Mack v. City of Hawthorne
Filed 7/5/13
Mack v. City of Hawthorne CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
MARJORIE MACK et al.,
Plaintiffs and Appellants,
v.
CITY OF HAWTHORNE et al.,
Defendants and Respondents.
B238094
(Los Angeles County
Super. Ct. No. BC433745)
APPEAL from
orders and a judgment of the Superior Court of
County, Elizabeth Allen White, Judge.
Affirmed.
Law Offices
of David Peter Cwiklo and David Peter Cwiklo, for Plaintiffs and Appellants.
Liebert Cassidy
Whitmore, Jeffrey C. Freedman and Meredith G. Karasch, for Defendants and
Respondents.
I. INTRODUCTION
Plaintiffs,
Marjorie Mack and Shannon-Joy Gossett, appeal from the trial court’s orders and
judgment in favor of defendant City of Hawthorne (the city). They argue it was error to grant the city’s
motion for summary adjudication of
their race and gender discrimination claims.
Plaintiffs also contend the trial court erred in granting the city’s nonsuit
motion on the retaliation claim. In
addition, plaintiffs challenge the trial court’s evidentiary rulings before and
during trial. We affirm the orders and
judgment.
II. BACKGROUND
A. First Amended Complaint
Plaintiffs sued the city, Jag Pathirana,
Robert O’Brien, Hamid Pournamdari, Larry Guido, and Steven Romero asserting
claims for:
discrimination; hostile work environment, racial, gender, disability harassment;
and intentional infliction of emotional distress. Plaintiffs were African American female
employees of the city’s housing department.
Ms. Mack was a housing specialist.
Ms. Gossett was a Section 8 housing inspector.
Plaintiffs alleged the city discriminated
against two other African American female employees, Cheryl Williams and Rose McKinney. At her April 16, 2008 deposition, Ms.
McKinney identified Ms. Gossett as an eyewitness to the city’s racial
discrimination and retaliation against African American females. In June 2008, the city, through fraud
investigator Roberto Chavez, began investigating plaintiffs for fraud and
misconduct. On March 17, 2009 criminal
charges were filed against plaintiffs for fraudulently filing a forged Section
8 housing list and subsidiary vouchers.
On March 26, 2009, the city notified plaintiffs they would be placed on
unpaid leave because the “charges relate to the core functions of [their]
employment.†Plaintiffs claimed the
investigation and constructive termination were based on racial, gender and
disability discrimination. They also
alleged the city retaliated against them because they were identified as
witnesses in the McKinney case.
The individual defendants were later
dismissed. The only remaining defendant
was the city. Plaintiffs’ remaining
claims were for retaliation, racial, gender, and disability discrimination, and
harassment.
B. City’s Motion for Summary Adjudication
On June 16, 2011, the city filed a
retaliation, race, gender, and disability discrimination, and harassment
claims. The city argued plaintiffs
failed to establish a causal connection between a protected activity and the
adverse employment action. Also, the
city contended there was no causal connection between plaintiffs’ race,
disability or gender and the city’s investigation and suspension. The city argued it had a legitimate
non-discriminatory reason to investigate plaintiffs and place them on
administrative leave. The city
argued: Mr. Chavez and Mr. Romero
investigated plaintiffs based on a complaint from Rene Mayorga, a member of the
public, and not by unlawful animus; the investigators determined plaintiffs
manipulated the Section 8 waiting list in an illegal conspiracy to mutually
exchange subsidized housing benefits; Ms. Mack was negligent in her job; and
Ms. Gossett filed an inspection report on a friend’s apartment which she did
not inspect. Furthermore, the district
attorney’s office separately filed criminal charges against plaintiffs. Mr. Pathirana and Mr. O’Brien placed
plaintiffs on administrative leave only after criminal charges were filed
against plaintiffs. The city argued the
criminal charges filed against plaintiffs by the district attorney’s office
showed plaintiffs’ suspension was not arbitrary. In addition, the city contended plaintiffs
could not establish harassment because personnel decisions did not constitute
harassment.
In support of its
submitted the declaration of Roberto Chavez.
Mr. Chavez was the city’s Section 8 housing fraud investigator from
mid-2007 until September 2010. On June
26, 2008, Mr. Chavez received a voicemail from Rene Mayorga who reported that
his girlfriend was violating the rules for her subsidized housing. Mr. Chavez telephoned Mr. Mayorga back the
same day. Mr. Mayorga stated “Madric
Mack†was accepting $500 gift cards in exchange for moving clients up on the
waiting list. Mr. Chavez reported his
conversation with Mr. Mayorga to Hawthorne Police Sergeant Steven Romero.
Mr. Chavez questioned Mr. Mayorga’s motive
so he conducted a further investigation.
Mr. Chavez reviewed the current waiting list for the Section 8 housing
vouchers and noticed Mr. Mayorga, his girlfriend, and members of his
girlfriend’s family had all received Section 8 rent subsidy vouchers. They were all listed close together and close
to the top of the waiting list. Mr.
Chavez believed the timing was suspicious because they had applied in April
2007 and received benefits by November 2007.
In Mr. Chavez’s experience, applicants typically waited for many years
before receiving Section 8 housing benefits.
Mr. Chavez, his colleague, Guido Fernandez,
and Sergeant Romero interviewed Mr. Mayorga’s girlfriend, Idalia Linares. Ms. Linares stated her aunt and apartment
manager, Carolina Hernandez, told her to give Ms. Mack a gift card and Ms. Mack
would “hook her up.†Ms. Linares stated
Shannon Gossett knew what was going on and inquired whether Ms. Linares had
given a gift card to Ms. Mack. Ms.
Hernandez told Ms. Linares that Ms. Linares’ mother, grandmother, and the
assistant manager of the apartment, Herlinda Gonzalez, were all giving Ms. Mack
gift cards to get Section 8 housing benefits.
Ms. Gonzalez, stated Ms. Hernandez told her “Ms. Mack was going to hook
them up.†At the time Ms. Hernandez and
her relatives applied for benefits, Ms. Mack was in charge of the Section 8
housing eligibility list. Ms. Gossett
assisted Ms. Mack with the Section 8 housing list.
Ms. Mack admitted during an interview with
Sergeant Romero and Mr. Chavez that her daughter lived in an apartment complex
managed by Ms. Hernandez that was subsidized by the Southern California Housing
Development Corporation. Ms. Hernandez
managed the waiting list for Southern California Housing Department
Corporation. Ms. Gossett admitted in an
interview with Sergeant Romero and Mr. Chavez that she sent a rental
application to Ms. Hernandez on behalf of her husband. She sent the application on the city’s fax
cover sheet while conducting an inspection of Ms. Hernandez’s apartment
building. Her husband was in a
psychiatric ward at the time Ms. Gossett submitted the application.
