant is not under a duty to produce testimony adverse to himselfibut if hefails to produce . evidencethat would naturally have been produced he must take the risk that the trier of fact will ‘ infer, and properly so, that the evidence, had it been preduced, would have been adverse” (Williamson v. Superior Court of Los Angeles County (1978) 21 Cal. 3d 829, 836 fn. 2). Thereis a long line of authority including Evidence Code 413, and CACIJury instruction 204 dealing with the spoliation of evidence. 1t15 reasonable to infer from these authorities that a litigant has a duty. to, at a minimum, preserve evidence once the litigant has been made of the Thus, Chief aware lawsriit. had a duty not to destroy the emails. - Bordin ' Regarding the text messages with Lynch,“ is unclear as to when those text messages were destroyed - in relation to the lawsuit. F01 the purposes of this motion. the Court finds there is a triable issue of fact that exists as to had a duty not to the texts at the time he whether Chief Bordin delete deleted them.. - a 1 - I As to the, stateof mind element, Chief Bordi'n’s statement that he destroyed 'the‘emlailsso that they . weren’t used against the County or himself, is significant. It shows a culpable state of mind.' - Although he later back track on that statement, that bell cannot be attemptS'to ;un-r11ng-. i Finally, as to the relevance argument, as noted in the Cedars- Sinai case referenced supra, it is - impossible to know ifthe informatiOn Chief Bordin destroyed contained relevant information or not.-' _ In struggling with this problem, the Court 1svery concerned with the, representation made by Chief ’ - Bordin that informatidn wasgdestroyed so that it co'uld'not be us‘ediagainst'the County or himself. In the Court’sview, this statement is evidence thatthere may: be infonnatiOn that is relevant, , _ The Court nOtes that typically, spoliation issuesare questions for the trier of faCt to consider. ' ' cAc1 204: V You may consider whether one party intentionally concealed or destroyed evidence If yOu decide that a party did so you may decide that the evidence would have been unfavorable to that party. 3. Summary Judgment Courts view the evidence on Summary. judgment, including all reasonable inferences supported by' that evidence in the light most favOrable to the non1n0ving party (Ventura Keste1,LLC v Folksamerica Reinswance C0,, (201 3) 219 Cal App.4th 633, 640).- In light of the court 5 .determination that the spoliation rule18 applicable here, the Court finds that1n the context of this motion, and1n viewing all inferences1n the light most favorable to Plaintiff, the implicatiOn1n , applying the spoliation doctrine15 that the Court will, for purposes of this motion, make adverse inferences based on the destruction of evidence. Specifically, as noted, Chief Bordin was the ultimatedecisibn‘ maker as to several employment decisibns that are the subject of this lawSuit As to these decisions, which pertain to Chief Bordin, the COurt is inferring that the destroyed information contained evidence supporting a finding of discriminatory animus as to the diScrimination cause of action, and a causal link betVveen the protected activity and the adverse employment action as to the retaliation eatises cf action. To be ‘ clear, this islimited to the _de'cisionsfor which Chief Bordinwas the ultimate decision maker . As to each cause of actidn,‘ the Court provides the following analyzes. A. First Cause of Action - Sex Discrimination There is a three stage burden shifiing test for discrimination claims. First, Plaintiff must prove that she is part of a protected class; second, was qualified for the position she sought or was performing competently in the position she held; third, suffered an adverse employment action; and fourth, the employer treated similarly situated employees outside of the protected class more favorably (Gut~ v. ' Bechtel National, inc. (2000) 24 (3211,4111 317, 355). Program Manager Position 2016 .I . - Here it is undisputed that this position Was awarded to a female, Jennifer Hard (see UMP 74). A Consequently, Plaintiff cannot establish a prima facie case for sex discrimination as it pertains to this ' position because the person treated more faVOrably was not outside the protected class. '1 ReasSigriment to Placement Unit The Court finds that as to