Bohlender v. Srivastava, et al

Bohlender v. Srivastava, et al Motion: Summary Judgment and Summary Adjudication Movant: Deepika Srivastava (Srivastava) Respondent: Phillip Bohlender (Bohlender/Plaintiff)

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On March 7, 2024, Plaintiff filed his initial Complaint against Defendants Redlands Unified School District (District) and Srivastava (collectively, Defendants).

The Operative First Amended Complaint (FAC) alleges the following 12 causes of action against Defendants: (1) Age Discrimination (Against the District); (2) Disability Discrimination (Against the District); (3) Hostile Work Environment Harassment (Against All Defendants); (4) Retaliation for Engaging in Protected Activity (Against the District); (5) CFRA Retaliation (Against the District); (6) Retaliation in Violation of Labor Code section 1102.5 (Against the District); (7) Failure to Prevent Discrimination, Harassment and Retaliation (Against the District); (8) Failure to Engage in the Interactive Process (Against the District); (9) Failure to Accommodate Disability (Against the District); (10) Constructive Discharge in Violation of Public Policy (Against the District); (11) Intentional Infliction of Emotional Distress (Against All Defendants); and (12) Sexual Orientation Discrimination (Against the District).

Srivastava moves for motion for summary judgment or, in the alternative, summary adjudication of the third and eleventh causes of action. Plaintiff opposes.

ANALYSIS Motion for Summary Judgment “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The analysis requires the trial court to engage in three steps:

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First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.] The motion must stand self- sufficient and cannot succeed because the opposition is weak. [Citations.]

A party cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial. [Citations.] [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064- 65.)

When the moving party is a plaintiff, the initial burden is met by a showing that there is no defense to the action or rather by proving each element of the cause or causes of action. (See Code Civ. Proc., § 437c, subd. (p)(1).)

Likewise, defendants can meet their initial burden by showing that a cause or causes of action have no merit because one or more elements of the claims “cannot be established.” (See Code Civ. Proc., § 437c subd. (p)(2).)

Once the movant has met the initial burden, the burden then shifts to the opposing party to produce admissible evidence showing that there is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.)

However, if the movant does not satisfy the initial burden, the motion must be denied and it is unnecessary for the court to consider the opposition. (Swanson v. Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th 954, 963.)

The party opposing an MSJ must provide proof showing a triable issue of fact; equivocal evidence will not suffice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 10:203 (“Weil & Brown”), citing Ahrens v. Sup. Ct. (Pac. Gas & Elec. Co. (1988) 197 Cal.App.3d 1134, 1152.)

Declarations and evidence offered in opposition to a motion for summary judgment must be liberally construed, while the moving party’s evidence must be construed strictly.

The opposing party cannot controvert the moving party’s declarations by evidence “based on speculation, imagination, guess work, or mere possibilities.” (Weil & Brown, supra, § 10:203.1, citing Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481.)

Opposing declarations, while liberally construed, cannot contain inadmissible evidence, either hearsay or conclusions. (Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.)

Any evidentiary objections not made are deemed waived.

The Court, additionally, must consider reasonable inferences drawn from the presented evidence. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 843.)

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The opposing party may not rely upon the allegations or denials in its pleadings, but must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).)

The opposing party’s failure to file counter-declarations or opposition does not relieve the moving party of the above burden, i.e., it is still the moving party’s burden to prove he is entitled to judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-45; FSR Brokerage, Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73-75, fn. 4.)

The court’s sole function on a motion for summary judgment is issue finding, not issue determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)

The judge must determine from the evidence submitted whether there is a triable issue as to any material fact. (Id. at p. 926.)

If there is a single such issue, the motion must be denied. (Joseph Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 914.)

Motion for Summary Adjudication The same rules of summary judgment must apply to the summary adjudication of issues.

If the pleadings are not defective, the court may then determine from the evidence in support of and in opposition to the motion “whether the triable issues apparently raised by them are real or merely the product of adept pleading.” (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536.)

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims of damages, or one or more issues of duty. (Code Civ. Proc., § 437c, subd. (f); Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226.)

A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. (Lomes v. Hartford Financial Service Group, Inc. (2001) 88 Cal.App.4th 127, 131.)

