Melody Fathi vs. Hotel California By The Sea, LLC

Reply to Motion

Cal. Super. - 4th Dist.October 17, 2016

O V 0 3 S o n n A& A W N N O N N N R N N N N N m t e m e m m m p m p m m m e d pe d e d ~ ~ N n B A W N = © V N Y N n n R E W N - = O o 28 TTLER MENDELSON, P.C. 2048 Century Park East Sth Floor 8 Angelos, CA 90067.3107 310.553.0308 BRANDIE N. CHARLES, Bar No. 188892 ASHLEY J. BRICK, Bar No. 281657 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Fax No.: 310.553.5583 Attorneys for Defendants HOTEL CALIFORNIA BY THE SEA, LLC, CARL MOSEN, KEVIN MELLO, BRIAN BURKE, KEITH MILLER AND ROMAN SUGDEN SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE MELODY FATHI, an individual, Case No. 30-2016-0088-1592-CU-WT-CJC Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE PETER WILSON V. DEFENDANTS’ REPLY IN SUPPORT OF HOTEL CALIFORNIA BY THE SEA, MOTION FOR SUMMARY LLC, a California limited liability ADJUDICATION OF ISSUES company; CARL MOSEN,an individual, KEVIN MELLO,an individual; BRYAN BURKE,an individual; KEITH MILLER, an individual; ROMAN SUGDEN, an individual; and DOES 1 through 20, inclusive, Defendants. [Filed concurrently with Defendants’ Reply Separate Statement of Undisputed Material Facts, Defendants’ Reply to Plaintiffs Statement ofDisputed andAdditional Undisputed Material Facts, Reply Declaration ofAshley J. Brick and exhibits thereto, and Defendants’ Evidentiary Objections] RESERVED HEARING DATE: Date: January 25, 2018 Time: 2:00 p.m. Dept. C15 RESERVATION NO: 72556068 Trial Date: February 26, 2018 Complaint Filed: October 17,2016 1. DEFENDANTS’ REPLY IN SUPPORT OF MSA O O © ~ N a w n A W N 28 TTLER MENDELSON, P.C. 2049 Century Park East 5th Floor 8 Angeles, CA 900673107 310.553.0308 L INTRODUCTION In her opposition to Defendants’ Motion for Summary Adjudication, Plaintiff Melody Fathi (“Plaintiff”) relies almost entirely on self-serving reiterations of the allegations of her Complaint, rank hearsay, and the speculation ofa disgruntled former employee of Defendant Hotel California by the Sea, LLC (“Hotel California”) who purports to attest to inferences she drew from “body language” and whose key testimony is based entirely on information obtained from a unnamed source. Stripped of inadmissible, speculative, and self-serving “evidence,” Plaintiff's opposition completely fails to rebut the material facts upon which Defendants’ motion is based. As such, Defendants’ motion should be granted in its entirety. IL LEGAL ARGUMENT A. Plaintiff’s Claim for Retaliation in Violation of California Labor Code Section 1102.5 (First Cause of Action) Fails Because it is Based Entirely on Speculation. 1 Plaintiff’s Circumstantial Evidence Must Be Analyzed Using the Traditional Burden-Shifting Framework. Although Plaintiff claims to offer “direct evidence” of discrimination in opposition to the instant motion, what she actually offers is an attempt to rebut Hotel California’s evidence that it had a legitimate, non-retaliatory basis for terminating her employment. While statements by decision- makers may constitute direct evidence of discrimination in some circumstances, Plaintiff here offers nothing more than rank hearsay, as well as wild speculation regarding the meaning of one party’s alleged statements, which is direct evidence of nothing. As Plaintiff herself explains in her opposition, comments “may be found to be direct evidence if there is a causal relationship between the comments and the adverse job action at issue.” PIf. Br. at 3, quoting DeJung v. Superior Court, 169 Cal. App. 4th 533, 550 (2008) (emphasis added). But Plaintiff does not offer evidence of a causal connection here; rather, she attempts to create an inference of causation by suggesting that alleged comments by Defendant Kevin Mello are evidence of his purportedly retaliatory state of mind. As will be discussed below, Plaintiff fails to make a direct connection between any alleged statement by a decision-maker and any alleged adverse action because her evidence is speculative, contradictory and, in some cases, inadmissible. Thus, the traditional burden-shifting method for analyzing circumstantial evidence applies here, and Plaintiff can avoid summary adjudication only 2. DEFENDANTS’ REPLY IN SUPPORT OF MSA O W 0 2 O v W n A W O N N N N R N N N N e m = e m e m e m e e e m e m N Y n n B A W N = O O N Y A W N = O 28 TTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Angeles, CA 90067.3107 310.553.0308 by offering substantial evidence to discredit Hotel California’s legitimate, non-retaliatory reasons for its actions. See Horn v. Cushman & Wakefield Western, 72 Cal. App. 4th 798, 807 (1999). This she does not - and cannot - do. 2. Plaintiff Has Failed to Offer Admissible Evidence of Causation or Pretext. An essential element of Plaintiff's prima facie case is a causal connection between her alleged protected activity (her purported reports to Hotel California regarding client billing issues) and an adverse employment action (i.e., the reduction of Plaintiff's hours or her termination). See Patten v. Grant Joint Union High School Dist., 134 Cal. App. 4th 1378, 1384 (2005). Plaintiff's evidence in opposition to this motion comes in the form of two declarations: her own (“PIf. Decl.”) and that of former Hotel California employee Amanda Neeble-Diamond (“Neeble-Diamond Decl.”). Plaintiff’s Declaration is self-serving in that it essentially repeats the allegations of her Complaint. This is wholly insufficient to save her claim. See Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 845 (2001) (a plaintiff may not rely on the mere allegations or denials of her pleadings to show that a triable issue of material fact exists). Furthermore, Plaintiff's Declaration is focused mostly on recounting conversations she alleges to have had with unnamed Hotel California clients abouttheir billing records, as well as conversations she alleges to have had with Hotel California personnel relaying clients’ questions and concerns. See, e.g., PIf. Decl., {{ 5- 15, 19-28. This portion of Plaintiff's Declaration is rife with inadmissible hearsay purporting to recount statements by non-parties. See, e.g., Defendants’ Objections to Plaintiff's Evidence, Nos. 29- 59, 74-97. Furthermore, even if some or all ofthe hearsay in Plaintiff's Declaration regarding billing issues was admissible, it is entirely irrelevant to Plaintiff’s retaliation claim, because Hotel California has not, for the purposes of this motion, contested that Plaintiff reported client billing inquiries to its personnel. See Defs.” Br. at 15-16. In other words, the Declaration does not create a relevant factual dispute. As for Neeble-Diamond’s Declaration, which Plaintiff cites as the primary evidentiary support for her retaliation argument (PIf. Br. at 2), it is more notable for what it does not say than what it does. Neeble-Diamond does not contest that Plaintiff had significant performance issues. % DEFENDANTS’ REPLY IN SUPPORT OF MSA O O 0 J J O& O W n & W W N D - N y v n B A L N = O 0 R W N N ~ ~ O o 28 FTLER MENDELSON, P.C. 2049 Century Park East 5th Floor 8 Angeles, CA 900673107 310.551.0308 Indeed, she does not suggest that a single issue identified in Plaintiff's Employee Improvement Plan was incorrect or unjustified.! Neeble-Diamond also does not suggest that Plaintiff's tardiness was justified or that she gave proper notice when she would be tardy. Neeble-Diamond does not confirm that Plaintiff complained to Hotel California about any illegal practices, nor does she suggest that anyone at Hotel California believed Plaintiff complained about any illegal practice. Neeble-Diamond does not address,let alone refute, Hotel California's legitimate, non-retaliatory reason for reducing Plaintiff's workload and hours. She also does not suggest that Hotel California was wrong to believe that Plaintiff was having difficulty maintaining a work-life balance or that Plaintiff was exceeding appropriate boundaries with her patients. And, most importantly, Neeble-Diamond does not refute that Plaintiff improperly scheduled an off-site therapy session and thenlied about it.2 What Neeble-Diamond does do is speculate wildly. She states that Mr. Mello once said he was “tired” of Plaintiff's “complaints.” Neeble-Diamond Decl, § 5. She then claims to have read his “body language” and “formed the impression” that he was “bothered.” /d. Although she admits she has no idea what “complaints” Mr. Mello was referring to or why they might have bothered him, she now believes - based on something she claims to have learned “well after” Plaintiff’s termination JSrom an unidentified source - that the “complaints” must have been about “potential insurance fraud,” and she now infers that this was the reason Mr. Mello wanted her (and Bryan Bixler) to document a basis for Plaintiff's termination. /d., § 6. Based on this utterly speculative conclusion (which is entirely lacking in any foundation or any indicia of personal knowledge), Plaintiff concludes that we can infer Mr. Mello’s state of mind, which, in Plaintiff's view, was retaliatory. PIf. Br.at 8-9. Far from the “iron clad” evidence Plaintiff suggests this constitutes,it is nothing more than unfounded conjecture. Even if the Court were to deem Neeble-Diamond’s testimony regarding Mr. Mello’s purported statements admissible and accept them as true, she admits she does not know ' Even when authenticating an email she sent to Plaintiff in 2015, Neeble-Diamond steers clear of endorsing Plaintiff's performance. In fact, she stops short of even providing context for the email. See Neeble-Diamond Decl., § 7. ? Plaintiff states that certain group activities in which Hotel California clients participated took place off-site, including, among otherthings, boating, going to movies, and bowling. PIf.’s Decl., § 35. Neeble-Diamond does not dispute Hotel California's position that it was improper for Plaintiff to schedule a one-on-one therapy session off site. 4, DEFENDANTS’ REPLY IN SUPPORT OF MSA O O 0 9 O N u n B s W N N O N N N N N N N r m m m m d e d pe t e m e h e t p m pe d N A A n y E W N = O 0 0 N Y s e w N N - © 28 TTLER MENDELSON, P.C. 2049 Contury Park East 5th Floor & Angeles, CA 90067.3107 3105530208 what “complaints” Mr. Mello was referring to. Neeble Diamond Decl., § 5-6. Plaintiff had issues with being exhausted by her workload, feeling overloaded with work, claims she had too many clients, felt she did not have enough time