this employment decision, no. adverse employment action occurred. Not every change in conditions of employment constitutes an adverse employment action. A change that is merely Contrary to‘the cmployees’ interests or not to the employee’s liking isinsufficient. Workplaces are rarely idyllic‘retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omissiOn to the level of a materially adverse employment action (Ma/01‘s v. Los Angeles City Fire Dept- (2007) 150 Cal.App;4th 350, 357). Here, Plaintiff does not dispute that her salary did net decrease as a result of the reassignment. Plaintiff‘s attempt to argue that she was adversely affected by the reassignment indicates that she was displeased with the assignment, which as Malais notes is an basis for establishing insufficient and adverse employment deCision. I Assistant Chief Positionin October 2019 ‘ As to the Assistant Chief position Defendant has provided evidence that she never applied (See UMF 112). Plaintiff‘s position is ostensibly that she didn t apply because she was not provided an opportunity to do so, otherwise she would have. Thus, theoretically, Plaintiff Was denied an opportunity at theposition by not being made aware of the position. However, the Court notes that UMP, 112 also provides that an invitation to apply was emailed to the entire department. does not directly address whether she received that entail. Plaintiff's response The Court finds Plaintiffs declaration that she would have applied if given the opportunity to do so is vague and does not specifically address the factualissue that the email was sent the ‘ to entire department." -rm In light ‘of these circumstances, the Court finds that it is undisputed that Plaintiff did not apply, and 1 ’ that Plaintiff didnot specifically the fact that the email was sent to the entire department. dispute Consequently, there15 no triable1Ssue of fact that Plaintiff did not apply for the position despite the fact she was on notice. As a result, the Court finds that no adverse action employment occurred . because Plaintiff never applied despite receiving notice - 5 Program October 2020 Manager This position was also awarded to a female (See UMF 121). Thus asdiscussed above Plaintiff cannot establish a prima facie case as to this decision I. the Juvenile Position Superintendent of 1114111 Unlike the other employment decisions, the Court finds that the only element1n dispute as to ,1 this position is whether Defendant treated Plaintiff differently because of her sex,- ' After a defendant meets the burden of showing legitimate non~discrirninat01y reasons for the alleged. : misconduct, a plaintiff has the burden to present evidence showing: (1) that the defendants reason for not renewing her centtact Was pretextua1;(2) the defendant acted with a discriminatory animth 1n . _ 'not renewing her contract; or (3)11 combination of the two (Swanson v. MorOngo Lni/ied School ‘Dzsn1c: (2014) 232 Cal. 4th 966) App 954, 1' The Court notes for. the parties that the spoliation' inferencedoes not apply hereas this decision Was . made by Chief Barley, not Chief Bordin. Here the County has met its burden of showing a non-_ Pinocchio— he ranked better duringthe ‘ disoriminatory reason for awardingthis position to Mr. interview process and was more qualified than Plaintiff for the particular position (see UMP 129- 132). Thus, the burden shifts to Plamtiff to show that Defendant 8 reasons were pretextual or that ‘ Defendant acted with a discnmmatory animus . In Pla1nt1ff s declaration, she asserts that shortly before the position Was posted, the reviewing minimum requirements were Changed so that a bachelor’s degree was not required Mr Pinocchio, who Was awarded the position, did not have a bachelor 5 degree Plaintiff ostensibly contends that based on the circumstances that she had a 3 Was not a fair shOt and Mr degree she given , bachelor PinocChio Was preselected If a tactfinder canconclude that a reasonable employer would have found the Plaintiffto be significantlybetter qualified for the job, but this employer did not, the fact finder can legitimately , infer that the employer Consciously selected a less qualified candidatc— something employers do not usuallydo, unless some other strong consideration, such as discrimination, is in the picture (Reeves v. MV Transportation, Inc. (2010) 