The Motion for Summary Adjudication is DENIED. Plaintiff is to give notice.
1st C/A – Issue 1
The 1st cause of action under the California Equal Pay Act, is subject to a McDonnel-Douglas burden shifting analysis. (See CACI No. 2740-42, at Sources and Authorities; Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 626; Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 323–324, Lab. Code §1197.5(a)(1)(D) as effective in 1/2016, and onwards.)
The motion as to this cause of action is DENIED.
Defendant argues that the cause of action fails, because Plaintiff did not perform substantially similar work as other directors. The test is “substantially similar work” “when viewed as a composite of skill, effort, and responsibility” (Lab Code §1197.5(a)). This description suggests a pretty factual inquiry to begin with. The Motion itself does not present enough information about the scope of the job, to support adjudicating the issue (See Material Facts 1 to 28.) Also, “substantially similar” is not the same as identical so there is some breadth here. According to Plaintiff, she was able to do most of the Director’s job including reaching into the “license-required” portions, by preparing the “Medi-Cal” documentary work for Mr. Brosch to sign. (Romero Opp. Dec. p. 129.) While some of the evidence in Plaintiff’s AMF No. 3 is misreading the testimony, some of the deponents did in fact testify that Plaintiff did a similar job as her predecessor (e.g., Opp Ex. M; Ex. O; Ex. D; Ex. F; Ex. L.) The Court cannot resolve these factual disputes on a motion for summary adjudication.
Regarding the defense under section 1197.5(a)(1)(D), Defendant meets the initial burden to establish that a bona-fide factor other than Plaintiff’s sex accounted for the salary difference (see Romero Dep. p. 117-19, 121-22, 122-26,129-30, 136-37, 143; Cropp Decl. ¶ 5; UMF 9, 13, 18-20, 26, 27; Cropp Dec. ¶ 8; Moving Exhibit 2.) Plaintiff cannot “walk away” from the candid statements made in deposition about the licensing aspect of the Director’s role. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.) And “objections” are not properly made in a separate statement. (See CCP §437c(b)(3) and CRC 3.1350(f)(2); Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 CA4th 1, 8–9; CRC 3.1354 Public Utilities Com'n v. Superior Court (2010) 181 Cal.App.4th 364, 376 n.9.)
However, the defense can be overcome by showing that an alternative business practice exists that would serve the same business purpose, without producing the wage differential. (Lab Code §1197.5(a)(1)(D).) The Court must construe the opposing evidence liberally on this matter, and draw inferences favorable to the Plaintiff. Doubts and conflicts in evidence are resolved in favor of the opposing party at this time. (See Comm. to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260; McCabe v. Am. Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.)
Plaintiff testifies that a former director, Mr. Van Camp, utilized another clinician to perform the work that entailed signing-off for Medi-cal records that required a license. (See Plff Dec ¶ 11 and Opp Romero Dep. p. 125-126.) If so, then the Court has a triable issue of fact regarding an alternative practice. The Court cannot resolve a factual issue at this time.
2nd C/A – Issue 2
The retaliation provision of Labor Code § 1197.5 was formerly in subdivision (j)(1) and (2) in 2016, and it appears to be the same as the current subdivision (k)(1) and (2). The CACI instruction draws from the cases on FEHA to discuss this claim (see CACI No. 2743, notes.) The Supreme Court has said that a prima facie case of retaliation generally entails the following:
(1) plaintiff engaged in 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. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042-43.) Defendant is primarily challenging the first factor here.
The motion as to this cause of action is DENIED.
Defendant relies on what appear to be the same Material Facts 1 to 28 to support the motion directed to the 2nd cause of action as with the 1st. It appears that all 28 facts may not be material to the retaliation issues.
(See Cal. R. Ct. 3.1350(d)(2).) There is a triable issue shown in relation to Fact No. 25 (aka No. 53) at this time. Plaintiff states that she complained to upper management about the fact that she was not being paid the full $80,000 like the other directors had been (see Romero Decl. ¶ 20, 21, see also Opp. Exhibit B, K.) As such there are disputed facts in relation to Fact 25 that precludes the grant of summary adjudication. The Court does not weigh the credibility of plaintiff’s statements, nor does it weigh the statements, against the written evidence in Exhibits I and J at this time. These are determinations for the trier of fact to make.
5th and 6th C/A - Issues 3 and 4
According to the Motion, the California equal pay statute in Labor Code § 1197.5, is nearly identical to the federal Equal Pay Act, in 29 USC § 206(d)(1). (See Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 n.4 (noting “Because Labor Code section 1197.5 is substantively indistinguishable from its federal counterpart, California's courts rely on federal authorities construing the federal statute.”) Therefore, it is argued that the Court should grant the motion in favor of Defendant on the federal-law claims to the same extent as the state-law claims. (Motion, p. 8-9.)
The motion as to these causes of action is DENIED.
Because the Court is denying the motion in relation to the state-law claims above, it affords the same treatment to the federal law claims, based on the arguments presented.
7th C/A – Issue 5
Defendant raises the same grounds and relies on the same Facts 1 to 28 to support this issue as the others. The facts are renumbered as 113 to 140.
The motion as to this cause of action is DENIED.
As noted, Plaintiff has offered evidence creating a triable issue regarding Fact 25 which is numbered as 109 here. Having tendered this fact as being material for disposing of the 7th cause of action, the Court denies the motion on this basis. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (“Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied”).)
Defendant’s Evidentiary Objections
Overrule 1 to 8, 10, 11, and 14. Sustain 9 as to the portion reading, “I was docked $6,000 per year”. Sustain 12 as to the portion reading “began to retaliate against me.” Sustain 13 as to portion reading, "for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”