Opposition To Defendants Motion For Summary Judgment

Opposition

Cal. Super. - 4th Dist.May 3, 2013

~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew H. Friedman, P.C., SBN 153166 afriedman @helmerfriedman.com Helmer Friedman, LLP ELECTRONICALLY FILED 8522 National Blvd., Suite 107 Superior Court of Califomia, Culver City, California 90232 Gaunty of Orange Tel. (310) 396-7714 - Fax (310) 396-9215 06/07/2016 at 11:07:00 A Clerk of the Superior Court i gw By Amy wan Arel, Deputy Clerk Attorneys For Plaintiff ¥xny RELY CECELIA CARTER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CECELIA CARTER, CASE No.: 30-2013-00647896-CU-WT-CJC ASSIGNED FOR ALL PURPOSES TO THE PLAINTIFF, HONORABLE FREDERICK P. AGUIRRE Vv. PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT'S FANNIE MAE; and DOES 1 through 50, MOTION FOR SUMMARY inclusive, JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY Defendants. ADJUDICATION [(1) Opposing Separate Statement of Undisputed Facts and Additional Disputed Material Facts; (2) Compendium of Evidence; (3) Objections to Evidence; (4) [Proposed] Order re: Objections to Evidence; and (5) Request For Judicial Notice filed concurrently herewith] DATE: June 21, 2016 TIME: 8:30 a.m. DEPT.: C23 Plaintiff Cecelia Carter (‘“Plaintiff” or “Ms. Carter”) hereby respectfully submits this Memorandum in Opposition to Defendant Fannie Mae’s Motion for Summary Judgment, or In the Alternative, Summary Adjudication (the “Motion”). PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. TABLE OF CONTENTS INTRODUCTION: cassie isonsvesimseon io smmnissssssan is sovssssiaaasisissssssssesvon is sis s ssesvis soins STATEMENT OF FALTE oronmasmsmmmonsmnsnssomssn ons ones s s ass sss uses ie sussssns A. Important Background Information - Illegal Kickbacks Were Rampant In Defendant’s Irvine Office ......cccccceveeecrcenccrsenccssencssnnessnsessansosassosaes B. Upon Commencement Of Her Employment, Ms. Carter Noticed And Began To Complain About Unlawful Conduct .........cceecceceeccccnncccsencssnsossansosens C. Haji Dayala Becomes Ms. Carter’s Supervisor and He Continues to Retaliate Against MS. Carter iuuscvsvasasssnsmmssssmssissmsmssrsmsissssvssivsssesas D. Ms. Carter Raises Concerns About Fannie Mae’s Submission to Congress of Inaccurate Data Re: Potential RESPA Violations and About Marketing of Properties to which it had No Clear Title..............c......... E. In January 2010, Ms. Carter Recorded A Meeting With The Consent Of Both Mr. Dayala And MS. ITVINE ......ccccveeiessenisssanesssasessnscssasscssasssssassssnsessanns F. Ms. Carter is Subjected to Overt Racial Discrimination & Harassment by Her New Supervisor, Mary Irvine........ccccceccceecccssncssnsessansosees G. Ms. Carter Complains About Illegal Kickbacks, Retaliation, And Harassment/Discrimination ..........ccieienicnniccnsisssisssssssancssssssssossssssassnes H. Fannie Mae Began A Sham Investigation Into Ms. Carter’s Complaints of Illegal Solicitation/Kickbacks and Racial Harassment/Discrimination ..........ccieienicnniccnsisssisssssssancssssssssossssssassnes I. Ms. Carter Continues To Voice Complaints During 2010 And Into 21 Liscunessamsmnsonsnasssnmsnnsssnnssnsassn s s sss ssss same seas sa R R SARAHB R SHOTS ERASERS SSA J. Shortly After Ms. Carter Complained about Illegal Activities and Expressed Her Concern That Defendant Would Not Act; Defendant Begins A Retaliatory Investigation Into Ms. Carter’s Conduct ...........cccceeeueee. K. Defendant Issued a Final Report Demonstrating That Fannie Mae’s Investigation Was a SHAM .......cccveieircnicnsaninssancsssancsssncssanscssasesssssessssssssssssssssssssans L. Just Days After Issuing the Report, Colton Began Investigating Ms. Carter For The Recording That She Made More Than A Year Earlier ......... M. On May 4, 2011, Ms. Carter is Wrongfully Fired For Something Defendant Knew About For More Than One Year and three montbhs............ N. No One Else Was Disciplined For the January 2010 Recording .........ccceeeeeeune 0. Irvine, Who Violated The Same Policy As Ms. Carter, Was Not Fired........... P. A Similarly Situated Individual Who Did Record A Conversation Without Consent Was Not Similarly Fired ........ccccceceveccnsenccnsenccssencsssnscssnsesens i PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Iv. VIL VIL VIII. IX. Q. The EDD Found That There Was No Direct And Proximate Causal Relationship Between The Alleged Misconduct And The Discharge.......... R. Armand Granillo Was Indicted And Convicted in Connection with His Involvement in An Illegal Kickback Scheme.........c..ccccvevuvcvrunccnincvrcnnes SUMMARY JUDGMENT IS IMPROPER IN CASES INVOLVING INIENT icmmanmnnnrnnnmnmsnarimmiinisarascmisissmsisesvissismmissiimsis SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE NUMEROUS DISPUTED MATERIAL FACTS .....cuuoiniiinsnnsnnsnnssessesnesassanes SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE IT IS BASED ALMOST ENTIRELY UPON INADMISSIBLE “EVIDENCE” ......cccceceesesueennnes SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE DEFENDANT CONCEALED TRIABLE ISSUES OF MATERIAL FACT .......uuuvenneneenenaennenns THE MOTION SHOULD BE DENIED BECAUSE DEFENDANT HASN'T SHOWN ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW. ............. A. Ms. Carter Can Easily Demonstrate A Prima Facie Case Of Wrongful Termination And Retaliation........c.ccovieeviinseicsnissncssnnsssissncssanssnssssssosssces B. Ms. Carter Can Easily Demonstrate That Defendant’s Purportedly Legitimate, Reason For Firing Her Is Pretext For Discrimination/Retaliation .cusscsusssasssssssssssssssassnssnsssssssssssnsssuosssssvssavassssons SUMMARY JUDGMENT SHOULD BE DENIED AS TO THE SECOND AND THIRD CLAIMS BECAUSE DEFENDANT DOESN’T ADDRESS THE ADVERSE ACTIONS TAKEN AGAINST MS. CARTER OTHER THAN HER FIRING .icssansssnsissiosiisssnsensisnsnsvsssionsesssisnsise 11 . 10 10 10 10 12 12 15 «20 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES American Airlines v. Superior Court, 114 Cal. App. 4th 881 (2003) ...cccuveeviiiriiiiiniiienieeenieens Bell v. Clackamas County, 341 F.3d 858 (9th Cir. 2003) .......cceeeiiiieeiiiiie eerie ee Carterv. Fannie Mag, 2014 WL 4212622 (2014) cuss susan ss sunssss sumusss swmsnanin sunssss ssxassn ss sassuss sssans 1, Colarossi v. Coty USA Inc., 97 Cal. App. 4th 1142 (2002) ....coviuiieriiiiiiiiiiieienieeeieeeie cec DeJung v. Superior Court, 169 Cal. App. 4th 533 (2008) ....cccccceerrriirriiieniienieee n ces sie Deschene v. Pinole Steel Co., 76 Cal. App. 4th 33 (1999) ...cccoiiiiiiiiiiiiieeeeeeee Duchon vi. Cajon Co.; 791 Fa2d 43 (6th Cit. 1986) cuss sss ss sunnssn sonansn.so suman sossssn is sumpsss swmssasin sunssss Farrell v. Planters LifeSavers Co., 206 F.3d 271 (3d Cir. 2000) ......ccovvireeerrieeeeiiieeeeeiieee ee Gonzdlez v. Rural Opportunities, Inc., 626 F.3d 654 (1st Cir.2010).....ccccvveveiiiiieiiiiiieeeeiieeeene Green v. Laibco, LLC, 192 Cal. App. 4th 441 (2011) ceeoeiiiiiiiiiieeeeeeeeeeee eee Guz vi. Bechtel Nat. Ing: ; 24 Cals Ath 3177 (ZOD) so sumsnsn sunnnsn.so soma sunsnss swnsssn ss sasasss ssnanas os sunssss aowsssn ios Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803 (1999) .....ccociiiiiiiiiiiiiiieeeieeee, Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997) ....iiiiiciieieccinececcceveee s n Kansas Comm’n on Civil Rights, 45 FEP 1476, 1985 WL 17574 (D.Kan. 1985).........cccccvveennn. Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686 (2008)......cccceevvvernienierieeneerieeneeen McCoy v. Pac. Mar. Ass'n, 216 Cal. App. 4th 283 (2013)...ueeeiiiiiiiieeiieeeeeee te McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510 (2013) .ccovveiriiiiiiiiiieeeieene, Metters v. Ralphs Grocery Co., 161 Cal. App. 4th 696 (2008) .....c.eeeeriiiiriiiiiiiieiiieeeieeeeieeee Miller v. Department of Corrections, 36 Cal. 4th 446 (2005) .....ccccuveeiieiiieeeeiieee eerie ees Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir.1997) ....oviiieiiiieeeee cetera eee Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) ....c.eeevvivemniienrieennieenne 12, Moss v. Southern Ry. Co., 41 FEP 553, 1986 WL 10510 (N.D.Ga.1986)......cccccceeevvvreeeecireeennns Nazir v. United Airlines, Inc., 178 Cal. App.4™ 243 (2009) snus ss assin smmansn ss swans swan ss zaman 1, 10, Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal. App. 4th 1021 (2002) w.eeeueeeiiieiieeiie eee e sees sree sane enns Porter v. Cal. Dep't of Corr., 419 F.3d 885 (9™ CIE. 20035) covers 111 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) ......ccccuetiiiiiiiiieeiie eects eee eee eee 16 Reeves v. Safeway Stores, Inc., 121 Cal. App. 4th 95 (2004) .....oovviiiiiiiiiiiiiieeeeeeeee e 19 Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) ....coeeeriiiiieeiiiiee eerie eee evee ee evae eee 15 Rio All-Suites Hotel and Casino, 36 NLRB NO. 190 (2015) ...ccccoivrieiieieiieiiiieeeee cece n 18 Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) ....c.uoviiiiiiiieeee eee 13 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) ....cuiiiiiieeeeieee eee cere evee e e a 15 Staub v. Proctor Hosp., 562 U.S. 411 (2011) c.ueuiiieiiiiie eects eects eer evae ae eaae aes 19 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994) ....ooooveeiieeeeeeeeeceee ee 12 Village of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252 (1977) eceeeeeueeeeeirieaene 17 Whole Foods Market, Inc., 363 NLRB NO. 87 (2015) ..vvvviiiiiieiiiiiieeeee cece eee 18 Wysinger v. Auto. Club of S. California, 157 Cal. App. 4th 413 (2007) ccceveevvivemniieiiieenieeeenn 14 STATUTES REAL ESTATE SETTLEMENT PROCEDURES ACT (“RESPA”), 12 USC §§ 2601 ........ovvvveeeeeeecnnrnnee. 2 TREATISES Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2016), {10:268:20 15 iv PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION ~N O N n e B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant’s Motion should be denied for six separate and independent reasons. First, the Motion should be denied because there are triable issues of material fact (including disputed fact nos. 16, 20-21, 25-26, 29-30, 36, 55-57, 63-64, 68-69, 72-73, 79, 98-100, 122-124, 130-131, 135-136, 139-140, 146, 165-167, 173, 178-179, 182-183, 189). CCP §437c(c). Second, the Motion should be denied because it is not based on admissible evidence. CCP § 437c(d). See Evidentiary Objections. Indeed, although the Motion is based on statements and writings purportedly made/authored by five of Defendant’s employees - Natasha Colton, Sarah Brancato, Haji Dayala, Sandra Ozuna, and Mary Irvine - Defendant does not support the Motion with testimony from any of them. Rather, Defendant impermissibly uses the hearsay testimony of Leslie Arrington, who was not a party to those purported statements or writings, to testify to what those people purportedly said/heard/wrote. Worse, Defendant also tries to use Arrington’s testimony to establish, as undisputed material facts, statements that she attributes to Ms. Carter. However, Arrington not only did not hear such statements but Ms. Carter denies making them. Thus, Arrington’s testimony is also inadmissible for lack of personal knowledge. CCP § 437¢(d). Third, the Motion should be denied because, in violation of Nazir v. United Airlines, Inc., it is replete not just with evidence taken out of context and/or wholly fabricated but, worse, key evidence is omitted in an effort to hide triable issues of material fact. Omission of evidence is something for which the Court of Appeal has already criticized Defendant in this case. Fourth, the Motion should be denied because Defendant has failed to meet its burden of demonstrating that it is entitled to a judgment as a matter of law. CCP § 437c(c). Fifth, the Motion should be denied because Ms. Carter has submitted ample evidence that Defendant discriminated against her on the basis of her race and retaliated against her for complaining about race discrimination and for blowing the whistle on illegal activities (i.e., she complained about many violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 ! See Carter v. Fannie Mae, 2014 WL 4212622, at *2 (2014)(affirming this Court’s denial of Fannie Mae’s motion to compel arbitration and holding: “While the revocation of the offer is buried in a passing reference in Fannie Mae's briefing, it is conspicuously missing in Fannie Mae's statement of facts at the point where one would expect to find it . . . Such omissions suggest that if the court had all the facts, an otherwise viable-looking appeal might be frivolous.”)(Emphasis added). 1 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USC §§ 2601 et. seq. including kickbacks being taken by employees in her office such as by Armando Granillo). Ms. Carter’s evidence shows that Defendant was so eager to stop her complaints that it conducted a “whitewashed” investigation, concluded that no wrongdoing had occurred, and then fired her for something (recording a conversation with her supervisors with their consent) that Defendant had known about for more than a year and three months. The fact that Defendant concluded that no kickbacks occurred proves pretext given that the evidence was so overwhelming that Mr. Granillo was convicted and sentenced to prison for taking kickbacks. Sixth, as summary adjudication must completely dispose of a cause of action to which it is directed, Issues 2, 3, 4 and 5 must also be denied because Defendant only addresses one (her firing) of the several adverse employment actions over which Ms. Carter is suing. II. STATEMENT OF FACTS A. IMPORTANT BACKGROUND INFORMATION - ILLEGAL KICKBACKS WERE RAMPANT IN DEFENDANT’S IRVINE OFFICE In order to understand Cecelia Carter’s case, it is important to view her employment through the following prism - after Ms. Carter was fired, Granillo, a Fannie Mae employee in Ms. Carter’s office, was convicted and sentenced to prison for soliciting kickbacks. See Additional Material Facts (“AMF”) 1-4. Granillo admitted that other Fannie Mae employees in their office were also taking kickbacks. AMF 5. The taking of kickbacks by Granillo and others is precisely about what Ms. Carter had repeatedly “blown the whistle.” AMF 6. Not wanting to acknowledge the problem, Defendant conducted a “whitewashed” investigation, concluded that no kickbacks had taken place, and then fired Ms. Carter in an effort to silence her. AMF 7. B. UPON COMMENCEMENT OF HER EMPLOYMENT, MS. CARTER NOTICED AND BEGAN To COMPLAIN ABOUT UNLAWFUL CONDUCT Ms. Carter, an African-American female, began employment with Defendant in 2008. AMF 8. In or around late 2008, Ms. Carter reported to Defendant that her supervisor, Ozuna, and others were accepting illegal gifts in violation of RESPA. AMF 13-17, 19. Defendant ignored Ms. Carter’s complaints. AMF 17. Ozuna learned about Ms. Carter’s complaints and began to retaliate against her by (1) publicly branding Ms. Carter as a “troublemaker” and warning people to not speak with her; (2) giving Ms. Carter a negative performance review which disqualified her from receiving a raise; and (3) reassigning territories so as to adversely affect Ms. Carter’s 2 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sales numbers and hurt her compensation. AMF 20-22, 33. Ms. Carter reported Ozuna’s retaliatory conduct to Defendant; yet, no action was taken. AMF 24-26. In or about May 2009, Ms. Carter learned that Ozuna had received illegal kickbacks. AMF 27. Because Defendant had not protected her from Ozuna’s retaliation, Ms. Carter convinced a colleague, who had first-hand knowledge of the kickbacks, to report Ozuna to Defendant. AMF 28. Shortly thereafter, Colton, an investigator from Defendant’s Ethics Division, called Ms. Carter and said that she was investigating an ethics complaint against Ozuna. AMF 29. Ms. Carter told Colton about Ozuna’s receipt of illegal gifts and kickbacks and she reported Ozuna’s retaliation. AMF 30-32. In June 2009, Ozuna was fired for ethics violations. AMF 34. However, Defendant did not act to address Ms. Carter’s complaints of retaliation. AMF 35-36. C. HAJI DAYALA BECOMES MS. CARTER’S