Furthermore, the motion for summary adjudication must specifically identify each specific cause of action, affirmative defense, claim of damages or issue of duty to be adjudicated, and repeat each such identification verbatim in the separate statement, even if each item to be adjudicated relies on the same evidence offered to support summary judgment. (Rules of Court, Rule 3.1350(b).)

Summary adjudication is granted when the moving party establishes that there are no triable issues of material fact, and the moving party is entitled to entry of judgement as a matter of law. (RC Royal Development and Realty Corp. v. Standard Pacific Corp. (2009) 177 Cal.App.4th 1410.)

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Third Cause of Action FEHA harassment claims require conduct that is (1) unwelcome, (2) because of a protected characteristic, and (3) sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive working environment. (Gov’t. Code, § 12940, subd. (j); Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

Ordinary workplace conflict, personality disputes, and job-related tensions, even if stressful, do not constitute harassment, absent protected-class animus and severe or pervasive conduct. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).)

The requirement for severe or pervasive harassment means that a reasonable person who is subject to the conduct would find the conduct so offensive that it alters the conditions of that person’s employment. (CACI 2521.)

In determining whether conduct is severe or pervasive, the court looks to the circumstances including the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or just a mere offensive utterance. (Miller, supra, 36 Cal.4th at p. 452.)

Harassment must be more than ordinary workplace disputes, personality conflicts, or criticism; it must be conduct that a reasonable person would find hostile, oppressive, or abusive. (Miller, supra, 36 Cal.4th at p. 462.)

In Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870-871(Serri), the court explained that when a claim is made under Government Code section 12940, subdivision (j) for hostile work environment, the plaintiff is required to produce evidence that the particular defendant engaged in a hostile work environment by engaging in derogatory references or conduct relating to plaintiffs protected status.

When the defense provides declarations/testimony that the defendant did not make any hostile or derogatory statements about plaintiff’s protected status, and plaintiff has no evidence or testimony to the contrary, summary judgment is appropriately granted. (Serri, supra, 226 Cal.App.4th at pp. 870-871.)

Srivastava’s alleged attacks on other employees that Bohlender supervised and received declarations/information from while investigating Grimm’s, is sufficient evidence that would show that Srivastava created a hostile work environment.

In addition, Srivastava’s motion does not meaningfully address this central allegation of the FAC’s additional LGBTQ-hostile workplace facts.

It therefore fails to dispose of the claims and theories actually at issue. (UF Nos. 8, 21-22, 28, and 33.)

Furthermore, there are also allegations that Srivastava’s feared Plaintiff would attach inappropriate content or profanity, phonograph, and sexual child abuse to a work document, which

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a reasonable jury could find would created a hostile work environment, that include issues surrounding Bohlender’s status of just not being a male, but being a homosexual male.

This in addition to the fact that Bohlender suffered a heart attack shortly after some of these allegations were made, would support a hostile or abusive working environment and a claim for harassment under Government Code section 12940, subdivision (j).

Srivastava’s UF No. 28 asserts that she never engaged in communications or conduct relating to Plaintiff’s disability, sexual orientation, or age.

That fact is disputed.

Defendant Srivastava testified she told Human Resources she feared Plaintiff could put pornography into work materials associated with her because he was “already out to get me.”

When asked why she associated Plaintiff with pornography, she referenced Redlands employees being known nationwide for child sexual abuse and stated that Plaintiff was one of Redlands’ employees. (UF Nos. 21-22, 28, 33.)

That accusation was not supported by any pornographic statement or conduct by Plaintiff.

Srivastava admitted Plaintiff never said anything to her about pornography, never showed her pornography, and was not known to her to have engaged in child sexual abuse.

She also admitted she had never expressed a fear that anyone else would put pornography on work associated with her. (UF Nos, 28 and 33.)

In the case at hand, the protected-status connection is also disputed.

Srivastava testified she knew Plaintiff was gay, and Plaintiff testified Lisa Bruich told him Srivastava said she feared he would insert pornography and obscene language into the FAQ, which Plaintiff understood as referring to gay pornography. (UF Nos. 8, 21-22, 28, and 33.)

A jury could find that this was sexualized, humiliating conduct tied to Plaintiff’s LGBTQ protected status.

Srivastava does not meaningfully address that evidence, so the motion does not negate the harassment claim.

Eleventh Cause of Action The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Severe emotional distress consists of fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376.)