Mr. Chavez audited Ms. Mack’s case files and
found various discrepancies. In
particular, Mr. Chavez found discrepancies in Safiu Sanusi’s file. Mr. Sanusi was the brother-in-law of Peter
Ojo, a former city housing specialist who was Ms. Mack’s friend. Mr. Sanusi failed to update his application
by September 30, 2006 but he was not removed from the Section 8 waiting
list. Although Ms. Mack sent a letter
notifying Mr. Sanusi that he had been selected for Section 8 benefits on
October 30, 2006, Mr. Sanusi did not submit his application until October 31,
2006. Ms. Mack issued Mr. Sanusi a
voucher on November 2, 2006 without conducting the required background or
credit report check. Ms. Mack allegedly
did not complete a background check on Mr. Sanusi until after her meeting with
Mr. Chavez and Mr. Pournamdari in January 2007.
At the time Mr. Sanusi received his voucher,
he was number 408 on the Section 8 waiting list. Many other applicants who were ahead of Mr. Sanusi
on the Section 8 waiting list were skipped over by Ms. Mack. One applicant, Sheryl Miller, applied for
section 8 benefits on January 30, 2004 and was number 29 on the September 13,
2006 waiting list. Ms. Miller received
a December 8, 2006 letter from Ms. Mack notifying her that she was number 76 on
the waiting list. Ms. Mack informed Ms.
Miller that she likely would be on the waiting list for five years.
Mr.
Chavez also investigated Ms. Gossett concerning her failure to inspect a
Section 8 apartment. An apartment owner,
Jacqueline Kelly, reported Ms. Gossett did not inspect the unit she owned
before it was leased to Andrea Simpson, the sister of Ms. Gossett’s boyfriend. Also, Mr. Chavez found Ms. Simpson appeared
number two on the waiting list because plaintiff entered an incorrect
application submission time into the housing department’s computer system.
Mr. Chavez discussed his investigation with
Sergeant Romero, colleague Guido Fernandez, and housing department head Hamid
Pournamdari. Mr. Chavez kept city
manager Jag Pathirana informed of the status of his investigation but did not
share with him the details of the investigation. He did not discuss the investigation with
human resources manager Robert O’Brien.
Once Mr. Chavez and Sergeant Romero had enough evidence, they discussed
the matter with Los Angeles County deputy district attorney Renee Urman. Ms. Urman later filed criminal charges
against plaintiffs. Mr. Chavez was not
aware of the McKinney lawsuit until well after his investigation of
plaintiffs. He did not know plaintiffs
were listed as witnesses in the McKinney case or that they attended Ms.
Kinney’s civil service commission hearing.
Besides Mr. Chavez’s declaration, the city
submitted a declaration from Police Lieutenant Steven Romero. During the relevant time of the
investigation, he was a sergeant with the Crime Free Multi-Housing Division in
the Hawthorne Police Department.
Sergeant Romero worked with Mr. Chavez to investigate Section 8 housing
fraud. In July 2008, he received
information from Mr. Chavez that plaintiffs had committed fraud by accepting
bribes from Section 8 applicants. Mr.
Chavez reported Rene Mayorga stated his former girlfriend, Idalia Linares, had
given Ms. Mack a gift card in exchange for a Section 8 voucher. On July 11, 2008, Sergeant Romero spoke with
Ms. Linares at the Hawthorne Police Department.
Ms. Linares stated her aunt Carolina Hernandez told her to give Ms. Mack
a gift card to get Section 8 benefits.
Ms. Linares personally spoke with Ms. Mack and agreed to give Ms. Mack a
gift. But Ms. Linares later did not give
Ms. Mack the gift card because she thought Ms. Mack was rude towards her.
In an interview with Sergeant Romero and Mr.
Chavez, Ms. Hernandez admitted she told Ms. Linares to give Ms. Mack a gift as
a token of appreciation, but not as a condition for receiving benefits. Ms. Hernandez advised Ms. Linares not to give
the gift in front of others to avoid being accused of “paying off†Ms.
Mack. Ms. Hernandez confirmed Ms. Mack’s
daughter lived in an apartment managed by Ms. Hernandez. She denied having a personal relationship
with plaintiffs but admitted she invited them to lunch outings because they
assisted Ms. Hernandez’s tenants to receive their Section 8 benefits
faster.
The city also submitted the declaration of
Hamid Pournamdari, the director of the city’s housing department. Mr. Pournamdari supervised Ms. Mack and Ms.
Gossett when they worked at the housing department. He supervised and appointed Roberto Chavez as
the fraud investigator in 2007 because Mr. Chavez had investigated Section 8
applicants when Mr. Chavez was a housing specialist. Mr. Pournamdari did not open the position to
other applicants because the city rules permitted him to fill the position
without an open recruitment process.
In 2007, Mr. Pournamdari met with Ms. Mack
and Mr. Chavez about Mr. Sanusi’s Section 8 voucher. Ms. Mack failed to verify bank information
when issuing the voucher. Ms. Mack later
provided him with the needed information.
Mr. Pournamdari was not aware Mr. Sanusi was number 408 on the waiting
list. Ms. Mack and Ms. Gossett
complained Mr. Chavez harassed them. Mr.
Pournamdari determined plaintiffs felt Mr. Chavez harassed them because Mr.
Chavez checked their work. But it was
Mr. Chavez’s job to check and audit the work of other employees. Mr. Pournamdari was aware of two complaints
concerning Ms. Gossett’s failure to inspect apartment units.
In June 2008, Mr. Chavez told Mr.
Pournamdari of his conversation with Rene Mayorga, a Section 8 program
participant. Mr. Mayorga alleged Ms.
Mack was moving people toward the top of the housing department’s eligibility
list for Section 8 housing in exchange for gift cards. Mr. Pournamdari asked Mr. Chavez to
investigate the matter. At that time,
Ms. Mack was in charge of the Section 8 waiting list and Ms. Gossett helped her
with the list. Mr. Pournamdari did not
speak to the district attorney’s office about the investigation until the
criminal complaint was filed. He also
was not involved in the decision to place plaintiffs on unpaid leave.
In addition, the city submitted the
declaration of Jag Pathirana in support of its summary adjudication
motion. Mr. Pathirana was the city
manager from 2006 through 2010. As the
city manager, he was the executive director of the city’s housing
authority. He did not remember seeing
Ms. Mack or Ms. Gossett at Ms. McKinney’s civil service commission
hearing. In addition, Mr. Pathirana knew
about the McKinney case but was not aware plaintiffs were witnesses in that
case. He has not seen the witness list
in the McKinney case, has never read Ms. McKinney’s deposition, and plaintiffs
never told him they were witnesses in that case. In mid-2007, Mr. Pathirana discussed creating
a fraud investigator position with Mr. Pournamdari. Mr. Pournamdari suggested Mr. Chavez would be
a good investigator because Mr. Chavez was already doing a significant amount
of fraud investigations. Mr. Pathirana directed
human resources manager Robert O’Brien to create a job description for the new
position, which was later approved by the city council.
