Articles Posted in Workplace Harassment/Sex Discrimination

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/personal injury case and its proceedings.)

Summary Judgment is Improper Here Because Triable Issues of Material Fact Exist and Plaintiff Has Provided Sufficient Showing Of Severe and Pervasive Harassment and Discrimination Based on Perceived Sexual Orientation, Creed, and Affiliation With African- Americans

Even if Defendants’ evidence is deemed admissible and they are able to meet their initial burden of proof, triable issues of disputed material facts exist which preclude Defendants from successfully moving for summary judgment.

To preclude summary judgment, all the opposing party has to do is successfully introduce enough evidence to show the existence of even a single triable issue of material fact. Plaintiff has accomplished this. As Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts shows, sufficient disputed facts exist to support Plaintiff’s causes of action.

Plaintiff has provided facts, and will produce further evidence at trial, showing that Defendant Green initiated an ongoing and pervasive harassment campaign against Plaintiff based on Defendant Green’s perception that Plaintiff was homosexual. Plaintiff will also demonstrate Defendant Green was biased against Plaintiff because Plaintiff is Jewish and because of Plaintiff’s affiliation with African-Americans. (See Part 6 of 7.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/personal injury case and its proceedings.)

The California Constitution Applies to Discrimination Based on Sexual Orientation

California Courts have interpreted Article I, Section 8 of the California Constitution to include protection against disqualification from entering or pursuing a business, profession, vocation or employment because of sexual orientation. In In re Marriage Cases the Court found that, just as it is not constitutionally permissible to discriminate against ethnic minorities or women … an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights. In re Marriage Cases (2008) 43 Cal. 4th 757, 822. Further, “this state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation.” In re Marriage, supra at 821-822.

The provisions of the California Constitution, Article I Section 8 are in place to protect individual’s basic civil right to access to non-discriminatory employment. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights. In re Marriage Cases, supra at 823.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/personal injury case and its proceedings.)

SUMMARY JUDGMENT IS DRASTIC AND SHOULD BE USED WITH CAUTION

The summary judgment procedure is a drastic measure depriving the losing party of a trial on the merits and may not be granted (in this workplace harassment case) unless it is clear from the affidavits or the declarations filed in connection with the motion that there are no triable issues of fact. Rawlings v. D.M. Oliver Inc. (1979) 97 Cal. App. 3d 809, 895. The court need not look at the counter-affidavits or counter-declarations unless the moving party’s declaration, standing alone, but considered in light of the pleading, would support the summary judgment motion. Id. at 896. In all cases, any doubts as to whether summary judgment is proper should be resolved against the moving party. Id. at 896.

In examining the sufficiency of the affidavits, the moving party’s affidavits are strictly construed and those of the opposing party are liberally construed. Corwin v. Los Angeles Newspaper Service Bureau. Inc. (1971) 4 Cal. 3d 842, 851, 852. In Corwin, supra at 852, the Court noted that summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.

LEGAL ARGUMENT
Defendants Have Failed to Meet Their Evidentiary Burden
California Code of Civil Procedure §437c states, in relevant part, as follows:
Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit… (o) A defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists to that cause of action or a defense thereto.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/personal injury case and its proceedings.)

STATEMENT OF FACTS

Plaintiff John White has been an employee of the CCD since 1992 when he was hired as head men’s basketball coach at Community College (“CC”) In 2003, Plaintiff was appointed Athletic Director at CC and presently continues to serve in that role as well as that of head men’s basketball coach. Dr. Sean Green became President of CC on August 1, 2005. On or about August 2007, Defendant Green was reassigned to another branch of the CCD and removed from the position of President of CC.

During the time that Defendant Green was President at CC its men’s basketball team was comprised entirely of African-American males. From the time that he took his position as President at CC to his abrupt departure from CC Defendant Green harassed, discriminated against and attempted to destroy, discredit and defame Plaintiff Miller. Plaintiff’s record as Athletic Director and Men’s Basketball coach was excellent. Defendant’s bias against Plaintiff was clearly unwarranted by his performance and instead was based on his false perception of Plaintiffs sexual orientation, his perception of Plaintiffs religious affiliation (Plaintiff is half Jewish), and his racist disapproval of the all African-American men’s basketball team coached by Plaintiff.