SUPERVISOR AND HE CONTINUES TO RETALIATE AGAINST MS. CARTER In or about May 2009, Dayala replaced Ozuna as Ms. Carter’s supervisor. AMF 37. Dayala, who had worked closely with and was friends with Ozuna prior to becoming Ms. Carter’s supervisor, continued the pattern of retaliation against Ms. Carter. AMF 38. Indeed, shortly after becoming Ms. Carter’s supervisor and before he could have formed any independent impression of her, Dayala called Ms. Carter into his office and began to unfairly criticize her in ways that made it apparent he was basing his assessment on things Ozuna had told him. AMF 39. When Ms. Carter returned to her cubicle, she answered her ringing phone but before she spoke to identify herself, Dayala, who had mistakenly dialed her instead of Ozuna, stated, “I just talked to Cecelia and she is an idiot.” AMF 40. Although Ms. Carter reported Dayala’s retaliatory conduct to Defendant, Defendant did not take any action. AMF 41-43. D. MS. CARTER RAISES CONCERNS ABOUT FANNIE MAE’S SUBMISSION TO CONGRESS OF INACCURATE DATA RE: POTENTIAL RESPA VIOLATIONS AND ABOUT MARKETING OF PROPERTIES TO WHICH IT HAD NO CLEAR TITLE After Dayala became Ms. Carter’s supervisor, Defendant was asked to respond to a Congressional inquiry regarding allegations that Fannie Mae title vendors selected services for buyers in violation of RESPA. AMF 44-50. Dayala was responsible for compiling responses from the Irvine Office employees. Id. Although the majority of the employees confirmed that the unlawful practice was taking place, Dayala excluded from his compilation the responses that 3 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 indicated that Fannie Mae title vendors (which were acting at the direction of Fannie Mae) were selecting services for buyers in violation of RESPA. Id. This fraudulent compilation was submitted to Congress. Id. In Summer 2009, Ms. Carter complained to Fannie Mae’s Vice President of REO Regional Offices (Jim Tiegen), Dayala, and Ethics that the compilation was inaccurate. AMF 24, 51-54. Neither Tiegen, Dayala, nor Ethics responded. Id. Also in June 2009, and throughout the remainder of her employment, Ms. Carter continued to complain that Defendant was illegally marketing properties to which it had no clear title. AMF 55-56. Defendant never addressed Ms. Carter’s concerns; instead, it retaliated against her. AMF 57-60. E. IN JANUARY 2010, MS. CARTER RECORDED A MEETING WITH THE CONSENT OF BOTH MR. DAYALA AND MS. IRVINE In January 2010, Dayala gave Ms. Carter a negative performance review for the 2009 calendar year, in retaliation for her prior complaints of unlawful conduct. AMF 58-59. Shortly thereafter, in January 2010, Ms. Carter and Dayala met in his office to discuss her review. AMF 61. Ms. Carter requested that Dayala leave his office door open during the meeting and she asked for permission to audio record the meeting. AMF 62-64. Although annoyed, Dayala agreed to both of Ms. Carter’s requests. Id. Ms. Carter then opened a “voice memo” feature on her iPod and used it to make a recording of the meeting. AMF 65. Ms. Carter placed her iPod on the small table around which she and Mr. Dayala sat. AMF 67-68. Throughout the meeting, the iPod displayed the “voice memo” feature clearly showing that Ms. Carter was recording the meeting. AMF 69. During the meeting, Dayala asked Irvine to join them. AMF 70. When Irvine joined them, she brought in a folder, placed it on the table next to the iPod, and clearly looked at the iPod displaying the “voice memo” feature. AMF 72-76. Irvine was aware that Ms. Carter was recording the meeting and did not object. /d. Indeed, shortly thereafter, in responding to a complaint about her, Irvine told Brancato (an H.R. Rep.) that Ms. Carter had taped the meeting. AMF 82, 84. Irvine also later admitted to an investigator, Colton, that she was aware Ms. Carter was recording the conversation. /d. By not objecting, Irvine consented to the taping. Id. Neither Dayala, Irvine, nor Brancato took any disciplinary action against Ms. Carter for recording the meeting. AMF 77-80, 83. According to Defendant’s Technology Use Policy (the policy Defendant claims Ms. Carter violated), each of them had a duty to immediately report Ms. Carter 4 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 if they suspected that she had violated the Policy. Id. However, further evidencing the fact that they did not believe she did anything improper, neither Dayala, Irvine, nor Brancato reported Ms. Carter. Id. And why would they? Carter had the consent of both Dayala and Irvine. AMF 62-76. F. MS. CARTER IS SUBJECTED TO OVERT RACIAL DISCRIMINATION & HARASSMENT BY HER NEW SUPERVISOR, MARY IRVINE In February 2010, Irvine became Ms. Carter’s supervisor. AMF 85. While serving as Ms. Carter’s supervisor, Irvine, a Caucasian female, frequently exhibited animus toward and negative stereotyped views regarding African-Americans. AMF 86. For example, Irvine complained that Fannie Mae gave preferential treatment to African-Americans and referred to minority real estate agents as having an “entitlement attitude.” AMF 87-91. Another example is what Irvine said to Ms. Carter regarding a photo that Ms. Carter kept on her desk of her daughter. AMF 95-99. When Irvine saw the picture, she asked Ms. Carter if the baby was her grand-daughter. Id. Ms. Carter replied, “No, I'm too young to have a granddaughter.” Id. In response, Irvine said “You people have babies at a young age.” Id. (Emp. added). Consistent with her animosity toward African- Americans, Irvine began to harass and discriminate against Ms. Carter because of her race by, among other things: (1) isolating Ms. Carter on one side of the office away from everyone else; (2) removing Ms. Carter from a project and replacing her with a less-qualified non-African-American colleague; (3) refusing to nominate Ms. Carter to be a Subject Matter Expert; two less-qualified Caucasian males were selected; and (4) favoring Caucasian employees over Ms. Carter in other ways (detailed in Ms. Carter’s Opposing Separate Statement) which resulted in decreased compensation for Ms. Carter. AMF 100-114. G. MS. CARTER COMPLAINS ABOUT ILLEGAL KICKBACKS, RETALIATION, AND RACIAL HARASSMENT/DISCRIMINATION In early 2010, Ms. Carter suspected that Irvine was receiving kickbacks, she questioned Irvine, and Irvine grew angry. AMF 115-120. Irvine subjected Ms. Carter to the silent treatment. Id. On May 14, 2010, in retaliation for Ms. Carter’s inquiries into her illegal conduct and because of Ms. Carter’s race, Irvine gave Ms. Carter a Written Warning which, among other untrue allegations, falsely accused Ms. Carter of missing work on dates that she was present; this resulted in a loss in compensation. AMF 121-123. Irvine did not discipline non-African- 5 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Americans for engaging in similar conduct. Id. On May 19, 2010, Ms. Carter emailed Brancato, an H.R. Rep., and reported that Irvine was retaliating against her and subjecting her to discrimination and harassment. AMF 124-130. In her email, Ms. Carter specifically complained about errors in the Warning including false allegations of absences from work, stated that she had recorded - i.e., “voice memod” - her 2009 Performance Review meeting, and offered to share the recording. Id. During a subsequent phone call, Ms. Carter expressed concerns to Brancato that Irvine, Granillo, Tan Nguyen, and Don Lucio were accepting illegal kickbacks, amplified upon her belief that Irvine and others had retaliated against her for reporting illegal conduct, told Brancato that the discrimination she was enduring was based on race and she gave specific examples. Id. In response, Brancato declared “You are the problem.” AMF 131. In other words, before any investigation had commenced (much less been concluded), Defendant concluded that Ms. Carter had not been subjected to race discrimination or retaliation. AMF 132. During this phone call, Ms. Carter also reiterated that she