In 2008, Mr. Chavez informed Mr. Pathirana
about his investigation of plaintiffs based on complaints from a member of the
public. Mr. Pathirana and Mr. O’Brien
reviewed Mr. Chavez’s report after Mr. Chavez completed his investigation. Mr. Pathirana and Mr. O’Brien did not think
there was enough evidence at that time to take disciplinary action or to go to
the district attorney. But, Mr. Chavez
and Sergeant Romero stated there was information they could not share that
would be presented to the district attorney.
Later Mr. Pathirana spoke to Police Chief Heffner and Sergeant Romero,
who provided more information. After the
conversation, Mr. Pathirana believed the case was strong enough to bring to the
district attorney’s attention. However,
Mr. Pathirana never spoke to the district attorney’s office about the
matter. He received a copy of the
criminal complaint after it had been filed.
Mr. Pathirana declared he concurred with the decision to place
plaintiffs on leave solely because of the job-related criminal charges filed by
the district attorney’s office.
The city also filed a declaration from
Robert O’Brien, the city’s human resources manager. Mr. O’Brien stated in 2004, his office
received two Equal Employment Opportunity Commission (EEOC) complaints from a
housing department employee Cheryl Williams.
She alleged her supervisor, Harold Roth, had harassed, discriminated and
retaliated against her. The city
mediated Ms. Williams’ second claim through the EEOC and reach a
settlement. In November 2006, Ms.
Gossett complained to the EEOC that she was not receiving pay equal to a male
housing inspector. The city settled with
Ms. Gossett and adjusted her salary.
In February 2007, Mr. O’Brien met with Ms.
Gossett, Twanna Manago-Robinson and Quila Lewis. Ms. Gossett stated she had recently met
Congresswoman Maxine Waters’ staff to discuss the city’s unfair treatment
towards her. Ms. Gossett believed she
and other African American females who attended Ms. McKinney’s civil service
hearing suffered from retaliation. Ms.
Gossett complained she was not offered the opportunity to compete for a housing
inspector position when she was on medical leave. In addition, Ms. Gossett stated the city did
“little†things to make her feel uncomfortable such as providing her with a
vehicle that had a malfunctioning air conditioner. But Ms. Gossett acknowledged she raised those
issues before the McKinney hearing and the city had resolved them. Ms. Gossett then stated she should be
compensated at the same rate as the current housing inspector. However, Ms. Gossett admitted the city had
sent her a draft settlement agreement to resolve the compensation issue.
Mr. O’Brien stated he had no involvement in
the McKinney case, which he first heard about in 2008. He has neither seen the witness list nor read
Ms. McKinney’s deposition. Mr. O’Brien
was not aware plaintiffs were identified as witnesses in the McKinney
matter.
In mid-2007, Mr. Pathirana asked Mr. O’Brien
to prepare a job description for a Section 8 housing fraud investigator. The first candidate for the fraud
investigator position could be appointed without opening up the position to a
competitive recruitment process. Mr.
Pournamdari appointed Roberto Chavez to the position with Mr. Pathirana’s
approval. In 2008, Mr. O’Brien met with
Mr. Chavez about Mr. Chavez’s investigation of plaintiffs. Mr. O’Brien did not think there was enough
evidence to take disciplinary action but he did not review the criminal report
prepared by Mr. Chavez and Sergeant Romero.
He did not speak to the district attorney’s office about plaintiffs and
received a copy of the criminal complaint against plaintiffs after it had been
filed in court. On March 26, 2009, Mr.
O’Brien sent each plaintiff a letter suspending them without pay based on the
criminal charges filed by the District Attorney.
The
city also submitted a certified copy of the March 17, 2009 felony complaint
alleging 11 counts against plaintiffs, Carolyn Hernandez, Herlinda Gonzales and
Virginia Anna Molina. At the preliminary
hearing, the trial court dismissed all but three of the counts. On August 5, 2010, the criminal case was
dismissed based on: “Delay- action not
brought to court in time. The People
cannot announce ready for trial. The
People do not have witnesses and their witnesses have not been served.â€
In opposition to the city’s summary
adjudication, plaintiffs submitted various declarations and deposition
testimony. Plaintiffs submitted Cheryl
Williams’ two discrimination complaints against the city as “me tooâ€
evidence. Ms. Williams was an African
American female housing department employee.
Ms. Williams complained she was harassed by a white housing director,
Harold Roth. The trial court sustained
defendant’s objections to these two complaints based on hearsay.
Plaintiffs also submitted Ms. McKinney’s
declaration in opposition to defendant’s motion. Ms. McKinney was an African American female
employee who worked for the city for 19 years.
She was a legal secretary for the city’s planning department. On June 20, 2006, the city terminated her by
eliminating her position. Ms. McKinney
filed complaints against Mr. Roth and the city for racial discrimination,
harassment and retaliation. In addition,
plaintiffs submitted Ms. Kinney’s age, race and gender discrimination
complaints with the EEOC and the Department of Fair Employment and Housing
(DFEH),as well as her civil action complaint.
The trial court sustained defendant’s objection to Ms. McKinney’s DFEH
and EEOC discrimination complaints based on hearsay.
In addition, plaintiffs submitted trial
testimony from Twanna Manago in the McKinney action as “me too†evidence. Ms. Manago is an African American female
employee who works in the finance department as a senior account clerk. Ms. Manago made daily complaints to her union
representative about the everyday harassment she and other African American
co-workers faced at work. Ms. Manago
never filed a grievance because she feared Mr. Pathirana would retaliate
against her. The trial court sustained
the defendants’ objection to Ms. Manago’s testimony based on relevance.
Plaintiffs also submitted a declaration from
Ms. Gossett. In her declaration, Ms.
Gossett stated on August 9, 2006, she made a formal written complaint of
gender, race and disability discrimination to Mr. Pathirana, Mr. O’Brien and
Mr. Pournamdari which was settled on April 24, 2007. In January 2007, Ms. Gossett attended a
meeting with Congresswoman Maxine Waters and three other African American
co-workers, Rose McKinney, Twanna Manago and Quila Lewis. In February 2007, Ms. Gossett met with Mr.
O’Brien to discuss the racial discrimination, harassment and retaliation claims
she made to Congresswoman Waters. Before
Ms. Gossett was suspended on March 26, 2009, she agreed to testify in Ms.
McKinney’s case.
In addition, plaintiffs submitted Ms.
Gossett’s deposition in support of their summary adjudication opposition. Ms. Gossett testified she assisted Ms. Mack
with the waiting list in April 2007. Mr.
Pournamdari asked Ms. Gossett and Ms. Mack to give vouchers to applicants on the
waiting list even though they told him the waiting list was not ready. Ms. Gossett stated she inspected the
apartment unit that Mr. Chavez and Sergeant Romero claimed was not
inspected. Someone coming out of the
apartment building held the door open for Ms. Gossett because she was wearing
her city shirt. Once inside the
building, Ms. Gossett was able to access the unit because the carpet cleaners
had been at the apartment and left the door open. Ms. Gossett felt she was retaliated against
because Mr. Pathirana had fired her and it was “a kick to his ego†when he had
to rehire her. Ms. Gossett asserted Mr.