Defendant was also biased against homosexuals. And because Defendant suspected that Plaintiff was homosexual Defendant threatened him based on this rank suspicion. Defendant additionally suspected that Plaintiff was Jewish and made disparaging remarks about Jews to Plaintiff.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/personal injury case and its proceedings.)

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Defendants have failed to meet their initial burden of presenting admissible evidence to show that either one or more elements of Plaintiffs first cause of action cannot be established, or that there is a complete defense to that cause of action.

As Plaintiff’s First Amended Complaint ( FAC ) alleges, and the facts in this case support, Defendants engaged in consistent and malicious workplace harassment of Plaintiff and made defamatory statements against Plaintiff. As a result of this willful and malicious illegal treatment, Plaintiff suffered injury to his emotional well being and his professional reputation. Defendants argue that the treatment endured by Plaintiff and his resulting injuries are not sufficient to trigger protection under applicable anti-discrimination statutes such as the Fair Employment and Housing Act and anti-defamation statutes. Plaintiff disagrees with this contention and will present admissible evidence at trial to support Plaintiff’s positions. Therefore, disputed material facts exist in this case which preclude Defendants from succeeding on their Motion for Summary Judgment.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/personal injury case and its proceedings.)

In this case, after counsel and the court had gone over the special verdict forms, the court instructed the defendants to revise the special verdict forms with respect to punitive damages. Thereafter, the court instructed the defendants to reorder the special verdict forms. Defense counsel revised Special Verdict Forms VF-1704 and VF-1705 in a manner that did not reflect the law, the jury instructions, or the underlying CACI forms on which they were based. Defense counsel did not advise Plaintiff, nor as far as Plaintiff knows, the court, that they had made these revisions.

The question posed in the defamation special verdict forms given to the jury used a standard that is higher even than that required to be entitled to punitive damages. The question in the special verdict form is Did one or more officers, directors, or managing agents of [XYZ ], acting in a corporate capacity, make the following statement To be able to assess punitive damages against a corporate employer, a plaintiff must show offending conduct of the corporate employee was authorized or ratified by an officer, director, or managing agent of the corporation. (See Civ. Code § 3294(a).)

In speaking with the jurors after their verdict, they asked Plaintiff’s counsel who had written the questions. They stated that they wanted to find for Mr. White on the issue of defamation, but that they could not because of the wording of the special verdict forms: there had not been any evidence introduced at trial that answered the questions, and they got no clarification from the jury instructions.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The harassment was severe and pervasive, The harassing conduct by Plaintiff’s supervisor is severe and pervasive enough to alter the terms and conditions of employment. There is a different standard applied with the harassment comes from a supervisor. When it is a supervisor, a hostile work environment can be created by one singular remark. Dee v. Vintage Petroleum. Inc., (2003) 106 Cal. App. 4th 30. Further, repeated use of profanity against an employee, in conjunction with even one remark about the protected class by a supervisor gives rise to a hostile work environment claim. Id. at 35-37. As set forth above, over the course of a few days she was repeatedly attacked, yelled at, cursed at, and numerous comments were made directly about her pregnancy. Because of the comments she became stressed out, developed cramps and bleeding and had to go on bed rest on two separate occasions.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER PUNITIVE DAMAGE CLAIMS