had a recording from the meeting with Dayala and Irvine which would help prove her claims. AMF 133-134. Brancato said that she did not want a copy of the recording. /d. Ms. Carter presented Irvine and Brancato with documentation proving she was not absent on the dates identified by Irvine. AMF 135-136. Brancato said that she would look into it. AMF 137. Ms. Carter was also informed that Ethics would investigate her complaints. AMF 138. Pursuant to Defendant’s policy, the investigation was to be completed within 90 days. Id. H. FANNIE MAE BEGAN A SHAM INVESTIGATION INTO MS. CARTER’S COMPLAINTS OF ILLEGAL SOLICITATION/KICKBACKS AND RACIAL HARASSMENT/DISCRIMINATION In the weeks that followed her complaints, Ms. Carter did not hear from Ethics. AMF 139. So, Ms. Carter began contacting Ethics to determine whether an investigation into her allegations had begun. Id. Eventually, Colton contacted Ms. Carter. AMF 140. Ms. Carter reiterated to Colton her complaints not only about illegal kickbacks being taken by Irvine, Granillo, Nyugen, and Lucio but also about fraudulent information being submitted to Congress and the illegal marketing of REO properties. AMF 143-148. Ms. Carter also told Colton that she was being discriminated against by Irvine on the basis of her race and that she suffered retaliation by 6 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ozuna, Dayala, and Irvine. Id. Colton’s responses revealed that she was biased against Ms. Carter and had already decided that her complaints were meritless. AMF 149-155. On July 2, 2010, Defendant considered firing Ms. Carter. AMF 156. Instead, Ms. Carter is informed that even though Irvine had falsely accused of her of being absent from work on dates when she was actually at work, the Warning would stand. AMF 157-159. This Warning resulted in decreased compensation for Irvine. Id. Irvine did not issue Warnings to non-African-American who had actually engaged in conduct similar to what Ms. Carter was falsely accused. Id. I. MS. CARTER CONTINUES TO VOICE COMPLAINTS DURING 2010 AND INTO 2011 In subsequent communications with Colton occurring throughout 2010 and into early 2011, Ms. Carter reiterated and expanded upon her complaints and provided additional details and documentation substantiating her claims. AMF 160. Unbeknownst to Carter, several other people also complained to Defendant that Irvine and Granillo had engaged in illegal conduct. AMF 161. J. SHORTLY AFTER MS. CARTER COMPLAINED ABOUT ILLEGAL ACTIVITIES AND EXPRESSED HER CONCERN THAT DEFENDANT WOULD NOT ACT; DEFENDANT BEGINS A RETALIATORY INVESTIGATION INTO MS. CARTER’S CONDUCT On November 9, 2010, Ms. Carter met with Colton and reiterated and expanded upon all of her prior complaints of illegal conduct. AMF 163-164. Ms. Carter expressed her concern that Defendant was not going to act on her complaints, and lamented that she would have been better staying quiet and just going along with the illegal conduct. Id. The next day, Ms. Carter reiterated these concerns in an email to Ms. Colton. AMF 165. On December 7, 2010 - less than one month after Ms. Carter’s renewed complaints - Defendant launched a retaliatory, secret, clandestine investigation into whether, 11 months earlier, Ms. Carter had recorded the meeting with Dayala and Irvine without consent. AMF 168. This investigation was begun even neither Dayala, Irvine nor Brancato had taken action against Ms. Carter much less reported her conduct as required under Defendant’s policies if they suspected her of engaging in wrongdoing. Id. K. DEFENDANT ISSUED A FINAL REPORT DEMONSTRATING THAT FANNIE MAE’S INVESTIGATION WAS A SHAM On February 11, 2011, Colton issued a Final Report regarding Ms. Carter’s complaints. AMF 169. Multiple aspects of the Report confirm that Defendant conducted a “whitewashed” investigation. The Report revealed that Colton didn’t investigate Ms. Carter’s allegations of race 7 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discrimination. AMF 170. Rather, Colton lied and said that Ms. Carter had complained about age discrimination. AMF 171. The Report also revealed that Colton did not investigate any of Ms. Carter’s allegations of retaliation against Ozuna or Dayala. AMF 172. Nor did Colton investigate Ms. Carter’s complaints about the submission of false information to Congress or the illegal marketing of property without title. AMF 173. Moreover, while the Report stated that Defendant “found no evidence indicating that Ms. Irvine . . . improperly solicited and/or accepted ‘kickbacks’ from real estate agents in exchange for ensuring that the agents were assigned Fannie Mae REO properties to sell,” the Report did not address Ms. Carter’s allegations that Granillo, Lucio and Ozuna took kickbacks. AMF 174-175. No one was ever disciplined as a result of Ms. Carter’s complaints of race discrimination/harassment, retaliation, and illegal activity. AMF 176. Moreover, Colton did not interview numerous witnesses identified by Ms. Carter. AMF 177-179. Finally, Defendant wrongly blamed Ms. Carter for delaying the investigation by falsely accusing her of not timely responding to Colton’s requests for information; however, Ms. Carter always timely responded. AMF 175. In violation of Defendant’s policy, instead of 90 days, the investigation lasted nine (9) months. AMF 138, 141, 167. L. JUST DAYS AFTER ISSUING THE REPORT, COLTON BEGAN INVESTIGATING MS. CARTER FOR THE RECORDING THAT SHE MADE MORE THAN A YEAR EARLIER On February 18, 2011, just one week after Colton found no merit to Ms. Carter’s RESPA complaints, Colton interviewed Carter about the recording Ms. Carter made more than one year earlier during the January 2010 meeting with Dayala and Irvine. AMF 180. Carter told Colton that both Dayala and Irvine had consented to the recording. AMF 181-183. Colton interviewed Ms. Irvine; Irvine admitted that she was aware that Ms. Carter was recording the meeting. AMF 185. Colton also learned that Irvine had admitted to Brancato that she (Irvine) was aware Ms. Carter was recording the meeting. AMF 185. Colton did not interview Dayala, AMF 179, most likely because she knew Dayala would confirm he had consented to the recording. AMF 184. On April 29, 2011, despite the overwhelmingly conclusive evidence that Ms. Carter had the full consent of Dayala, and Irvine, Colton claimed that Ms. Carter made the recording without Irvine's knowledge or consent. AMF 186-188. Proving the retaliatory nature of her Report, Colton lied to Arrington and said that Ms. Carter had “acknowledged that she had not obtained 8 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ms. Irvine's consent for the recording.” Id. Based on Colton’s determination and her own review of the entire record, Arrington - the “cat’s paw” of Colton - decided to fire Ms. Carter. Id. M. ON MAY 4, 2011, MS. CARTER IS WRONGFULLY FIRED FOR SOMETHING DEFENDANT KNEW ABOUT FOR MORE THAN ONE YEAR AND THREE MONTHS On May 4, 2011, Defendant fired Ms. Carter because - more than one year and three months earlier - she purportedly recorded her January 2010 meeting with Dayala and Irvine without consent. AMF 189. Proving the retaliatory nature of the firing, Defendant was well aware of Ms. Carter’s recording for more than a year and three months and took no action against her. AMF 190. In fact, since January 2010, Defendant knew, via Dayala and Irvine (and since May 2010 via Brancato) that Ms. Carter had recorded the meeting. AMF 191. Yet, although Dayala and Irvine were Ms. Carter’s supervisors and Brancato was in H.R. and any of them could have disciplined Ms. Carter for the recording if they believed it violated Defendant’s policies, none did so. AMF 77-80, 83, 193-194. Moreover, according to Defendant’s policy, if they had suspected that Ms. Carter’s recording had violated the policy for which she was later fired, they had a duty to immediately report it. AMF 193. However, neither Dayala, Irvine, nor Brancato immediately reported that Ms. Carter violated the policy. AMF 