Moses v. Aerotek Inc. et al

Filing 48

ORDER DENYING 35 DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 4/27/2021. (blflc1S, COURT STAFF) (Filed on 4/27/2021)

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Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 1 of 14 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KATHERYN MOSES, 9 Plaintiff, v. 10 United States District Court Northern District of California 11 AEROTEK, INC., a Maryland corporation, Defendant. 12 Case No. 17-cv-06251-BLF ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [Re: ECF 35] 13 14 15 Following the termination of her employment by Defendant Aerotek, Inc., Plaintiff 16 Katheryn Moses filed the present action for retaliation, failure to prevent retaliation, and failure to 17 prevent harassment in violation of California’s Fair Employment and Housing Act (“FEHA”), and 18 failure to provide records in violation California’s Labor Code. Aerotek seeks partial summary 19 judgment with respect to Moses’ FEHA claims and her claim for punitive damages. 20 21 22 The motion is DENIED for the reasons discussed below. I. FACTUAL BACKGROUND Aerotek is a staffing company that places workers in positions at numerous companies. In 23 September 2014, Aerotek hired Moses as a Recruiter in its San Jose office. See Moses Dep. 24 281:19-282:8, Baysinger Decl. Exh. 1, ECF 38-1. Approximately one year later, in October 2015, 25 she was promoted to the position of Account Manager. See id. 291:21-24. In December 2016, 26 Moses achieved a “contest win,” which is a term used at Aerotek to mean “a benchmark 27 established for employees to earn bonuses and an incentive trip.” See id. 68:15-28; Lane Dep. 28 82:15-21, Baysinger Decl. Exh. 2, ECF 38-2. The contest win entitled Moses to go on a company Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 2 of 14 1 trip to Cancun, Mexico in January or February 2017. See Moses Dep. 26:16-27:6, 146:3-7, 2 Baysinger Decl. Exh. 1, ECF 38-1. Moses did not get to take the trip, however, because her 3 employment was terminated on January 25, 2017. See Moses Dep. 90:6-7, 146:4-7, Smith Decl. 4 Exh. B, ECF 35-3. The parties dispute the circumstances of, and reasons for, her termination. 5 Moses claims that she was terminated in retaliation for reporting the inappropriate conduct of a 6 senior employee at the San Jose office, Onyeka Ossai. Aerotek claims that Moses was terminated 7 for performance issues, including interviewing with other companies during Aerotek work hours. 8 Moses’ Relationship with Ossai 9 According to Moses, Ossai pursued her and had a sexual relationship with her without disclosing that he was also dating another Aerotek employee named Michelle Sanchez. See Moses 11 United States District Court Northern District of California 10 Dep. 162:3-165:23, 166:22-167:7, 372:1-6, Baysinger Decl. Exh. 1, ECF 38-1. Although Ossai 12 did not directly supervise Moses, she considered him a superior because he was a senior manager. 13 See id. 367:16-18. Moses stated that at the time she did not view Ossai’s attention as harassment, 14 stating, “I mean, I was like 22, 23 years old. I don’t think I knew what even that meant, other than 15 he was just a senior person in the office and was interested in me.” Id. 371:1-4. Moses testified 16 that she and Ossai began a sexual relationship in April or May of 2015, and that they had sex two 17 or three times at his home and at the home of one of his friends. See id. 163:24-164:8, 166:22- 18 167:7, 372:1-6. Ossai was on Moses’ interview panel when she was promoted to the position of 19 Account Manager in October 2015, after the two had sex. See id. 296:4-16, 367:17-23. 20 Moses testified that her relationship with Ossai ended in September 2016, when she 21 encountered him and Sanchez at a San Francisco club. See Moses Dep. 167:8-168:25, Baysinger 22 Decl. Exh. 1, ECF 38-1. Moses was at the club with friends and family, celebrating her birthday, 23 and she had invited Ossai to attend her party. See id. 167:8-24. It is unclear whether Ossai knew 24 that Moses’ party was happening at that particular club when he arrived with Sanchez, or whether 25 the meeting was happenstance. Moses felt humiliated, because she thought she and Ossai were in 26 a relationship. See id. 387:8-25. 