Chavez tried to make an African American female employee, Alvenia Nunley, “look
bad†by complaining to Mr. Pournamdari that Ms. Nunley was not doing her
work. In addition, Ms. Gossett stated
Mr. Chavez treated another African American female housing specialist, Avater
Winbourne, inappropriately by “always scrutinizing her work.†Ms. Gossett testified Ms. McClanahan was
“forced out†and sent home without pay after she had an argument with Mr. O’Brien. She also stated Tonya Harris, a housing
department employee, was laid off by the city.
Plaintiffs also submitted Ms. Mack’s
deposition in support of their summary adjudication opposition. Ms. Mack stated Mr. Chavez referred to
African American people as “those people†a few times when discussing African American
housing applicants. In addition, Mr.
Chavez assumed Ms. Mack knew or was related to an African American client
simply because she struck up a conversation with that person.
Ms. Mack stated she and Ms. Gossett were
compiling the 2007 waiting list when Mr. Pournamdari told them to issue
vouchers to applicants on the waiting list.
Ms. Mack inquired whether Mr. Chavez would have a problem and Mr.
Pournamdari replied “No.†Ms. Mack
stated Mr. Chavez tried to sabotage her work and get her fired by going through
her files and breaking into her desk on one occasion. Ms. Mack repeatedly asked Mr. Pournamdari to
be transferred out of the housing department because she was “tired of having
to double-check†her work and “being harassed.â€
Her requests were denied by Mr. Pathirana.
Ms. Mack believed only people who were
friends with Mr. Pathirana got pay increases.
Ms. Mack stated Mr. Chavez received a pay increase because the city
created the fraud investigator position for him. Ms. Mack asserted no African Americans
received any promotion or merit-based pay raises. Ms. Mack’s and Ms. Gossett’s requests for pay
raises were denied by the city. Ms. Mack
stated she, Alvenia Nunley, Tonya Harris, Ms. Gossett, Cheryl Williams and
Quila Lewis were discriminated against because they did not have job security
in the face of layoffs. In addition, Ms.
Mack observed Mr. Pournamdari did not do anything when Ms. Winbourne complained
to him about her conflicts with Mr. Chavez.
In addition, plaintiffs submitted Mr.
O’Brien’s deposition in their summary adjudication opposition. Mr. O’Brien was aware of two gender and race
discrimination lawsuits brought by Rose McKinney and Cheryl Williams, two
former African American female employees.
In addition, Mr. O’Brien testified Ms. Gossett, Twanna Manago and Quila
Lewis complained they were being treated differently because they supported Ms.
McKinney in her civil service commission hearing. Mr. O’Brien acknowledged the city did not
have a fraud investigator until 2007 and no one replaced Mr. Chavez after his
position was eliminated from the city budget.
Mr. O’Brien reviewed Mr. Chavez’s first draft investigation report and
thought the evidence was too weak to support the fraud allegations. Mr. O’Brien told Mr. Chavez he did not have
reason to question Ms. Mack’s integrity or to believe she did anything
illegal. Mr. O’Brien also thought Mr.
Chavez’s second draft report did not contain sufficient evidence to support the
fraud allegations. Concerning
plaintiffs’ suspension, Mr. O’Brien was directed by Mr. Pathirana to inform
plaintiffs they would be placed on unpaid leave because the district attorney
had filed criminal charges against plaintiffs.
Mr. O’Brien was not informed that criminal charges against plaintiffs
were later dismissed.
Plaintiffs also submitted Mr. Pathirana’s
deposition in support of their summary adjudication opposition. Mr. Pathirana admitted he was served with Ms.
McKinney’s racial discrimination lawsuit as the city manager. He was identified as a witness in the
McKinney case. Mr. Pathirana also
attended Ms. McKinney’s civil service hearing.
He recalled seeing African American female employees Monica McClananhan,
Keeva Phillips, and Twanna Manago at Ms. McKinney’s civil service
hearings. Mr. Pathirana did not remember
seeing Ms. Gossett, Ms. Mack, or Quila Lewis at the hearing but he admitted he
could not recall everyone that was there.
Mr. Pathirana personally contacted Ms. McKinney to try to settle her
case without going through their respective attorneys.
Mr. Pathirana acknowledged he had two
conversations with Congresswoman Maxine Waters regarding complaints made by Ms.
McKinney, Ms. Gossett, Ms. Lewis and Ms.
Manago. He spoke with
Congresswoman Waters for about fifteen to twenty minutes about each employee’s
specific complaints. Congresswoman
Waters encouraged Mr. Pathirana to have a meeting with her staff, the city
staff and the employees to resolve the complaints. Mr. Pathirana later had individual and group
meetings with these employees and Mr. O’Brien.
Mr. Pathirana admitted the fraud
investigator position was created with Mr. Chavez in mind at the suggestion of
Sergeant Chris Cognac from the Hawthorne Police Department. He acknowledged he has been friends with Mr.
Chavez for more than five years. Mr.
Chavez reported on his investigation of plaintiffs to Mr. Pathirana about 20
times. Mr. Pathirana attended one
meeting with Mr. Chavez, Sergeant Romero and Mr. O’Brien where Mr. Chavez and
Sergeant Romero discussed their investigation.
Mr. Pathirana and Mr. O’Brien were not convinced there was sufficient
evidence to support the fraud allegations against plaintiffs. Mr. Pathirana instructed Sergeant Romero and
Mr. Chavez to gather more evidence before he would “give them the okay to
present it to the district attorney’s office.â€
At the final meeting, Mr. Pathirana either made the decision or was told
that the investigation would be reported to the district attorney’s
office. Mr. Pathirana admitted he was
terminated by the city in 2010. Sometime
after Mr. Pathirana’s termination, the city eliminated Mr. Chavez’s
position.
Plaintiffs also submitted Mr. Pournamdari’s
deposition in their summary adjudication opposition. Mr. Pournamdari stated Mr. Chavez did not
apply for the fraud investigator position.
Mr. Pournamdari promoted Mr. Chavez from housing specialist to fraud
investigator. Mr. Pournamdari testified
Mr. Chavez reported that Ms. Mack had issued Mr. Sanusi a voucher without
completing the background check. Mr.
Pournamdari contacted Ms. Mack and Ms. Mack stated she kept the paperwork in a
different file. He testified Mr. Chavez
later raised concerns about Mr. Sanusi’s placement on the waiting list, moving
from number 408 to the top of the list. Mr.
Pournamdari admitted it was possible for an applicant to move from number 408
up to the top of the list in a four or five year period if other applicants
were no longer eligible for Section 8 benefits.
Mr. Sanusi was issued a voucher but he never became a Section 8
tenant. Mr. Pournamdari acknowledged Ms.
Mack complained to him about Mr. Chavez’s interference with her work.