194. It was only after Ms. Carter complained to Colton about race discrimination/RESPA/illegal retaliation and said that she didn’t believe Defendant would act on her complaints that Defendant suddenly became “concerned” that the recording might have violated policy. AMF 195. N. NO ONE ELSE WAS DISCIPLINED FOR THE JANUARY 2010 RECORDING Though he participated in the January 2010 meeting, and gave permission to record the meeting, Dayala was never even interviewed as part of the investigation into Ms. Carter’s recording. AMF 196-197. Nor was he disciplined for his role in the recording of the meeting. Id. 0. IRVINE, WHO VIOLATED THE SAME POLICY AS MS. CARTER, WAS NOT FIRED Although Colton concluded that Irvine violated the same policy - Technology Use - as Ms. Carter allegedly violated, Irvine was not fired; she merely received a warning. AMF 198-199. P. A SIMILARLY SITUATED INDIVIDUAL WHO DID RECORD A CONVERSATION WITHOUT CONSENT WAS NOT SIMILARLY FIRED Defendant investigated another employee for violating its Technology Use Policy by taping a conversation without consent but did not fire that individual even though Defendant determined 9 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the employee had taped a conversation without consent. AMF 200. Q. THE EDD FOUND THAT THERE WAS NO DIRECT AND PROXIMATE CAUSAL RELATIONSHIP BETWEEN THE ALLEGED MISCONDUCT AND THE DISCHARGE Defendant opposed Ms. Carter’s claim for unemployment benefits on the grounds that she tape recorded a conversation without consent. AMF 201-203. The EDD ruled against Defendant finding it suspicious that Defendant waited more than one year to fire Ms. Carter and only then after it concluded its investigation into her complaints - the EDD found “there was no direct and proximate causal relationship between the alleged misconduct and the discharge.” Id. R. ARMANDO GRANILLO WAS INDICTED AND CONVICTED IN CONNECTION WITH His INVOLVEMENT IN AN ILLEGAL KICKBACK SCHEME After Defendant fired Ms. Carter, Granillo was convicted of three counts of “honest services” wire fraud for allegedly soliciting kickbacks. AMF 1-6. This is precisely about what Ms. Carter had complained about to Colton. Id. Granillo admitted that other Fannie Mae employees in his office had also taken illegal kickbacks. Id. Granillo was sentenced to 15 months in prison. Id. III. SUMMARY JUDGMENT IS IMPROPER IN CASES INVOLVING INTENT Summary judgment is an inappropriate way to adjudicate employment cases where issues of intent and motive predominate: “Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be.” Nazir, 178 Cal. App. 4th at 286. Indeed, “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” McCoy v. Pac. Mar. Ass'n, 216 Cal. App. 4th 283, 299 (2013). IV. SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE NUMEROUS DISPUTED MATERIAL FACTS The Motion should be denied because there are numerous disputed material facts. CCP §437c(c). See Opposing Separate Statement. V. SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE IT IS BASED ALMOST ENTIRELY UPON INADMISSIBLE “EVIDENCE” The Motion should be denied because it is based upon inadmissible “evidence” in violation of CCP § 437c(d). See Evidentiary Objections. \\ \\ \\ \\ 10 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE DEFENDANT CONCEALED TRIABLE ISSUES OF MATERIAL FACT In Nazir, in reversing summary judgment in a race discrimination/retaliation case, the Court of Appeal chastised the defendant for painting a “misleading picture” of the case by citing evidence out of context and omitting other evidence in order to “hide” triable issues of material fact.> As in Nazir, Defendant’s Motion should be denied because its papers are not just replete with prevaricated “evidence” but, equally egregious, the Motion omits key evidence all in an effort to hide triable issues of material fact. Due to space limitations, three examples suffice. First, in Material Fact Nos. 30, 73, 140, and 183, Defendant falsely represents to the Court that “[a]t deposition, Plaintiff asserted the Fifth Amendment and refused to respond to the question: ‘While you were employed at Fannie Mae, did you break any laws?’ While counsel for Ms. Carter attempted to object to the question and assert the Fifth Amendment (because counsel wanted to consult with Ms. Carter as any responsible counsel would do before allowing their client to answer), Ms. Carter did not refuse to answer the question. Rather, she answered it and she denied breaking the law. And, the transcript proves it (Defendant’s attempt to prejudice the Court against Ms. Carter by intentionally misstating the record should not be condoned): Q. All right. Now, while you were employed at Fannie Mae did you break any laws? A. No. MR. FRIEDMAN: Objection. Vague and ambiguous, Fifth Amendment, privacy, instruct not to answer. Carter Depo., 164:24-165:4 (Emphasis added). AMF 204. Second, in the Motion, with respect to the recording which is a pivotal issue here, Defendant falsely represents to the Court that “Plaintiff does not deny that the recording was illegal.” See Motion, 16:6 (Emphasis in original). This representation is also categorically false. AMF 81. Third, in both the Motion and in Material Fact Nos. 55, 56, 98, 99, 122, 123, 165, and 166, 2 Nazir v. United Airlines, Inc., 178 Cal. App.4™ 243, 253 (2009)(“[N]either the inappropriateness of defendants’ papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced Superior Court judge has ‘intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered’ in connection with summary judgment motions, at the very top of which are motions “that attempt to ‘hide’ triable issues of material fact.” (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law. 34, 37, boldface omitted.) The article admonishes that a motion ‘should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact.””). 11 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant falsely represents to the Court that that “The record is clear that Plaintiff never complained to Fannie Mae about race discrimination.” See Motion, 18:15-16. This representation is also categorically false. AMF 205. Indeed, the record is full of evidence showing that Ms. Carter repeatedly complained to Defendant about race discrimination. See AMF 124-126, 129- 130, 147, 162-65, 171 and 205. Defendant’s fabrication of “evidence” and its omission of key evidence is particularly egregious given the Court of Appeal’s earlier criticism of Defendant in this case for doing just that.* Defendant's mendacity and omissions warrant denial of the Motion. VII. THE MOTION SHOULD BE DENIED BECAUSE DEFENDANT HAS NOT SHOWN ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW Defendant offers only two arguments as to why the Motion should be granted. First, Defendant argues that Ms. Carter is unable to establish a prima facie case of either wrongful termination (first cause of action) - see Motion, p. 16:15-18:1 - or retaliation (third cause of action) - see Motion, p. 18:3-8. Second, Defendant argues that Ms. Carter is unable to show that Defendant’s purported legitimate, nondiscriminatory/nonretaliatory reason for firing her is pretext for discrimination/retaliation (second and third causes of action) - see Motion, p. 9:17- 16:14. As explained below, each of these arguments is meritless. A. MS. CARTER CAN EASILY DEMONSTRATE A PRIMA FACIE CASE OF WRONGFUL TERMINATION AND RETALIATION In order to establish a prima facie case of wrongful termination or retaliation, a plaintiff must demonstrate: (1) she engaged in protected activity; (2) she suffered an adverse action; and (3) there was a causal link or a nexus between the protected activity and the adverse action. 4 As to the first factor, Defendant does not challenge whether Ms. Carter engaged in protected activity with respect to her wrongful termination claim (she did; she complained about RESPA violations, race discrimination, and other unlawful conduct).’ Rather, Defendant merely claims that Ms. Carter can’t establish the first factor as to her FEHA retaliation claim arguing that she Carter v. Fannie Mae, 2014 WL 4212622, at *2 (2014)(“‘While the revocation of the offer is buried in a passing reference in Fannie Mae's briefing, it is conspicuously missing in Fannie Mae's statement of facts at the point where one would expect to find it . . . such omissions nevertheless are hardly confidence inspiring. Such omissions suggest that if the court had all the facts, an otherwise viable- looking appeal might be frivolous.””)(Emphasis added). Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1253 (1994); Morgan v. Regents of Univ. of Cal., 88 al. App. 4th 52, 69 (2000). See AMF 6, 13-19, 24-25, 31-32, 41-52, 54, 56, 124-126, 129-130, 147, 162-65, 171 and 205. 12 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 purportedly “never complained to Fannie Mae about race discrimination.” See Motion, 18:13-24. However, Ms. Carter did, in fact, complain (repeatedly) to Fannie Mae about race discrimination. AMF 124-126, 129-130, 147, 162-65, 171 and 205. As to the second factor, Defendant does not challenge whether Ms. Carter can show that she suffered an adverse action. ® As to the third factor, Defendant challenges, for both Ms. Carter’s wrongful termination and retaliation claims, whether she can demonstrate a nexus between her protected activity and her firing. See Motion, 16:15-18:1, 18:25-19:8. Ms. Carter can easily demonstrate such a causal link: First, despite Defendant’s characteristic efforts to miscast the timing of material events, Ms. Carter can easily demonstrate a causal link via temporal proximity.” Indeed, less than one month after Ms. Carter met with Colton on November 9, 2010, complained about illegal conduct and expressed her concern that Defendant wasn’t going to act on her complaints, Colton launched (on December 7, 2010) a retaliatory investigation of Ms. Carter that led to her firing. AMF 168. This close temporal proximity is more sufficient to establish a causal link. Second, even if the Court were to accept Defendant’s incomplete version of the timing (i.e., its myopic focus on Ms. Carter’s March 19, 2010 complaint and her May 4, 2011 firing to the exclusion of everything that happened in between - see Motion, 13:25-28), Ms. Carter can still establish causation via temporal proximity as multiple cases have found a causal connection where the adverse employment action occurs within a year or so of the protected activity.® Moreover, multiple other cases hold that a prolonged period of time between the protected activity and the adverse action can demonstrate a causal connection where there is a retaliatory explanation for the delay between the plaintiff's protected activities and the adverse action.’ ° Ms. Carter suffered multiple adverse actions. See AMF 21, 33, 58-60, 103-114, 121-122, 157, 186, 189. Morgan v. Regents of Univ.Cal., 88 Cal. App. 4th 52, 69 (2000)(causal link may be established “from circumstantial evidence, such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.”); Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir. 2003) (“[CJausation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity”). See, e.g., Moss v. Southern Ry. Co., 1986 WL 10510 (N.D.Ga.1986) (one-year time span between protected activity and retaliation did not defeat plaintiff's claim); Ross v. Kansas Comm’n on Civil Rights, 45 FEP 1476, 1985 WL 17574 (D.Kan. 1985) (same); Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) (plaintiff's verdict affirmed, despite fourteen-month time span between protected activity and retaliation). ? See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (“It is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie 13 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the retaliatory explanation for the delay is simple - Defendant was investigating Ms. Carter’s complaints of illegal conduct from May 2010 through February 11, 2011. AMF 138, 167. Defendant could hardly fire Ms. Carter during the midst of its investigation. Thus, the timing sequence between the end of its investigation into her complaints on February 11, 2011 and its decision to fire her on May 4, 2011 (less than three months later) also shows causation. Third, even if Defendant’s argument is accepted that there is no close temporal proximity between Ms. Carter’s initial complaint and her firing, causation can be established by the pattern of conduct consistent with a retaliatory intent to which Ms. Carter was subjected from the time of her initial complaint continuing up to and including her firing: 10 ® 5/19/10 - Carter complains about race discrimination, RESPA violations & retaliation e 5/20/10 - Defendant commences a bogus investigation into Carter’s complaints eo 7/1/10 - Defendant discusses whether it should fire Carter eo (7/6/10 - Defendant retaliates against Carter by affirming a false Written Warning e® 11/9/10 - Carter again complains about race discrimination, RESPA, and retaliation and questions whether Defendant is going to take any action in response e 12/7/10 - Defendant commences a retaliatory investigation of Carter’s conduct e (1/11 - In retaliation for her complaints, Defendant does not give Carter a raise eo 2/11/11 - Defendant ends its investigation into Carter’s complaints - finds no wrongdoing eo 2/18/11 - Defendant informs Carter that it is investigating her eo 4/29/11 - Defendant ends its investigation of Carter - finds she engaged in wrongdoing ® 5/4/11 - Defendant fires Carter AMF 124-128, 138, 156-158, 162-163, 168, 169, 180, 186, 189, and 205. case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.”)(Emphasis added); Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 895-896 (9" Cir. 2005) (“[A] specified time period cannot be a mechanically applied criterion. A rule that any period over a certain time is per se too long (or, conversely, a rule that any period under a certain time is per se short enough) would be unrealistically simplistic.”; there was a retaliatory explanation for the delay between plaintiff’s alleged protected activities and the claimed adverse actions, because the alleged retaliator “was not in a position to retaliate until after he became the Personnel Assignment Sergeant” and plaintiff offered other evidence to support the inference of a retaliatory motive) (citations and internal quotation marks omitted). + Wysinger v. Auto. Club of S. California, 157 Cal. App. 4th 413, 421 (2007)(“A long period between an employer's adverse employment action and the employee's earlier protected activity may lead to the inference that the two events are not causally connected. But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.”)(Emphasis added); Green v. Laibco, LLC, 192 Cal. App. 4th 441, 456 (2011)(“The evidence-which we view in the light most favorable to plaintiff-showed that various sorts of retaliatory conduct began immediately after her complaint and persisted until her employment ended. From this a jury could reasonably infer that plaintiff's complaint about Marroquin's sexual harassment was a motivating factor in her later termination.”). 14 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fourth, causation can be established via “some other circumstance suggest[ing] 11 Here, that “other circumstance” is Defendant’s failure to discriminatory or retaliatory motive. fire (or even admonish) Ms. Carter in January 2010 for taping her meeting with Dayala and Irvine; rather, Defendant waited more than one year and three months (until after Ms. Carter had repeatedly complained about illegal conduct) to fire her. AMF 189-195. Fifth, causation can also be shown by Ms. Carter’s evidence of pretext. See, infra § VII B. B. Ms. Carter Can Easily Demonstrate That Defendant’s Purportedly Legitimate, Reason For Firing Her Is Pretext For Discrimination/Retaliation Defendant’s final argument is that Ms. Carter has no evidence of pretext. See Motion, 12:8- 16:4. In this regard, Defendant asserts, as its purported legitimate non-discriminatory/non- retaliatory reason for firing for her, that Ms. Carter did not have consent to record Irvine. See Motion, 1:4-7. As explained below, Ms. Carter has overwhelming evidence of pretext. The Reason Put Forth By Defendant Is False - A plaintiff can show that a defendant’s purportedly legitimate, nondiscriminatory reason for the adverse action is really pretext for discrimination/retaliation by showing that the reason is false.'