27 28 Ossai claims that he and Moses had a single romantic encounter in April 2015. Ossai Dep. 34:1-10, Baysinger Decl. Exh. 5, ECF 38-5. Scott Lane, the Director of Business Operations for 2 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 3 of 14 1 Aerotek’s San Jose Office, testified that Ossai told him the two had “hooked up a couple times,” 2 Moses wanted more, and Ossai let her know he was not interested. Lane Dep. 102:10-22, Smith 3 Decl. Exh. C, ECF 135-4. 4 December 21, 2016 Incident 5 Lane hosted a company event on December 21, 2016. See Moses Dep. 30:2-6, Baysinger 6 Decl. Exh. 1, ECF 38-1. The event was a bicycle tour of bars in San Jose. See id. 30:2-31:20. 7 The bicycle tour started at approximately noon, and after several stops at different bars the 8 participants ended up at San Pedro Market in San Jose in the early evening. See id. Sanchez had 9 left Aerotek, and did not attend the bicycle tour, but she joined Ossai at San Pedro Market afterward. See id. 34:4-9. Upon seeing Sanchez, Moses decided to “clear the air,” and went to 11 United States District Court Northern District of California 10 speak with her. Id. 26:16-27:10. Ossai responded by confronting Moses and engaging in a loud 12 argument with her. See id. 27:16-28:5, 136:3-137:24. Moses claims that Ossai pushed her hard 13 enough that she might have fallen if others hadn’t been there to help her. See id. 137:19-11. 14 Moses went home in a Lyft or Uber car. See id. 139:7-14. During the car ride home, Moses called 15 Lane. See id. 129:16-130:2, 140:11-15. Moses told Lane that there had been “an inappropriate 16 relationship” between herself and Ossai, there had been an incident that evening during which 17 Ossai put his hands on her, and she was very upset. See id. 130:3-10. Lane told Moses to stay 18 home the next day, and since Moses was scheduled to be out for the holidays starting on 19 December 23, 2016, she did not return to the office until January 2017. See id. 359:3-6. 20 Lane Fails to Initiate a Formal Investigation 21 Lane called Ossai on December 22, 2016 to tell him about Moses’ call and get his side of 22 the story. Lane Dep. 101:3-11, Smith Decl. Exh. C, ECF 35-4. Lane told Ossai that Moses was 23 “pretty hysterical and intoxicated” during the call. See id. Ossai admitted to confronting Moses 24 but denied pushing her. See id. 101:12-102:1. Lane was scheduled to be off work for the next two 25 weeks, so he did not speak with Ossai or Moses again until January 2017. See id. 99:19-100:11. 26 Once Lane, Moses, and Ossai returned to the office in January 2017, Lane urged Moses to 27 sit down with Ossai and “work it out.” Moses Dep. 146:11-147:2, Baysinger Decl. Exh. 1, ECF 28 38-1. Moses refused. See id. 147:3-5. A week later, Lane again tried to get Moses to sit down 3 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 4 of 14 1 with Ossai, and when Moses said she did not feel comfortable being in a room with Ossai, Lane 2 stated that he had no further advice for Moses and was “at a loss as to what to do.” Id. 152:12-14. 3 Lane suggested that Moses reach out to Sheila Simmons in Aerotek’s Human Resources 4 department. See id. 152:12-24. Simmons was the Human Resources Manager for the Northwest 5 Region, which includes San Jose. See Simmons Dep. 20:8-21, Smith Decl. Exh. E, ECF 35-6. 6 Simmons Begins a Formal Investigation on January 19, 2021 7 Lane himself contacted Simmons to ask for guidance on how to proceed. See Lane Dep. 8 132:1-13, Smith Decl. Exh. C, ECF 35-4. Simmons’ notes indicate that Lane called her on 9 January 19, 2017. See Simmons’ Notes, Smith Decl. Exh. H, ECF 35-9. Simmons’ notes also indicate that as of January 19, 2017, Lane had not formally addressed the matter with either Moses 11 United States District Court Northern District of California 10 or Ossai. See id. Simmons told Lane that she was opening a formal investigation. See Simmons 12 Dep. 60:17-23, Smith Decl. Exh. E, ECF 35-6. Simmons also immediately reported the situation 13 to Aerotek’s Regional Vice President, Eric Bowen. See id. 54:7-17. 