Mr. Pournamdari oversaw the waiting list but
did not work on the list. Ms. Mack was
in charge of updating the waiting list. She
was assisted by Ms. Gossett and Alvenia Nunley, an office clerk. The housing department opened the waiting
list when there were not enough people to meet the Section 8
qualifications. He acknowledged Mr.
Chavez never proved Ms. Gossett or Ms. Mack received gifts from any Section 8
applicant. Mr. Pournamdari had no
personal knowledge that Ms. Mack or Ms. Gossett forged any documents or
presented any false documents to benefit a potential tenant. After criminal charges were filed against
plaintiffs, Mr. Pathirana called Mr. O’Brien and Mr. Pournamdari into his
office. Mr. Pathirana stated plaintiffs
would be placed on administrative leave because criminal charges had been filed
against them. Mr. O’Brien later notified
Mr. Pournamdari that Ms. Gossett and Ms. Mack were terminated.
Finally, plaintiffs submitted the deposition
of Sergeant Romero in opposition to the summary adjudication. Sergeant Romero agreed he did not trust Mr.
Pathirana or Mr. O’Brien with confidential information during his investigation
of plaintiffs. He acknowledged Ms.
Mack’s daughter did not receive Section 8 benefits. Sergeant Romero did not know whether Ms. Mack
received any monetary gifts from applicants.
Sergeant Romero acknowledged his investigation of plaintiffs was based
in part on statements made by Mr. Mayorga and Ms. Linares. He admitted Mr. Mayorga was a convicted felon
who had a domestic violence history. But
Sergeant Romero believed Mr. Mayorga’s assertion that Ms. Mack had accepted
bribes and gifts. Sergeant Romero
acknowledged Ms. Linares and Mr. Mayorga committed Section 8 fraud because Mr.
Mayorga was not supposed to live in the Section 8 housing. He admitted Ms. Linares was not prosecuted
because she was deemed a percipient witness.
Also, Ms. Linares decided not to give a gift card to Ms. Mack because
Ms. Mack was rude to her. Sergeant
Romero stated there was talk that the going rate was $500, but he never had
tangible proof that Ms. Mack received any money. Sergeant Romero also acknowledged Ms. Linares
stated that another employee named Sylvia later helped her with the Section 8
application. But Sergeant Romero did not
interview other housing department employees to determine whether they helped
Ms. Linares. Sergeant Romero was unable
to interview Alvenia Nunley, another African American housing employee, so he
was not aware she had assisted in processing the Section 8 applications.
C. Summary Adjudication Hearing and Ruling
At the summary adjudication hearing,
plaintiffs argued “me too†evidence from seven other African American female
employees was circumstantial evidence of the city’s race and gender
discrimination. The trial court rejected
plaintiffs’ argument stating the complaints contained allegations, not evidence
of discrimination. The trial court
denied the city’s motion as to plaintiffs’ retaliation claim.
But the court granted the city’s summary
adjudication motion as to plaintiffs’ claims for race, gender, and disability
discrimination, hostile work environment, and race, gender and disability
harassment. The trial court ruled
plaintiffs failed to raise a triable issue of material fact as to the existence
of racially discriminatory intent. Plaintiffs
cited evidence that Mr. Chavez routinely referred to African Americans as
“those people†but there was no supporting evidence for this statement and such
remarks did not constitute evidence of discriminatory intent. The trial court found plaintiffs failed to
provide evidence of gender-based discriminatory intent. In addition, the trial court found plaintiffs
failed to provide evidence of disability-based discriminatory intent.
Finally, the trial court held there was
insufficient evidence to raise a triable issue of material fact as to whether
Mr. Chavez created a hostile work environment by harassing African Americans on
the basis of their race. Ms. Mack’s
complaint that Mr. Chavez “attacked the character†of African American
employees Avater Winbourne, Ms. Gossett, Alvenia Nunley and Peter Ojo was
opinion without supporting evidence. In
addition, evidence that Mr. Chavez referred to African Americans as “those
people†and his assumption that Ms. Mack knew or were related to African
American clients she conversed with were insufficient evidence of a hostile
work environment. Also, the trial court
found that Ms. Mack’s testimony that she caught Mr. Chavez going through her
files and trying to break into her desk was not evidence of racial animus.
D. Motions in Limine
The parties made several motions in limine
before trial. Plaintiffs sought to
exclude evidence of any reference to Ms. McKinney’s prior settlement of her
racial discrimination and retaliation lawsuit against the city in motion in
limine no. 2. In opposition to the
motion, the city proposed limiting reference to Ms. McKinney’s settlement to
the following: Ms. McKinney had a
hearing before the civil service commission to appeal her layoff from the city;
Ms. McKinney filed a lawsuit alleging racial discrimination; the case was
settled without an admission of liability; and the parties settled on February
2, 2009. At the hearing, the trial court
granted the motion limiting the testimony of the McKinney case as proposed by
defendants.
In addition, the trial court granted several
of the city’s motions in limine. The
court granted the city’s motion in limine no. 3 by excluding all evidence of
allegations of unlawful conduct more than one year prior to plaintiffs’ claims
with the DFEH. Also, the trial court
granted the city’s motion in limine no. 4.
The court excluded evidence concerning allegations that the city or Mr.
Pathirana misappropriated Department of Housing and Urban Development (HUD)
money. The trial court also granted the
city’s motion in limine no. 8 by excluding “me too†evidence of discrimination complaints
by third parties. But the trial court
denied the city’s motion in limine no. 12, which sought to exclude allegations
or events not alleged or referred to in the First Amended Complaint.
E. Trial Evidence for Retaliation Claim
At trial, the parties stipulated Ms.
McKinney’s deposition was taken on April 16, 2008 and transcribed on May 3, 2008. They further stipulated the McKinney
litigation settled on January 19, 2009 and the settlement agreement was executed
on February 2, 2009. During plaintiffs’
case, they presented testimony from Ms. Mack, Ms. Gossett, Ms. McKinney, Mr.
O’Brien, Mr. Pathirana, Mr. Pournamdari, and Sergeant Romero.
Ms. Mack testified she worked for the city
as a housing specialist. In April 2007
she worked on the Section 8 waiting list under the direction of Mr.
Pournamdari. Ms. Gossett assisted her
with the waiting list. In early January
2007, Ms. Mack was informed by Mr. Pournamdari that Mr. Chavez had accused her
of improperly issuing a voucher to Mr. Sanusi.
Ms. Mack wrote Mr. Pournamdari a January 9, 2007 memo responding to the
accusation and gave the Sanusi file to Mr. Pournamdari at his request. Mr. Pournamdari reviewed the Sanusi file and
was satisfied that all the documents were in the file. But two weeks later, Mr. Pournamdari asked
Ms. Mack for the Sanusi file and a summary of how she handled the file. Mr. Pournamdari again told Ms. Mack that
everything was fine and there was no missing documentation. Ms. Mack later was questioned about Mr.