186 Cal App. 4th 666, 674- 675). I While not all cases hold that -‘the 'd1spar1ty1n candidates qualifications must be so apparent as to jump off the‘upage and slap us in the face to support the finding of pretext, the precedents do I censistently require that the disparity be substantial to support an inference of discrimination. _ v.MV Transportation, Inc. (2010) 186 Cal. App. 4th 666,675). (Reeves 11IS fair to say that a degree, or lack thereof, does not automatically. indicate a substantial disparity in candidates? qualifications. Obviously, this analysis depends on the type of job However, for purposesof this motion, the Court finds Plaintiff has met her burden of establishing a triable 1ssue of fact a Plaintiff ' by presenting circumstantial evidence that the position previously required degree. , ' had a degree, but then the qualifications were subsequently changed to not require a degree. This circumstantial evidence, along with some of the other evidence presented by Plaintiff alleging a hostile werk environment towards women, as well as the fact that Plaintiff had already made a I formal complaint prior to this job posting, presents a question of faCt as to whether. the reasons by the County concerning to hire Mr. merely a for a proffered their decision Pinocchio was pretext discriminatory motive. 4 out of the 5 employrrient decisions that Plaintiff has placed at issue in this case I Thus, although appear to be insufficient to establish a prima facie case for d1scnm1nat1on as no triableissues of fact - . exist, there1s one decision Where triableissues of fact exist. A plaintiff who has pleadeda cause of action on either of two theories will not be subject todefeat. by summary judgment where defendant has established by an un'contradiCted affidavit that one of the V " two theories, but not necessarily the ‘other, cannot be established. Defendant has the to rule ' burden out all pessible merit(Cox 1'.State, 3 Cal. App. 3d 301, 310) As we cannot parse out the different theories of the cause of aetion the Motion as to the First Cause of Action for Sex D1scr1m1nat10n1s DENIED. ‘ B. Action -- Second Causelof Retaliation A - A prima facie case for retaliationrequires the plaintiff to show: (l) he or she engaged1n a ‘protected ' activity’; (2) the employer subjected the employee to an adverse employment action; and (3) a causal -: ' link existed between the protected activity and the employer’s action. once the employee establishes a prima facie case, the employer is required to offer a legitimate nonretaliatory reason If the employer for the ' . for the adverse employment action. produces a legitimate reason adverse ' emplbyrnentaetion, the burden shifts back to the employee to prove intentional retaliation (Yanowitz v. L'Oreal USA Inc (2005) 36 Cal 4th 1028 1042). I ' 2016 Program Manager Position ' As noted, this position was given to another female HoWever, in the context of retaliation this does not automatically negate the claim because does require a person was retaliation not that favored the scope of the class. . outsrde (The Defendant claims there15 no evidence that Chief Bordin', the ultimate decision makerin this instance, knew about the alleged between Rogers and incident the Plaintiff. The incident 111 which . if Rogeis allegedly suggested the Plaintiff provide him a ‘.‘blow job’ the Plaintiff did not because it to other than report anyone Lynch The Court reincorporatcs itsanalysis as to the spoliation Of evidenceissue discussed supra Based ‘ on thespoliation analysis, the Court, for the pin-poses of this motion only, 15 inferring the spoliation " of evidence by Chief Bordin adversely to the Defendant. Specifically, the COUTI findsthat a trier of fact could find that there was evidence indicating that Chief Biordin‘ knew of the Rogers incident and the fact the Plaintiff reported it to Lynch prior to Chief Bordin s decision as to the program manager position Additionally, the Court notes that it is undisputed that Chief Bordin admitted to referring ' to the Plaintiff as “mean Julie” in a meeting. Thus, the Court finds a triable 1Ssue of fact exists as to themm: of intentional retaliation and this position. _ - ‘ In light of the Court 5 finding that a tnable1Ssue of material fact exists as to the retaliation cause of 1 actiOn‘ and the 20l6 program manager position, the