14 Bowen reprimanded Lane for his handling of Moses’ complaint. Lane Dep. 137:17-23, 15 Baysinger Decl. Exh. 2, ECF 38-2. Bowen warned Lane that if a similar incident were to arise in 16 the future, Lane’s job could be at risk if he did not report it sooner. See id. 17 Moses and Simmons spoke on January 19, 2017, after Lane had called Simmons. See 18 Simmons’ Notes, Smith Decl. Exh. H, ECF 35-9. Moses disclosed her sexual relationship with 19 Ossai and indicated that she had not known Ossai also was dating someone else from the office. 20 See Moses Dep. 162:1-24, Baysinger Decl. Exh. 1, ECF 38-1. 21 Simmons’ notes reflect that she spoke with eight individuals in the course of her 22 investigation. See Simmons’ Notes, Smith Decl. Exh. H, ECF 35-9. It appears that much of 23 Simmons’ investigation was focused on Moses’ conduct unrelated to the December 21, 2016 24 incident, including Moses’ attire and conduct at a different company party, Moses’ absences from 25 work, and Moses’ interviews at other companies. See id. Simmons’ notes do not reflect that she 26 interviewed Ossai. See id. Simmons testified that she did speak with Ossai, but that their 27 discussion of the December 21, 2016 incident was limited to Simmons asking whether he put his 28 hands on Moses. See Simmons Dep. 90:16-25, Baysinger Decl. Exh. 6, ECF 38-6. When 4 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 5 of 14 1 Simmons asked Ossai about his relationship with Moses, he was evasive. See id. 91:3-13. 2 Simmons did not ask Ossai about his relationship with Sanchez. See id. 95:3-6. 3 Moses is Written Up on January 20, 2017 4 On January 20, 2017, Lane presented Moses with a “Counseling Form,” a disciplinary 5 write-up for engaging in a sexual relationship with a co-worker in violation of Aerotek policy. See 6 Counseling Form, Smith Decl. Exh. I, ECF 35-10; Moses Dep. 315:3-7, Baysinger Decl. Exh. 1, 7 38-1. Moses testified that when Lane gave her the form, he was angry. See Moses Dep. 195:2- 8 197:7. Lane told Moses that her complaint could have serious implications for Ossai’s career, that 9 Ossai would have to meet with the Regional Vice President, Eric Bowen, and that Ossai might not 10 get promoted. See id. United States District Court Northern District of California 11 Moses is Fired on January 25, 2017 12 Moses was terminated on January 25, 2017. See Moses Dep. 90:6-7, Smith Decl. Exh. B, 13 ECF 35-3. Aerotek asserts that the termination was based on performance issues, including 14 Moses’ conduct in interviewing with other companies during Aerotek work hours. Moses 15 contends that she was terminated in retaliation for her complaint about Ossai. 16 DFEH Complaint and Present Action 17 Moses filed a DFEH complaint on June 2, 2017. See DFEH Compl., Smith Decl. Exh. L, 18 ECF 35-13. She filed the present action in the Santa Clara County Superior Court on September 19 1, 2017. See Not. of Removal Exh. A (Compl.), ECF 1. Aerotek removed the action to federal 20 district court on October 27, 2017. See Not. of Removal, ECF 1. The complaint contains claims 21 for: (1) retaliation in violation of FEHA; (2) failure to prevent harassment and retaliation in 22 violation of FEHA; (3) failure to timely furnish payroll records in violation of California Labor 23 Code § 226; and (4) failure to timely furnish personnel records in violation of California Labor 24 Code § 1198.5. See Not. of Removal Exh. A (Compl.), ECF 1. 25 26 II. LEGAL STANDARD “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 28 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 5 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 6 of 14 1 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 2 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). “Where the 3 moving party meets that burden, the burden then shifts to the non-moving party to designate 4 specific facts demonstrating the existence of genuine issues for trial.” Id. “[T]he non-moving 5 party must come forth with evidence from which a jury could reasonably render a verdict in the 6 non-moving party’s favor.” Id. “The court must view the evidence in the light most favorable to 7 the nonmovant and draw all reasonable inferences in the nonmovant’s favor.” City of Pomona, 8 750 F.3d at 1049. “Where the record taken as a whole could not lead a rational trier of fact to find 9 for the nonmoving party, there is no genuine issue for trial.” Id. (internal quotation marks and 10 United States District Court Northern District of California 11 12 citation omitted). III. DISCUSSION Aerotek seeks summary judgment on Claim 1 for retaliation in violation of FEHA and 13 Claim 2 for failure to prevent harassment and retaliation in violation of FEHA. Aerotek also seeks 14 summary judgment on Moses’ claim for punitive damages. 