Sanusi’s placement on the waiting list by Sergeant Romero in December
2008. Ms. Mack explained Mr. Sanusi
moved from number 408 on the 2004 waiting list towards the top of the 2007
waiting list after Ms. Mack purged the 2004 waiting list at Mr. Pournamdari’s
request. Mr. Sanusi was issued a voucher
but never used it. Ms. Mack denied ever
taking any bribe or gift in exchange for a Section 8 voucher. After her meeting with Sergeant Romero and
Mr. Chavez, Ms. Mack was placed on paid administrative leave by Mr.
O’Brien. On March 26, 2009, the city
suspended Ms. Mack without pay and benefits pending the outcome of the
investigation.
Ms. Mack testified she knew Rose McKinney
who was a secretary at the city’s planning department. Ms. McKinney is African American. Ms. Mack attended two sessions of Ms.
McKinney’s hearing before the civil service commission. She saw Mr. Pathirana and Mr. O’Brien at Ms.
McKinney’s civil service commission hearing.
Ms. Mack testified Mr. Pathirana made eye contact with her at the
hearing. She later agreed to testify as
a witness at the McKinney trial in the summer of 2008.
Ms. Gossett testified she worked for the
city as a Section 8 housing inspector.
In April 2007, Ms. Gossett assisted Ms. Mack with the Section 8 waiting
list by inputting the application data into the computer system. They were assisted by housing department
employees Cynthia Rodarte and Alvenia Nunley.
Mr. Pournamdari instructed them to give waiting list preference based on
the date and time the applications were submitted.
Ms. Gossett testified she complained to Mr.
Pournamdari about Mr. Chavez’s harassment of her which began in July 2006. Mr. Chavez harassed her by “always looking
over [her] shoulder.†Ms. Gossett also
complained about Mr. Chavez going through Ms. Mack’s files.
On December 3, 2008, Sergeant Romero
questioned Ms. Gossett about a Section 8 unit that the owner alleged had not been
inspected by Ms. Gossett. Ms. Gossett
testified she inspected the unit. The
owner, Jacqueline Kelly, saw Ms. Gossett on the premises but did not know how
Ms. Gossett got into the unit because it was in a gated community. Ms. Gossett explained someone let her
inside because she wore a city shirt.
She was able to enter the unit because the door was open for the carpet
cleaners. Ms. Gossett questioned why Ms.
Kelly would complain after she had already received Section 8 rent for fourteen
months. Ms. Gossett testified Sergeant
Romero also asked her whether she accepted bribes. She denied taking any bribe in exchange for a
housing voucher or moving anyone up the waiting list.
After her interview with Sergeant Romero,
Ms. Gossett was placed on paid administrative leave. On March 5, 2009, Ms. Gossett received a
letter from Sergeant Romero stating that a criminal complaint had been filed
against her. On March 26, 2009, Ms.
Gossett was suspended without pay.
Ms. Gossett testified she was aware Ms.
McKinney had filed a lawsuit against the city.
Ms. Gossett was listed as a trial witness in the McKinney case. Ms. Mack was identified as “Maudrey Mack†in
the joint list of trial witnesses in the McKinney action. The trial witness list was filed with the
court on December 23, 2008.
Ms. McKinney testified she worked for the
city for 18 years, from 1988 until 2006.
She was a legal secretary for the planning and community development
department for ten years until her layoff in May 2006. After the civil service commission hearing
concluded, Ms. McKinney challenged her termination by filing a discrimination lawsuit
against the city. She identified Ms.
Mack and Ms. Gossett as witnesses for her January 20, 2009 trial. Ms. McKinney’s case later settled before
trial. The city settled the McKinney
lawsuit without admitting liability.
Mr. O’Brien testified he became the city’s
human resources manager in March 2002. Mr.
O’Brien stated he attended Ms. McKinney’s hearing before the civil service
commission. The hearing began in
September 2006 and concluded in February 2007. He did not recall seeing Ms. Mack or Ms.
Gossett at the McKinney hearing. Mr.
Pathirana notified Mr. O’Brien that
plaintiffs would be placed on paid administrative leave because of
ongoing administrative and criminal investigations of plaintiffs. In early December 2008, Mr. O’Brien informed
plaintiffs they would be placed on administrative leave. Mr. O’Brien did not recall whether he knew
about Ms. McKinney’s race discrimination and retaliation lawsuit at the time he
placed plaintiffs on leave. In March
2009, Mr. Pathirana directed Mr. O’Brien to place plaintiffs on unpaid leave
after the Los Angeles district attorney filed felony charges against
plaintiffs.
Mr. O’Brien saw Mr. Chavez’s draft
investigation report a few weeks after plaintiffs were placed on paid
administrative leave. Mr. O’Brien told
Mr. Chavez the information was difficult to follow and insufficient to support
the fraud allegations against plaintiffs.
He reviewed Mr. Chavez’s subsequent draft and thought the report was “still
weak.†However, Mr. O’Brien never
reviewed Sergeant Romero’s report concerning his investigation of
plaintiffs.
Mr. Pathirana testified he was the city
manager from June 2006 to May 2010. He
was in charge of the city’s day-to-day operations under the city council’s
direction. Mr. Pathirana testified after
Ms. McKinney’s position was eliminated, she appealed to the civil service
commission. He attended the McKinney
civil service commission hearing but did not remember whether Ms. Mack or Ms.
Gossett were present at the hearing.
Mr. Pathirana testified Ms. McKinney filed a lawsuit after the civil
service commission hearing.
Mr. Pathirana created the fraud investigator
position upon the recommendation of Sergeant Chris Conrad from the Hawthorne
Police Department. Mr. Chavez was
selected for the fraud investigator position because he was already doing housing
fraud investigations. In addition,
Sergeant Conrad recommended Mr. Chavez for the position. Mr. Pathirana acknowledged he and Mr.
Chavez were very good friends.
Mr. Pathirana was aware of Mr. Chavez’s
investigation of plaintiffs but denied monitoring the investigation. He reviewed some reports from Mr. Chavez concerning
the investigation. Mr. Pathirana had two
meetings with Sergeant Romero where he was informed of the status of the
investigation. Sergeant Romero sent Mr.
Pathirana a letter on December 17, 2008 regarding the status of his criminal
investigation of plaintiffs. Mr.
Pathirana stated criminal charges went forward to the district attorney’s
office because Sergeant Romero and Mr. Chavez believed they had sufficient
evidence. The criminal charges against
plaintiffs were later dismissed.
Mr. Pournamdari testified he became the
director of the housing department in 2005.
He is in charge of the day-to-day operation of the housing department
and handles Section 8 funding from the federal government. He was Ms. Mack’s and Ms. Gossett’s
supervisor. In 2007, Mr. Chavez
informed Mr. Pournamdari that Mr. Sanusi’s file was missing a document. Mr. Pournamdari asked Ms. Mack about the
missing background check and was told the police department never sent back the
information. Later, the police
department sent back the background check.
Mr. Pournamdari acknowledged Ms. Mack complained about Mr. Chavez
looking through her files. Mr. Chavez
also reviewed Mr. Sanusi’s placement on the waiting list. Ms. Mack was in charge of the waiting list
with assistance from Ms. Gossett. Mr.