* Here, the evidence demonstrates that the reason is false because Ms. Carter had the consent of Dayala and Irvine. AMF 62-84. The Reason Put Forth By Defendant Does Not Make Sense - A plaintiff also can show that a defendant’s purportedly legitimate, nondiscriminatory reason for the adverse action is pretext by showing that the reason is so weak, implausible, and/or incoherent that a reasonable factfinder H See Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686, 714 (2008); Farrell v. Planters LifeSavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (reversing summary judgment; “[T]he type of evidence that can be considered probative of a causal link . . . is not limited to timing and demonstrative proof, such as actual antagonistic conduct or animus. Rather, [causation can be inferred from] other evidence gleaned from the record as a whole. . .. ‘[I]t is important to emphasize that it is causation, not temporal proximity [or evidence of antagonism], that is an element of plaintiff’s prima facie case, and temporal proximity [or antagonism] merely provides an evidentiary basis for which an inference can be drawn.’”) (some alteration in original). See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”); Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000); Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 356 (2000)(“In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.”); Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2016), { 10:268:20 (“Evidence showing employer's reasons pretextual: Evidence showing facts inconsistent with the employer's claimed reasons tends to prove the employer's discriminatory intent.”). 15 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 could find it unworthy of credence and, hence, infer that the employer did not act for that reason. Here, given that Defendant did not fire Ms. Carter for more than one year and three months after she purportedly violated one of Defendant’s rules, a reasonable factfinder could find Defendant’s explanation unworthy of credence and, hence, infer that Defendant did not act for that reason. This is particularly true given not only that Dayala and Irvine were aware of the recording in January 2010 (and Brancato was aware of it in May 2010) and they did not discipline Ms. Carter but also that none of them even reported Ms. Carter’s conduct as required by Defendant’s policy should they have even suspected a policy violation. AMF 62-84. The Timing of Defendant’s Investigation of Ms. Carter Proves Pretext - A close temporal proximity between protected activity and an adverse action supports an inference of pretext. “Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.” Scotch v. Art Institute of California-Orange County, Inc., 173 Cal. App. 4th 986, 1020 (2009); Taylor, 144 Cal. App. 4th at 1235. “Pretext may... be inferred from the timing of the company’s termination decision...” Flait, 3 Cal. App. 4th at 479. Here, as explained above, see supra § III (1), less than one month after Ms. Carter met with Colton on November 9, 2010, complained of illegal conduct and expressed concern that Fannie Mae would not act, Defendant began a retaliatory “investigation” of Ms. Carter for conduct that had occurred in January 2010 - i.e., conduct that had occurred nine months earlier and long before her November 2010 meeting with Colton. This alone demonstrates pretext. Lack of A Vigorous Investigation of Ms. Carter’s Allegations - Though Fannie Mae claims to have engaged in a full investigation of Ms. Carter’s allegations of illegal conduct, a cursory 13 See Gémez-Gonzdlez v. Rural Opportunities, 626 F.3d 654, 662-63 (1st Cir.2010) (“Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non- discriminatory reasons.”) quoting Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir.1997); Guz v. Bechtel Nat., 24 Cal. 4th 317, 363 (2000)(“an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions.”). '* Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (“That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from the ‘proximity in time between the protected action and the allegedly retaliatory employment decision.’”). 16 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review shows otherwise. Indeed, as described in detail above, despite a more likely than not standard, Fannie Mae claims to have found NO RESPA violations. However, when the FBI learned of similar allegations against Granillo, he was found guilty beyond a reasonable doubt. Despite this fact, Arrington testified that Ms. Carter’s allegations were not supported by the evidence. AMF 169. Indeed, no one was ever disciplined as a result of Ms. Carter’s May 19, 2010 complaint. AMF 176. Further proof of the sham investigation is that key individuals whom Ms. Carter identified in the kickback scheme were not even interviewed. AMF 177-178. Nor was Ms. Carter’s former supervisor Dayala interviewed. AMF 179. The lack of a rigorous investigation by Fannie Mae is evidence suggesting that Fannie Mae “did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when [Ms. Carter] made [her] complaint.” Mendoza v Western Med., 222 Cal. App. 4th 1334, 1344 (2014). Absence of Any Investigation of Ms. Carter’s Race Discrimination Complaints - When an employee complains of illegal harassment and/or discrimination in the workplace, the employer has an affirmative obligation to investigate." Again, Fannie Mae did nothing to investigate Ms. Carter’s complaints of race discrimination; in fact, Fannie Mae incredulously denies Ms. Carter even complained of race discrimination. AMF 170. Rather, Ms. Carter was fired. Such lack of investigation establishes pretext. Mendoza, 222 Cal. App. 4th at 1344. Departure From Normal Procedure - Fannie Mae’s lack of an investigation of Plaintiff’s complaints regarding race harassment/discrimination is also a departure from Fannie Mae’s normal procedure. Indeed, Fannie Mae’s policy is to investigate claims of race discrimination. AMF 170. Hence, this departure from Fannie Mae’s normal procedure demonstrates pretext. '® = See Metters v. Ralphs Grocery Co., 161 Cal. App. 4th 696, 703 (2008)("When, as here, the complaint is for discrimination under the FEHA, the employer's duty to investigate promptly is affirmative and mandatory . . .. "); American Airlines v. Superior Court, 114 Cal. App. 4th 881, 890 (2003)(“Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation to ensure a discrimination-free work environment.”); Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035 (2002). A company’s failure to investigate (and/or to investigate fully) can be used to demonstrate pretext. Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)(finding “little or no attempt to investigate or hear Duchon’s side of the story...sufficient to defeat motion for summary judgment.”). 1 See, e. g., Deschene v. Pinole Steel Co., 76 Cal. App. 4th 33, 46 (1999) (court found such evidence substantial where plaintiff’s supervisor was not critical of others over a problem that existed for some time); Village of Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)(“Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role”). 