Evidence that a defendant acted with discriminatory intent and evidence of pretext provide sufficient basis to find that defendants acted with malice and oppression. Cloud v. Casey, (1999) 76 Cal.App.4th 895, 911. Further, evidence that a defendant tried to cover up the illegal reason with a false explanation also supports a finding of malice and oppression. Id. at 911. In other words, the same evidence that Plaintiff was fired in retaliation for her complaints of harassment/accommodation requests and because of her pregnancy is ample evidence to show malice and oppression. Plaintiff incorporates sections B & C where she lays out the retaliation and discrimination claims including all the pretext to support each claim.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

i. Unwanted harassment because of her pregnancy/disability: Plaintiff was subject to abusive conduct because of her pregnancy. Verbal harassment by itself can support a hostile work environment claim. Lipsett v. University of Puerto Rico, (1st Cir. 1988) 864 F.2d 881, 905. Numerous negative comments were made about her pregnancy by Mr. Davis and Mr. Chan. Including: 1) Telling her multiple times (at least 10 times) that she is not wanted there because she is pregnant and she should either quit or go on disability, 2) Yelling that if she can’t handle the job she should quit or go on disability, 3) saying that pregnant women have hormones and attitudes and she should quit or go on disability, 4) disciplining her for talking about her pregnancy, 5) telling her she cannot ask others to help her lift heavy items when her doctor told her not to do so because of her pregnancy, 6) calling her in the office 7 times to change a T-shirt that is fine to begin with, 7) telling her she cannot work unless her note is clearer when it was clear to begin with, 8) laughing at her over her complaints of harassment, 9) cursing at her (shit and fuck), 10) telling her that she is a bad person and 11) suspending her for wanting to go to the doctor. A hostile work environment can also be found when employees engage in forms of intimidation. Birschetein v. New United Motor Mfg., Inc., (2001) 92 Cal. App. 4th 994, 1001-1002[FN1]. As stated above, much of the harassment was intimidation over Plaintiff’s job including yelling and swearing.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The termination reasons are false which establishes pretext as well

Pretext can be shown by showing the termination reasons are not true. University of So. Calif, v. Sup. Ct., 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

iv. Failure to follow its own policies is evidence of pretext

Defendant’s failure to follow its policy is evidence of pretext. Hill, 855 F.2d at 811; Christine, 785 F.2d at 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He did not follow any of the steps including documenting, talking with Plaintiff, getting a written statement from Plaintiff, reporting the results to Plaintiff or telling Team Member Services of the complaints. All of which was required to do under the policies.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER HARASSMENT CLAIMS (CLAIMS 5, 6, 9 & 10)

PREGNANCY/DISABILITY HARASSMENT IS UNLAWFUL AND WHEN THE HARASSMENT IS DONE BY A SUPERVISOR THE AMOUNT OF HARASSMENT NEED TO BE ACTIONABLE IS MUCH LESS

Under the Fair Employment and Housing Act ( FEHA ), it is unlawful for any person or employer to harass an employee based on that employee’s pregnancy or disability. Cal. Govt. Code § 12940(j)(1). Under FEHA, an employer is strictly liable for workplace harassment by a supervisor. State Dept. of Health Services v. Sup. Ct., (2003) 31 Cal. 4th 1026, 1042.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

3) Adverse action – Fired and the decision to fire her was made on June 23 – not disputed.

4) Other circumstances suggest discriminatory motive:

The timing of the action suggests a discriminatory motive between the pregnancy and the decision to fire her about one month later. Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 224; Flait v. North American Watch Corp., (1992) 3 Cal. App. 4th 467, 476, 479).

Also, discriminatory motive can be established by statements by a decision maker, which shed light on the employer’s true motivation. Reeves, 530 U.S. at 148; Cook, 69 F.3d at 1238. Again, both Mr. Davis and Mr. Chan constantly made negative comments about Plaintiff’s pregnancy/disability including telling her to quit or go on disability, that a pregnant women is not wanted, that pregnant women have attitudes and hormones and should quit or go on disability, etc.

PLAINTIFF HAS AMPLE EVIDENCE OF PRETEXT
i. The timing of the termination supports pretext:

Pretext may be inferred from the timing of the discharge decision. Hanson, 74 Cal. App. 4th at 224; Flait, 3 Cal. App. 4th at 476, 479). Here, as stated above, the decision came within about one month of her disclosing she was pregnant. There were no plans to fire her before that point and she as considered at least an average employee up to that point.

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