Pournamdari oversaw the waiting list maintained by Ms. Mack. Mr. Pournamdari set the waiting list
preference based on city residence and the date and time of the Section 8
application submissions. He admitted a
Section 8 applicant like Mr. Sanusi could move up because the waiting list was
purged of ineligible applicants every fifteen months. Mr. Sanusi received a voucher but did not
received any Section 8 benefits.
Mr. Pournamdari testified Mr. Chavez
informed him that an anonymous caller had accused plaintiffs of receiving gifts
in exchange for helping people with Section 8 benefits. Mr. Chavez never showed Mr. Pournamdari any
evidence that Ms. Gossett or Ms. Mack received money or gifts in exchange for
Section 8 vouchers. Mr. Chavez also
notified Mr. Pournamdari that an owner had complained Ms. Gossett did not
inspect her unit. The owner also called
Mr. Pournamdari to complain that her unit had not been inspected. Mr. Pournamdari spoke with Ms. Gossett and
Ms. Gossett stated she had done the inspection.
Later, Mr. Pournamdari attended a meeting with Mr. Pathirana, Mr.
Chavez, and Sergeant Romero concerning the investigation of plaintiffs. At the meeting, Sergeant Romero decided to go
forward with the criminal prosecution of plaintiffs. Mr. Pournamdari testified he was not involved
in the decision to place plaintiffs on administrative leave.
Mr. Pournamdari was not aware of when the
McKinney lawsuit was filed. He also did
not know whether Ms. McKinney gave deposition testimony in her lawsuit. Also, Mr. Pournamdari was not aware that
plaintiffs were suspended without pay five weeks prior to Ms. McKinney’s trial
date. He also did not know that Ms.
McKinney’s trial date was January 20, 2009.
He was not asked to be a witness in the McKinney case. And Mr. Pathirana did not tell him that he
was a witness in the McKinney case.
Sergeant Romero testified he was assigned to
the criminal abatement office known as the crime-free multi-housing unit. In early July 2008, Sergeant Romero was
contacted by Mr. Chavez concerning a call from Rene Mayorga alleging Ms. Mack
was involved in fraud. Mr. Mayorga
called to report on his co-habitant, Idalia Linares, and her relatives because
he had a falling out with them. Sergeant
Romero admitted there was no physical evidence of bribery. But he believed there was circumstantial
evidence of misconduct based on statements from Mr. Mayorga, Ms. Linares, Ms.
Linares’s relatives, and plaintiffs’ inconsistent statements. Sergeant Romero stated Ms. Mack explained for
the waiting list, “they inputted the data so that the numbers come out the way
the wanted them to.†Sergeant Romero
also testified he believed Ms. Gossett filed a false inspection report because
Ms. Kelly, the unit’s owner, complained the unit had not been inspected.
Sergeant Romero was not aware that Ms.
McKinney had filed a racial discrimination and retaliation lawsuit before the
July 2008 investigation of plaintiffs.
He did not know Ms. McKinney had identified plaintiffs as possible
witnesses in her deposition prior to the July 2008 investigation. Sergeant Romero spoke with Mr. Pathirana
twice about his investigation of plaintiffs.
He also wrote a memorandum to Mr. Pathirana on December 17, 2008
regarding the investigation at the request of his police chief.
F. Nonsuit Motion and Ruling
The city made a motion for nonsuit at the
end of plaintiffs’ case. The city argued
plaintiffs failed to establish a causal link between their support of Ms.
McKinney’s civil service commission hearing and discrimination lawsuit and the
city’s decision to suspend them. The
trial court granted the city’s nonsuit motion.
The trial court explained: “First of all, it’s undisputed that Ms.
McKinney’s complaint was filed on September 5, 2007. Ms. Mack testified that the issue with regard
to the waiting list and Mr. Sanusi’s movement up the waiting list and Mr.
Sanusi’s file came up in January of 2007.
[¶] She testified she was accused
of issuing inappropriate vouchers to Mr. Sanusi, and Mr. Pournamdari went over
the file with her. She claims that
everything was determined to be okay at that juncture, but, nonetheless, the
issue came up in January of 2007. [¶] Ms. Mack also testified that she agreed to
appear as a witness on behalf of McKinney in the summer of 2008. We know that she also testified that she was
present at the civil service commission hearing, that she made eye contact,
allegedly twice, but that she did not, in fact, testify. . . . [¶] So putting the timing together, . . . the
accusations against Ms. Mack with regard to the improper issuance of the
voucher and the Sanusi file came up January 2007. That’s eight months before Ms. McKinney’s
complaint was filed. . . . [¶] Ms. Gossett testified that she was made aware
that she was being investigated in December of 2008. She was told to meet with Sergeant
Romero. She testified that she knew Rose
McKinney, and she was aware that Ms. McKinney had challenged her
termination.â€
The trial court took judicial notice of the December
23, 2008 joint witness list submitted in the McKinney action. The witness list identified plaintiffs as
trial witnesses. The trial court
noted the investigation of plaintiffs occurred in early July 2008. The trial court found the investigation was
legitimate and “not linked in any way by temporary proximity or anything that
would allow the court to conclude there is any basis to find retaliation.â€
III. DISCUSSION
A. Summary Adjudication of Race and Gender
Discrimination Claims
Summary judgment may be granted only if there is no triable
issue of material fact and the party is entitled to a judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has
the burden of presenting evidence that negates an element of plaintiff’s claim or
evidence that the plaintiff does not possess and cannot reasonably expect to
obtain evidence needed to support an element of the claim. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 460;
Cal.4th 763, 768.) If the
defendant meets this burden, the burden shifts to the plaintiff to set forth
“specific facts†showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review de novo the trial court’s grant of summary judgment. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1039; Lonicki
v. Sutter Health Central (2008) 43 Cal.4th 201, 206.) We take the facts from the record that was
before the trial court when it ruled on the motion and consider all the
evidence set forth in the moving and opposing papers except that to which
objections were made and sustained. (
(c).) The court does not weigh the
parties’ evidence; rather, it must consider all the evidence and “all
inferences reasonably deducible from the evidence.†(Code Civ. Proc. § 437c, subd. (c);
512, 540-541; Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th
826, 856.) But our Supreme Court has
stated, “any doubts as to the propriety of granting a summary judgment motion
should be resolved in favor of the party opposing the motion.†(Reid
v. Google, Inc. supra, 50 Cal.4th at p. 535; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)
The Fair Employment and Housing Act (FEHA) prohibits
an employer from discriminating against an employee based on race, medical
condition, or gender discrimination.
(Gov. Code § 12940, subd. (a).) The court applies “a three-stage burden-shifting test†for
discrimination claims. (
Cal.4th 317, 354; Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
At trial, the plaintiff bears the initial burden of establish a prima
facie case of discrimination or retaliation.