15 In opposition, Moses clarifies that she is not asserting a claim for harassment or failure to 16 prevent harassment, and that her FEHA claims are limited to retaliation and failure to prevent 17 retaliation. See Opp. at 3, ECF 37. Moses also clarifies that she is not seeking recovery for any 18 conduct not alleged in her DFEH complaint, or for any conduct that occurred more than one year 19 before she filed her DFEH complaint. See id. 20 Aerotek contends that Moses’ FEHA claims fail because she was fired for legitimate, non- 21 retaliatory reasons, and that her punitive damages claim fails because there is no evidence of 22 oppression, fraud, or malice by a managing agent of Aerotek. Moses argues that Aerotek’s 23 proffered reasons for termination are a pretext for retaliation and that there are disputed facts 24 regarding Aerotek’s motivation. Moses also argues that there are disputed facts as to oppression, 25 fraud, or malice by a managing agent of Aerotek. 26 Before turning to the parties’ arguments on these points, the Court addresses two 27 evidentiary objections raised in Moses’ opposition brief. First, Moses objects to the witness 28 statements memorialized in Simmons’ investigative notes to the extent offered for the truth of the 6 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 7 of 14 1 matters asserted by the witnesses. That objection is SUSTAINED. See Fed. R. Evid. 801-02; 2 United States v. Reyes, 239 F.R.D. 591, 600 (N.D. Cal. 2006) (summaries, notes and memoranda 3 related to the interviews of employees were inadmissible hearsay). While the Court does rely on 4 Simmons’ notes to show the scope of her investigation, the notes are not admissible for the truth 5 of the matters asserted by the witnesses. Second, Moses objects to Lane’s testimony regarding 6 what witnesses to the December 21, 2016 incident told him they observed. That objection is 7 SUSTAINED on the basis that the testimony is inadmissible hearsay. See Fed. R. Evid. 801-02. 8 A. 9 As noted above, Moses asserts two claims under FEHA, retaliation and failure to prevent 10 United States District Court Northern District of California 11 FEHA Claims retaliation. The Court addresses those claims in turn. 1. Claim 1 for Retaliation in Violation of FEHA 12 Claim 1 asserts that Aerotek terminated Moses in retaliation for her reporting regarding 13 Ossai, in violation of FEHA. California Government Code § 12940(h) makes it unlawful “[f]or 14 any employer, labor organization, employment agency, or person to discharge, expel, or otherwise 15 discriminate against any person because the person has opposed any practices forbidden under this 16 part or because the person has filed a complaint, testified, or assisted in any proceeding under this 17 part.” Cal. Gov’t Code § 12940(h). 18 A FEHA claim may be evaluated using the burden-shifting analysis applied to Title VII 19 cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Yanowitz v. L’Oreal USA, 20 Inc., 36 Cal. 4th 1028, 1042 (2005). At step one of the analysis, the plaintiff must make out a 21 prima facie case of retaliation. See id. “Once an employee establishes a prima facie case, the 22 employer is required to offer a legitimate, nonretaliatory reason for the adverse employment 23 action.” Id. “If the employer produces a legitimate reason for the adverse employment action, the 24 presumption of retaliation drops out of the picture, and the burden shifts back to the employee to 25 prove intentional retaliation.” Id. (quotation marks and citation omitted). 26 27 28 a. Prima Facie Case “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an 7 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 8 of 14 1 adverse employment action, and (3) a causal link existed between the protected activity and the 2 employer’s action.” Yanowitz, 36 Cal. 4th at 1042. 