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Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him or her power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 230.)

Srivastava argues the Civil Rights Department (CRD) complaint and the FAC did not separately reference Intentional Infliction of Emotional Distress (IIED). (UF # 31.)

That does not dispose of the claim.

IIED is a common-law tort claim pleaded in this civil action.

The issue is whether Bohlender can prove the elements of the tort.

The CRD complaint also alleged discrimination, harassment, and retaliation based on work-related events, including dealings and conduct with Srivastava. (UF # 30.)

Srivastava also argues the IIED claim relies on the same facts as the harassment claim. (UF # 34.)

That is not a basis for summary adjudication.

A plaintiff may rely on the same conduct to support multiple causes of action where the elements of each claim are met.

In the case at ahnd,, the same disputed evidence that supports the harassment claim also supports triable issues regarding outrageous conduct, reckless disregard, causation, and severe distress. (UF Nos. 21-25, 28, and 33-34.)

FEHA discrimination and harassment claims are those that fall outside the normal incident of employment thereby they are not subject to the WCA’s exclusivity rule. (Nazir v. United Airlines, Inc. (2009) 176 Cal.App.4th 243, 288 (Nazir).)

Therefore, an IIED claim predicated upon discriminatory and harassing behavior also falls outside the WCA’s exclusivity rule. (Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101.)

Furthermore, Plaintiff have every right to plead alternative claims on the same facts.

Srivastava argues that the purported conduct is not outrageous because personnel decisions are not outrageous conduct. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 (Janken).)

As a matter of law, ordinary workplace disputes, personality conflicts and supervisory tensions do not constitute outrageous conduct. (Janken, supra, 46 15 Cal.App.4th 55, 80.)

However, as the Court in Janken also stated, harassment consists of a type of conduct not necessary for performance of a job.

Instead, harassment is conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66.)

Harassment is not conduct of a type necessary for management of the

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employer’s business or performance of an employee’s job.

It is well settled that employees can be held individually liable for harassment under Government Code section 12940, subdivision (j). (Id.)

Plaintiff proceeds against individual Defendant Srivastava for harassment based upon comments made by Defendant Srivastava that she feared Plaintiff would insert pornography and obscene language into the FAQ, which Plaintiff understood as referring to gay pornography. (UF Nos. 8, 21-22, 28, and 33.)

A jury could find that this was sexualized, humiliating conduct tied to Plaintiff’s LGBTQ protected status.

Further, based upon the evidence presented, allegations of Srivastava with regard to pornography or porn, or potential child sexual abuse towards an educator or teacher, and especially in responses to the Grimm Complaint, could be very damming to Bohlender and could have ended his career, not to mention that Bohlender had a heart attack shortly after these allegations were made.

In Nazir, the Court cautioned that, “[M]any employment cases present issues of intent, motive, and hostile working environment, issues not determinable on paper.

Such cases we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be.” (Nazir, supra, 176 Cal.App.4th at p. 286.)

The McDonnell Douglas burden-shifting framework does not apply to Plaintiff’s hostile work environment claim.

Since ‘there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.)

“[A]n employer is strictly liable for all acts of sexual harassment by a supervisor.” (State Dept. of Health v. Superior Court (2003) 31 Cal.4th 1026, 1042.)

In the case at hand, based upon the evidence presented, a reasonable jury could find based upon the evidence presented that Srivastava (1) was intentional in her allegations; (2) she knew that it would cause Plaintiff Bohlender emotional distress; and (3) those allegations were outrageous conduct.

RULING 1. Defendant’s Motion for Summary Judgment/Adjudication is DENIED.

2. Movant to give Notice.

Undisputed Material Facts: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 25, 26, 30, 31, 32.

Disputed Material Facts: 4, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29,, 33, 34

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Materials considered: Notice of Motion and Motion for Summary Judgment or alternatively Adjudication; Memorandum of Points and Authorities in Support of Motion; Separate Statement of Undisputed Material Facts in Support of Motion; Declaration of Deepika Srivastava; Lodgment of Exhibits in Support of Motion; Memorandum of Points and Authorities in Opposition of Motion; Separate Statement in Opposition of Motion; Declaration of Darius Gleason in Opposition of Motion; Reply Papers; Declaration of Randall L. Winet in Support of Reply.

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