17 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uneven Application of Rule- Being punished differently evidences discrimination and retaliation. As stated in Colarossi v. Coty USA Inc., 97 Cal. App. 4th 1142 (2002): While Colarossi and another employee who participated in the investigation were terminated for falsifying their reports, at least two other employees who did not participate in the investigation were merely put on probation for doing the same thing-a punishment delineated in the employee handbook. Coty is quick to point out that it has fired other workers in the past for violating its record-keeping policies. But that still does not explain why it chose to terminate Colarossi rather than give her probation. Colarossi, 97 Cal. App. 4th at 1154. "Here, in the only other example of an individual who recorded a conversation without permission, the individual was given a written warning; he was not terminated. AMF 200. Arrington never even gave consideration to a lesser form of punishment for Ms. Carter. AMF 208. The only clear difference is that Ms. Carter made a complaint of race discrimination and illegal kickbacks (which the FBI corroborated). Likewise, although Defendant determined that Ms. Irvine (a supervisor) violated Defendant’s Code of Conduct, Confidential Information Policy, and Technology Use Policy - the same policy that Defendant alleges Ms. Carter violated - it did not fire Ms. Irvine. Rather, it imposed to most lenient form of discipline available - counseling. AMF 199. Fannie Mae’s “No Tape Recording” Policy is Illegal: Further highlighting the pretextual nature of Fannie Mae’s decision to fire Ms. Carter is the fact that Fannie Mae attempts to justify her termination by reliance on an unlawful policy - namely, its “no tape recording” policy. Here, it is undisputed that Ms. Carter recorded the conversation with her immediate supervisor and her former supervisor in connection with her employment as a Fannie Mae employee and as part of her complaint of discrimination and inconsistent application of employer rules which she believed violated Fannie Mae’s anti-discrimination policies. Because Ms. Carter tape-recorded the conversation with her supervisor in order to document inconsistent application of employer rules and to preserve it for later use in administrative or judicial forums in an employment- related action (AMF 62), Fannie Mae’s prohibition on such conduct is clearly illegal. '® Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803, 817 (1999) (evidence that plaintiff was treated differently from others who were similarly situated demonstrates pretext). See Whole Foods Market, Inc., 363 NLRB No. 87 (2015) (finding employer policy prohibiting recording by electronic device at ‘work without prior approval of management unlawful in violation of section 7 of the National Labor Relations Act, 29 U.S.C. §§ 151 et. seq.); Rio All-Suites Hotel and Casino, 36 NLRB No. 190 (2015) (“Employee photographing and videotaping is protected by Section 7 18 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As the Purported Decision-maker, Arrington’s Denials Prevent Summary Judgment: Fannie Mae’s only “evidence” of Ms. Carter’s purported failure to complain that she was harassed/discriminated against based on race and the reason for the termination was not discriminatory is Arrington’s self-serving statement that she believed Ms. Carter’s complaint was age-based. Indeed, without any basis, Arrington testified that Ms. Carter made an allegation of age discrimination rather than race discrimination/harassment. AMF 206. However, Arrington also concedes that she was aware that Ms. Carter specifically complained about “harassment.” AMF 207. Even this vague complaint is enough for a protected activity sufficient to trigger a duty of the employer to investigate." Arrington’s state of mind alone allows the court to deny this motion. CCP §437c(e) (“summary judgment may be denied ...where the only proof of a material fact...is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof”). The “Cat’s Paw” Doctrine - Defendant argues that Ms. Carter can’t prove that the decision to fire her was “motivated in any way by Plaintiff’s race or complaints” because “Plaintiff never complained to anyone at Fannie Mae about discrimination on the basis of race” and she “certainly did not complain to Ms. Arrington.” See Motion, 13:7-10. As explained above, Ms. Carter did, in fact, repeatedly complain to Fannie Mae about race discrimination - she complained to Teigen, Brancato, and Colton. AMF 124-126, 129-130, 147, 162-65, 171 and 205. While Ms. Carter never spoke with Arrington, Ms. Carter’s complaints can be imputed to Arrington because she (Arrington) admitted that she spoke with Colton about Colton’s investigation into Ms. Carter’s complaints and that she based her decisions on Ms. Colton’s investigation. AMF 188. Hence, Colton’s animus toward Ms. Carter because of her complaints of race discrimination and whistle-blowing can be extended to Arrington and Defendant via the when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. Such protected conduct may include, for example, employees recording . . . discussions about terms and conditions of employment, or documenting inconsistent application of employer rules.”). Miller v. Department of Corrections, 36 Cal. 4th 446, 474-75 (2005) (“We do not believe employees should be required to elaborate to their employer on the legal theory underlying the complaints they are making, in order to be protected by the FEHA™). 19 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Cat’s Paw” Doctrine.?’ Here, there is ample evidence that Arrington was the “cat’s paw” of the clearly biased investigator (Ms. Colton). See AMF 180-189. VIII. SUMMARY JUDGMENT SHOULD BE DENIED AS TO THE SECOND AND THIRD CLAIMS BECAUSE DEFENDANT DOESN’T ADDRESS THE ADVERSE ACTIONS TAKEN AGAINST MS. CARTER OTHER THAN HER FIRING Summary adjudication must completely dispose of a claim. Nazir, 178 Cal. App.4th at 251. The Motion addresses only one of the adverse actions over which Ms. Carter is suing in her second (race discrimination) and third (retaliation) claims - her termination. It does not address other adverse actions such as her written warning and her loss of pay. Accordingly, because the Motion will not completely dispose of those causes of action, it must be denied. IX. THE PUNITIVE DAMAGES CLAIM SHOULD NOT BE DISMISSED While the conservatorship statute does bar punitive damages against Defendant, see 12 U.S.C. § 4617(j), the statute only applies as long as Defendant is actually in conservatorship or receivership. If Defendant exits from conservatorship, then Ms. Carter would be free to pursue her punitive damages claim. Accordingly, a dismissal of her claim for punitive damages should be either (1) deferred until trial at which time a determination can be made as to whether Fannie Mae is still in a conservatorship; or (2) entered without prejudice. DATED: June 7, 2016 HELMER oe FRIEDMAN, LLP Andrew FH. Friedman By: Andrew H. Friedman, P.C. ATTORNEYS FOR PLAINTIFF CECELIA CARTER 2 See Staub v. Proctor Hosp., 562 U.S. 411 (2011)(Under “cat’s paw” doctrine, decision-maker's independent investigation and rejection of employee's allegations of discriminatory/retaliatory animus does not negate effect of prior discrimination; earlier agent’s discriminatory animus imputed to employer); DeJung v. Superior Court, 169 Cal. App. 4th 533, 551 (2008)(“[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus. This legal principle has been colorfully referred to as the ‘cat's paw’ doctrine.”); Reeves v. Safeway Stores, Inc., 121 Cal. App. 4th 95, 100 (2004)(reversing summary judgment in favor of employer; finding that evidence raised triable issues as to whether ultimate decision-makers acted as tools or “cat's paws” of another with retaliatory animus); McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1536 (2013)(“[W]e accept Employee's implicit legal premise that Employer could be liable for Mistry's discriminatory motivation if the male executives who actually terminated Employee were merely the cat's paws of a biased female investigator.”). 20 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AN nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 PLAINTIFF CECELIA CARTER’S OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION aN on FT wn \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28