3 Aerotek contends that Moses cannot establish a prima facie case of retaliation because she did not engage in protected conduct. “The statutory language of section 12940(h) indicates that 5 protected conduct can take many forms.” Yanowitz, 36 Cal. 4th at 1042. “Specifically, section 6 12940(h) makes it an unlawful employment practice ‘[f]or any employer . . . to discharge, expel, 7 or otherwise discriminate against any person because the person has opposed any practices 8 forbidden under this part or because the person has filed a complaint, testified, or assisted in any 9 proceeding under this part.’” Id. (quoting Cal. Gov’t Code § 12940(h)). Applying this standard, 10 the question is whether Moses’ reporting regarding Ossai constituted reporting of “any practices 11 United States District Court Northern District of California 4 forbidden under this part,” that is, practices forbidden by FEHA. 12 Aerotek asserts that the answer to this question is no, arguing that Moses’ reporting related 13 only to “a heated argument between two previously romantic individuals.” Mot. at 16, ECF 35. 14 The Court does not find Aerotek’s argument persuasive. As discussed above, Moses reported to 15 both Lane and Simmons that a senior employee had engaged in sexual relationships with at least 16 two employees junior to him, including Moses; the December 21, 2016 incident arose out of those 17 relationships; and Moses felt uncomfortable around Ossai after the incident. Lane and Simmons 18 discussed that one of the reasons for Aerotek’s anti-dating policy was the recognition that dating 19 in the workplace could give rise to harassment claims. See Lane Dep. 42:16-43:14, Baysinger 20 Decl. Exh. 2, ECF 38-2. Ossai’s comments to Moses on December 21, 2016 went directly to her 21 sexuality, as by his own admission Ossai called Moses a “lying bitch” and said she “was just mad 22 because nobody wanted her.” Ossai Dep. 68:16-18, Baysinger Decl. Exh. 5, ECF 38-5. 23 Based on this record, the Court finds that Moses reasonably could have believed she was 24 reporting discriminatory or harassing conduct within the meaning of FEHA. “[A]n employee’s 25 conduct may constitute protected activity for purposes of the antiretaliation provision of the FEHA 26 not only when the employee opposes conduct that ultimately is determined to be unlawfully 27 discriminatory under the FEHA, but also when the employee opposes conduct that the employee 28 reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct 8 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 9 of 14 1 is ultimately found to violate the FEHA.” Yanowitz, 36 Cal. 4th at 1043. Thus, for purposes of 2 establishing a prima facie case of retaliation, Moses has presented sufficient evidence to show that 3 she engaged in protected activity. 4 Aerotek does not challenge the remaining elements of a prima facie case, adverse 5 employment action and causal link. Moreover, Moses has presented evidence sufficient to satisfy 6 those elements. There is no dispute that Moses was terminated and that termination is an adverse 7 employment action under FEHA. See McCoy v. Pac. Mar. Assn., 216 Cal. App. 4th 283, 299 8 (2013) (FEHA protects against “ultimate employment actions such as termination” (quotation 9 marks and citation omitted)). Evidence of a causal link between Moses’ reporting and her termination includes Moses’ testimony that Lane told her he was angry about her complaint and 11 United States District Court Northern District of California 10 that the complaint threatened Ossai’s career, see Moses Dep. 195:2-197:7, and the temporal 12 proximity between Moses’ reporting and her termination. 