If the employee does so, a presumption of discrimination or retaliation
arises. (Guz, supra, 24 Cal.4th at p. 354; Yanowitz, supra, 36 Cal.4th at p. 1042.) The burden then shifts to the employer to
rebut the presumption by producing admissible evidence that its adverse
employment action was taken for a legitimate, nondiscriminatory or
nonretaliatory reason. (
1042.) If the employer does so, the
burden shifts back to plaintiff to “attack the employer’s proffered reasons as
pretexts for discrimination†or retaliation, or to offer other evidence of
intentional discrimination or retaliation.
(Guz, supra, 24 Cal.4th at p.
356; Yanowitz, supra, 36 Cal.4th at
p. 1042.)
A defendant moving for summary judgment may skip to
the second step of the analysis by demonstrating it has a legitimate business
reason, unrelated to race, gender, other protected classifications, or
retaliation. (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 357.) The plaintiff then has “the burden to
by pointing to evidence which nonetheless raises a rational inference that
intentional discrimination occurred.†(
1. “Me Too†Evidence
Plaintiffs argue the trial court
erred in granting summary adjudication of their race and gender discrimination
claims. Plaintiffs contend race and
gender discrimination can be inferred because nine African American female
employees— Ms. Williams, Ms. McKinney, Ms. Winbourne, Ms. McClanahan, Ms.
Nunley, Ms. Lewis, Ms. Harris, Ms. Gossett and Ms. Mack— all complained of
discrimination and retaliatory treatment.
Plaintiffs assert it was reversible error not to consider the “me tooâ€
evidence of discrimination from the other African American female
employees. They argue the “me tooâ€
evidence is relevant and admissible evidence under Pantoja v. Anton (2011) 198 Cal.App.4th 87, 115 and
Children’s Foundation (2009) 173 Cal.App.4th 740, 747 (Johnson). We disagree.
We conclude the trial court
properly excluded plaintiffs’ “me too†evidence. First, plaintiffs failed to present their “me
too†evidence of the third party complaints in their separate statement of disputed
facts. Plaintiffs did not comply with
Code of Civil Procedure § 437c, subdivision(b)(3), which requires plaintiffs to
“‘set forth plainly and concisely any other material facts that the opposing
party contends are disputed.’†Thus, the
trial court did not have to consider the “me too†evidence. (Batarse
v. Service Employees Intern. Union Local 1000 (2012) 209 Cal.App.4th 820, 828-829.) Second, plaintiffs do not challenge the trial
court’s exclusion of some of the “me too†evidence as hearsay including: Ms. Williams’ and Ms. McKinney’s
discrimination complaints; Ms. William’s declaration in the McKinney action;
and Ms. Manago’s trial testimony in the McKinney case. Only admissible evidence may be considered
when determining whether there is a triable issue. (Bozzi
v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761; DiCola v. White Bros. Performance Products, Inc. (2008) 158
Cal.App.4th 666, 679-682.)
Finally, we disagree with plaintiffs’
assertion that their “me too†evidence is relevant and admissible under
747 and Pantoja v. Anton, supra, 198
Cal.App.4th at p. 115. Both cases are
distinguishable from the present case.
In Johnson, plaintiff alleged
she was terminated after she became pregnant.
(173 Cal.App.4th at pp. 744, 746.)
In opposition to summary judgment, plaintiff submitted declarations from
former employees asserting they were fired when they became pregnant or knew
someone who was fired because of pregnancy.
(Johnson, supra, 173 Cal.App.4th
at pp. 761-762.) All four employees who
stated they were fired when they became pregnant worked at the same facility,
had the same three supervisors, and were fired very shortly after their
supervisors learned of their pregnancy.
(Johnson, supra, 173 Cal.App.4th
at p. 761 fn. 14.)
Likewise, plaintiffs’ reliance on
at p. 115 is misplaced. In
employer for race and sex discrimination and sexual harassment. (198 Cal.App.4th at p. 93.) The trial court ruled, both before and during trial, that evidence
of defendant’s sexual harassment of other employees was admissible only if it
took place in plaintiff’s presence or affected her work environment. (Pantoja
v. Anton, supra, 198 Cal.App.4th at p. 109.) The appellate court held it was error not to
admit “me too†evidence of sexual harassment by defendant against other
employees. (Ibid.) The “me too†evidence
was relevant to prove defendant’s intent when he used profanity and touched
employees. (Ibid.) In addition,
defendant’s sexual harassment of other employees was admissible to impeach
defendant’s credibility and to rebut factual claims made by defense
witnesses. (Id. at p. 110.)
Here, plaintiffs presented the following “me
too†evidence. Mr. Chavez constantly
complained about Ms. Nunley’s work to their supervisor, Mr. Pournamdari. In addition, Mr. Chavez constantly argued
with Ms. Winbourne and scrutinized her work.
Ms. Gossett testified Ms. McClanahan was “forced out†and sent home
without pay after an argument with Mr. O’Brien.
Tonya Harris, a housing department employee was laid off by the
city. Also, Ms. McKinney complained
about race and sex discrimination and harassment by her planning department
supervisor, Mr. Roth.
We find the “me too†evidence lacks the
factual and supervisory nexus present in Johnson
and Pantoja v. Anton. Plaintiffs complained about Mr. Pathirana
and Mr. Chavez’s actions; Ms. McKinney complained about discrimination and
harassment from a different supervisor, Mr. Roth. Also, evidence that Ms. McClanahan was
“forced out†and Ms. Harris was laid off without more detail does not give rise
to an inference of race and gender discrimination. In addition, Mr. Chavez’s conduct towards Ms.
Nunley and Ms. Winbourne has no bearing on Mr. Chavez’s investigation of
plaintiffs and Mr. Pathirana’s subsequent decision to place plaintiffs on
administrative leave. We conclude the
trial court properly excluded the “me too†evidence.
2. Pretext
Plaintiffs assert the fraud investigation
was a pretext for the city’s race and gender discrimination and
retaliation. They contend the city never
established a legitimate, non-discriminatory reason for its investigation of
plaintiffs. We disagree.
To avoid summary judgment, plaintiffs must
offer substantial evidence that the city’s stated nondiscriminatory reason was
untrue or pretextual, or the city acted with discriminatory animus, or a
combination of the two. (
57 Cal.App.4th 997, 1004-1005; Johnson,
supra, 173 Cal.App.4th at p. 755.)
It is not enough for plaintiffs to simply “show that the employer’s
decision was wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent or competent.†(
Cal.App.4th at p. 1005;
755.) Rather, ‘“[t]he [employee] must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered
| Description | Plaintiffs, Marjorie Mack and Shannon-Joy Gossett, appeal from the trial court’s orders and judgment in favor of defendant City of Hawthorne (the city). They argue it was error to grant the city’s motion for summary adjudication of their race and gender discrimination claims. Plaintiffs also contend the trial court erred in granting the city’s nonsuit motion on the retaliation claim. In addition, plaintiffs challenge the trial court’s evidentiary rulings before and during trial. We affirm the orders and judgment. |
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