Court declines to delve into the remaining > employment decisions as to this cause of action. As noted, ifany viable theory exists as to a cause ‘ of action summary must be - judgment denied. The Motion as to the Second Cause of Action for 81:11 DiscriminationIS DENIED. C Third Cause of Action Hestile Work Environment 7 ' Hostile work environment requires; ( l) plaintiffIS a member of a protected class; (-2) plaintiff was subjected to unwelcome harassment, (3) the harassment was based on Plaintiff-s protected status; (4) . the harassment unreasonably interfered with Plaintiff‘s work performance by creating an 1 intimidating, hostile. or offensive work environment; and (5) defendants are liable for the harassment (Ortiz v. Dameron Hospital A5311" (2019) 37 App 5th 568, Cal. 581). ’ .Government Code Section 12923 provides: (b) A single incident cf harassing conduct is sufiicient to Create a triable issue regarding _ the existenCe of a hostile work environment if the harassing'conducthas unreasonably . interfered with the plaintiff's werk performance or created an intimidating, hostile, or offensive working environment. Here, the Rogers incident at a minimum representsa triableIssue of factas to whether that incident ' alone18 severe enough toestablish a hestile work environment. Further, there is no doubt that the > Rogers incident, it believed to be trite by a trierof fact,is objectively offensive. --At a minimum combining the Rogers incident with other'allegations made by other witnesses . ' indicating that women were sizbje’cted to comments such as 'Team Titty” and the Plaintiff being . have no place beingin such a high profile position, and that l wOuld fail ’ informed by a supervisor that a co-worker,Mark Cole, said that as it relates to Plaintiff, “that women (Declaration of Plaintiff, 23- 25. 5: 21-24), is enough for this cause of action to surviVe 3 summary judgment , Motitm as to the Third Cause Sex IS DENIED. The of Action for Discrimination D. Fourth Causeof Action — Fa1lure to Prevent Discrimination V The Defendant s sole argument for summary judgment hereis under the theory that the proceeding causes of action necessarily fail. In light of the Court 5 ruling, the motion is denied as to this cause of action as w.ell 1. Failure to Administrative Exhaust Remedies Additionally, the Defendant argues the Plaintiff‘s claims for failing to promote and being reassigned are barred because she did not timely file a DFEH claim. Specifically the Defendant argues the . Platntlff did not timely file a DFEH Complaint regardingher discrete retaliation claim arising out of her retaliation claim arising out of that incident the Program Manager in and . Position October 2016 must be dismissed. 1 Here the Court finds Yanowitz v. L ’Oreal USA, Inc, (2005) 36 Cal 4‘h 1028 to be on point The Court noted that the statute should not be read to force upon an employee the unappealing choice of resigning at the first s1 gn of discrimination or (in the other hand persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful. Yanowitz dealt with allegations that were both outside the time limitations period, as well as ‘ allegations within the time limitations period and found that there was not a separate discrete act of retaliation, rather there were allegations of separate retaliatory acts Suchis the case here, as the Plaintiff alleges acts of retaliation from 2016 through the filing of the lawSuit. As to the seanl harassment/hostile work environment allegations, those allegations also appear to have continued (See Plaintiff 5 Material Fact 16) . . Finally, the Defendant argues that the Plaintiff's claims for failing to promote, being reassigned, and harassed by Mike Rogers are barred because she did not file a DP EH complaintas to those claims. . H011 ever. Defendant cites no authority requiring P1a1nt1fi‘ to articulate every single fact1n support of her claim nor every single incidentin suppbrt of her claim. The Medix Ambulance case cited by the Defendant dealt with a situation where Plaintiff failed to name a partyin the FEHA claim but subsequently attempted to name that patty in the lawsuit That 18 not the situation here Plaintifi shall prepare and submit a form of order consistent with this ruling. : Dated: April 21 ,Izozz MOLLY mint: v n’flrarn nut BibELow Judge of the‘Su'perior Court