13 14 15 16 Aerotek’s motion for summary judgment on the ground that Moses cannot make out a prima facie case of retaliation is DENIED. b. Legitimate, Non-Retaliatory Reason The burden thus shifts to Aerotek to articulate a legitimate, non-retaliatory reason for 17 Moses’ termination. Aerotek claims that Lane terminated Moses because her performance was 18 unsatisfactory, she was interviewing for other jobs during work hours, and she was not truthful 19 when confronted about interviewing. Lane testified at his deposition that he had concerns about 20 Moses’ performance dating back to April or July 2016 and that Moses consistently missed the 21 morning office meetings. Lane Dep. 61:15-67:21, Smith Decl. Exh. C, ECF 35-4. Lane also 22 stated that he discovered that Moses had interviewed at Facebook in November 2016 when she 23 was supposed to be meeting with a customer. See id. 83:24-84:6. According to Lane, Moses lied 24 about the Facebook interview when confronted. See id. 88:15-90:10. Lane says that he warned 25 Moses that if she interviewed with another company when she was supposed to be with a client, 26 she would be terminated. See id. 90:18-25. Lane later was informed that Moses was interviewing 27 with Uber when she was supposed to be at client meetings. See id. 155:1-10. Lane testified that 28 he terminated Moses because he felt that he could not trust her, because of her absenteeism, and 9 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 10 of 14 1 2 because of performance issues. See id. 157:17-21. Lane’s testimony is sufficient to meet Aerotek’s burden to articulate a legitimate, non- 3 discriminatory reason for the termination. Aerotek also submits Simmons’ testimony, as Simmons 4 consulted with Lane about Moses’ termination. See Simmons Dep. 152:16-153:15, Smith Decl. 5 Exh. E, ECF 35-6. 6 7 c. Pretext The burden thus shifts back to Moses to present evidence that Aerotek’s proffered reasons 8 for her termination were pretextual, and that actually she was terminated in retaliation for 9 reporting against Ossai. Moses presents substantial evidence from which a finder of fact conclude 10 United States District Court Northern District of California 11 that Aerotek’s reasons were pretextual. First, although Lane testified that he had concerns about Moses’ performance dating back 12 to mid-2016, none of those concerns were documented prior to 2017. See Lane Dep. 64:12-17, 13 67:14-21, 17-2-9. In fact, Moses achieved a contest win in December 2016, meaning that she had 14 hit a company benchmark that entitled her to a trip to Cancun. See Lane Dep. 82:15-21, Baysinger 15 Decl. Exh. 2, ECF 38-2; Moses Dep. 26:16-27:6, 146:3-7, Baysinger Decl. Exh. 1, ECF 38-1. The 16 lack of documentation and the concrete evidence that Moses had hit “contest” undermine Lane’s 17 assertion that Moses was having performance issues. 18 With respect to Lane’s testimony that he could not trust Moses in light of her interviewing 19 activities, Lane admitted during his deposition that it was common for Aerotek employees to 20 interview with other companies, and that he had never terminated another employee for interview- 21 related activities. See Lane Dep. 85:6-22, Smith Decl. Exh. C, ECF 35-4. 22 Moreover, Lane failed to open a formal inquiry when Moses informed him of her prior 23 sexual relationship with Ossai and his conduct on December 21, 2016. To the contrary, Lane 24 repeatedly asked Moses to sit down with Ossai and make nice. Moses Dep. 146:11-152:3, 25 Baysinger Decl. Exh. 1, ECF 38-1. It was only after Moses refused to do so that Lane called 26 Simmons in Human Resources. See Lane Dep. 132:1-13, Smith Decl. Exh. C, ECF 35-4. Moses 27 testified that after Simmons opened the inquiry, Lane was angry with her, and on January 20, 2017 28 he expressed his concern about how the inquiry might impact Ossai’s career. See Moses Dep. 10 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 11 of 14 1 195:2-197:7, Baysinger Decl. Exh. 1, ECF 38-1. Lane fired Moses only days later, on January 25, 2 2017. See Moses Dep. 90:6-7, 146:4-7, Smith Decl. Exh. B, ECF 35-3. 3 The Court concludes that this evidence creates a factual dispute as to the motivation for 4 terminating Moses. In particular, the Court finds that a trier of fact could conclude that Lane had a 5 retaliatory animus based on the lack of documentation regarding Moses’s asserted performance 6 deficiencies in 2016, her demonstrable success in 2016 based on her contest win, Lane’s 7 admission that he had never terminated another employee for interview-related activities, evidence 8 that Lane was angry at Moses for jeopardizing Ossai’s career, and the temporal proximity between 9 Moses’ reporting and her termination. 10 United States District Court Northern District of California 11 12 13 Aerotek’s motion for summary judgment on Claim 1 for retaliation in violation of FEHA is DENIED. 2. Claim 2 for Failure to Prevent Retaliation in Violation of FEHA As limited by Moses’ opposition brief, Claim 2 asserts that Aerotek failed to prevent 14 retaliation in violation of FEHA. California Government Code § 12940(k) makes it an unlawful 15 employment practice for an employer “to fail to take all reasonable steps necessary to prevent 16 discrimination and harassment from occurring.” Cal. Gov’t Code § 12940(k). Courts have 17 interpreted this provision to provide a claim against an employer for failure to prevent 18 discrimination, harassment, or retaliation. See Hicks v. Netflix, Inc., 472 F. Supp. 3d 763, 772 19 (C.D. Cal. 2020). The elements of the claim are: “(1) that the plaintiff was subjected to 20 discrimination, harassment, or retaliation; (2) that the defendant failed to take all reasonable steps 21 to prevent discrimination, harassment, or retaliation; and (3) that this failure caused the plaintiff to 22 suffer injury, damage, loss, or harm.” Id. (emphasis in original). An employer cannot be held 23 liable for failure to prevent unlawful conduct under FEHA where no such conduct occurred. See 24 Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015) (“There cannot be a claim 25 for failure to take reasonable steps necessary to prevent sex discrimination under section 12940, 26 subdivision (k) if actionable sex discrimination has not been found.”). 27 28 Aerotek contends that because it has demonstrated that no unlawful retaliation occurred, it cannot be held liable for failure to prevent such retaliation. As discussed above, there are disputed 11 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 12 of 14 1 facts that preclude summary judgment on Moses’ claim for retaliation in violation of FEHA. 2 Accordingly, this argument is without merit. 3 Aerotek also contends that it cannot be held liable because it had adequate anti-retaliation 4 policies and complaint mechanisms. In support of that argument, Aerotek cites to Simmons’ 5 testimony regarding its policies regarding retaliation and procedures for making and investigating 6 complaints. See Simmons Dep. 30:10-31:25, Smith Decl. Exh. E, ECF 35-6. Aerotek argues that 7 the policies worked in this case, because Simmons did open an investigation and after she did so 8 there were no further incidents between Moses and Ossai. Aerotek’s arguments ignore the fact 9 that Lane failed to open a formal inquiry when Moses reported to him about Ossai, and that there are disputed issues as to whether Lane retaliated against Moses for that reporting by firing her. 11 United States District Court Northern District of California 10 Aerotek’s evidence is simply insufficient to meet its initial burden on summary judgment to 12 establish that it “took all reasonable steps” to protect Moses from retaliation. 13 14 Aerotek’s motion for summary judgment on Claim 2 for failure to prevent retaliation in violation of FEHA is DENIED. 15 B. Punitive Damages 16 Moses seeks punitive damages based on Aerotek’s alleged FEHA violations. California 17 law provides that, “In an action for the breach of an obligation not arising from contract, where it 18 is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, 19 or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of 20 example and by way of punishing the defendant.” Cal. Civ. Code § 3294(b). Where punitive 21 damages are sought against a corporate employer such as Aerotek, the culpable conduct “must be 22 on the part of an officer, director, or managing agent of the corporation.” Id. 23 Aerotek contends that Moses cannot recover punitive damages in this case, because she 24 cannot establish culpable conduct on the part of an officer, director, or managing agent. In 25 opposition, Moses argues that both Lane and Simmons qualify as “managing agents” under the 26 statute such that punitive damages may be imposed on Aerotek. 27 The California Supreme Court has held that “the Legislature intended the term ‘managing 28 agent’ to include only those corporate employees who exercise substantial independent authority 12 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 13 of 14 1 and judgment in their corporate decisionmaking so that their decisions ultimately determine 2 corporate policy.” White v. Ultramar, Inc., 21 Cal. 4th 563, 566-67 (1999). “[S]upervisors who 3 have broad discretionary powers and exercise substantial discretionary authority in the corporation 4 could be managing agents.” Id. at 577. “Conversely, supervisors who have no discretionary 5 authority over decisions that ultimately determine corporate policy would not be considered 6 managing agents even though they may have the ability to hire or fire other employees.” Id. “The 7 scope of a corporate employee’s discretion and authority under our test is therefore a question of 8 fact for decision on a case-by-case basis.” Id. at 567. 9 Given the California Supreme Court’s clear guidance, district courts within the Ninth Circuit have denied summary judgment on punitive damages, finding that “[w]hether or not an 11 United States District Court Northern District of California 10 employee qualifies as a ‘managing agent’ is not as simple as Defendants would lead the Court to 12 believe.” DesRosiers v. Hartford, 979 F. Supp. 2d 1036, 1053 (E.D. Cal. 2013); see also 13 McCullough v. Xerox Corp., No. 13-CV-04596-HSG, 2015 WL 5769620, at *12 (N.D. Cal. Oct. 14 2, 2015) (“Because Plaintiff’s wrongful termination claim survives summary judgment, the Court 15 finds it would be premature to dismiss her request for punitive damages.”); Larkin v. Home Depot, 16 Inc., No. 13-CV-2868-LB, 2015 WL 1049716, at *3 (N.D. Cal. Mar. 9, 2015) (“[T]the question 17 whether district-manager Cozy was a ‘managing agent’ in this case is also an issue for the jury.”). 18 At the time of the events giving rise to this suit, Lane was the Director of Business Operations for 19 Aerotek’s San Jose Office, and Simmons was the Human Resources Manager for the Northwest 20 Region. It is clear from the record that both had considerable responsibilities. Whether either one 21 exercised sufficient authority to qualify as a managing agent for purposes of § 3294(b) “requires a 22 factual inquiry not suitable for summary judgment.” DesRosiers, 979 F. Supp. 2d at 1053. 23 Aerotek’s reliance on Gelfo and Kelly-Zurian is misplaced. In both of those cases, the 24 determination of the corporate employee’s authority occurred after a trial. See Gelfo v. Lockheed 25 Martin Corp., 140 Cal. App. 4th 34 (2006); Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397 26 (1994). In Gelfo, the trial court granted a defense motion for directed verdict on the ground that 27 Gelfo failed to present any evidence that a corporate managing agent was involved in rescinding 28 his job offer. The appellate court affirmed, holding that “where insufficient evidence supports a 13 Case 5:17-cv-06251-BLF Document 48 Filed 04/27/21 Page 14 of 14 1 verdict in the plaintiff’s favor, no factual issue remains for the jury to decide.” Gelfo, 140 Cal. 2 App. 4th at 63. In Kelly-Zurian, the appellate court affirmed the trial court’s denial of the 3 plaintiff’s motion for a new trial on punitive damages, because the trial evidence was clear that the 4 supervisor was not a managing agent. See Kelly-Zurian, 22 Cal. App. 4th at 421. The present 5 case is in an entirely different procedural posture, and nothing in the cited cases suggests that their 6 holdings may be extended to the summary judgment context. Finally, Aerotek argues that it is entitled to summary judgment because Moses “cannot 7 8 demonstrate with clear and convincing evidence that she suffered any acts of oppression, fraud, or 9 malice.” Mot. at 25, ECF 35. This argument fails in light of the record evidence that Lane 10 retaliated against Moses for reporting against Ossai. Aerotek’s motion for summary judgment on Moses’ claim for punitive damages is United States District Court Northern District of California 11 12 13 14 DENIED. IV. ORDER The motion for partial summary judgment is DENIED. 15 16 17 18 Dated: April 27, 2021 ______________________________________ BETH LABSON FREEMAN United States District Judge 19 20 21 22 23 24 25 26 27 28 14

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