to get her work completed on time, and Neeble-Diamond admits that Mr. Mello said absolutely nothing to indicate that Plaintiffs “complaints” were of the whistleblowing variety. To the contrary and very tellingly, Neeble-Diamond admits that she first heard about potential insurance fraud only “well after” her interactions with Mr. Mello regarding Plaintiff, and this information came from a source she does not divulge. /d., § 6. Thus, Neeble- Diamond provides no foundation whatsoever - because she cannot - for her conclusion that Mr. Mello wanted to terminate Plaintiff's employment due to any alleged reports about client billing issues, nor it is even reasonable to assume that Neeble-Diamond’s conclusion is based on her own personal knowledge. In fact, it is entirely possible, if not likely, that Plaintiff herself is the unidentified source upon which Neeble-Diamond relies, in which case it would be absurdly circular to permit Plaintiff to rely on Neeble-Diamond as her sole source of evidence ofretaliation. In sum, rather than constituting credible evidence, Neeble-Diamond offers no more than speculation that is likely based on Plaintiff's own speculation. Plaintiff cannot defeat summary adjudication by reference to speculation. See Horn, 72 Cal. App. 4th at 807. Stripped of Neeble-Diamond’s unfounded and entirely unfounded post hoc conclusions about what Mr. Mello may have been thinking, we are left with nothing more than her vague, second-hand account of a termination discussion between Mr. Mello and Keith Miller (in which neither is alleged to have said anything discriminatory or retaliatory) and her recollection that Mr. Mello directed her and Mr. Bixler to document Plaintiff's performance issues in advance of termination. Neeble- Diamond Decl., §6, 8. The exceedingly common instruction by an employer to document a poorly- performing employee’s legitimate performance issues prior to termination is hardly substantial evidence of retaliation. Again, Neeble-Diamond does not contest that Plaintiff had significant performance issues. Given the complete lack of any competent, non-speculative evidence of a causal connection between Plaintiffs alleged reports ofclient billing issues and her termination, her primafacie claim for retaliation fails. For the same reason, Plaintiff cannot demonstrate pretext. See Morgan v. The 5 DEFENDANTS’ REPLY IN SUPPORT OF MSA O W 0 0 9 O o n n & W W N N - N N N N N N N RN ) m m e m e a e d p m p m be t ee d p e N O N W n A W N = O W N S R E L N = O O 28 TTLER MENDELSON, P.C 2049 Contury Park East 5th Foor & Angeles, CA 90067.3107 310.553.0308 Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000) (“Circumstantial evidence of ‘pretense’ must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on an improper basis.”). Plaintiff's retaliation claim, therefore fails. B. Plaintiff Has Failed to Rebut Hotel California’s Facts Regarding Her Claim of Disability Discrimination (Third Cause of Action). The undisputed facts here establish that (1) Hotel California never once denied Plaintiff any time off for her medical condition, and (2) Hotel California personnel were nothing less than kind and supportive to Plaintiff regarding her condition. See PIf.’s Oppo. to Defs.” SOF {f 78-102. In other words, there is no evidence, whatsoever, that Hotel California harbored any discriminatory animus against Plaintiff based on her medical condition, let alone that it took any adverse action based on any such animus. Plaintiff cannot rebut these facts. She, therefore, seeks to rely upon Neeble-Diamond’s Declaration, which includes hearsay statements allegedly made by Mr. Bixler about Plaintiff's health, as purported “direct evidence” of discrimination.’ PIf. Br. at 3-4. However, critically, Neeble- Diamond does not suggest that any of Mr. Bixler’s comments was related to Plaintiff’s termination. Neeble-Diamond Decl., § 4. Neeble-Diamond also does not suggest a connection between the change in Plaintiff's work schedule and Mr. Bixler’s alleged statements. In fact, Neeble- Diamond (who was also responsible for the decision) is notably silent about it. She does not suggest that the decision was unjustified, nor does she suggest that she did not support it. Despite this, Plaintiff’s theory is that Mr. Bixler’s purported state of mind (which she argues can be inferred from Neeble-Diamond’s Declaration) creates an issue of fact regarding whether Plaintiff's termination was based on his view of her medical condition. However, in order to accept Plaintiff's argument, 3 Hearsay evidence,if admissible, would at most constitute circumstantial evidence of Mr. Bixler’s state of mind on the issue of pretext, not direct evidence of discrimination. See Colarossi v. Coty US Inc., 97 Cal. App. 4th 1142, 1150 (2002). Ironically, Plaintiff contends that Neeble-Diamond’s hearsay recitation of Mr. Bixler’s purported statements is “direct evidence” of discrimination while, in the same breath, contending that Mr. Bixler is “wholly incompetent” to testify that he and Neeble-Diamond together made the recommendation to terminate Plaintiff's employment (PIf. Br. at 1), a claim which Neeble-Diamond actually confirms in her own Declaration (Neeble- Diamond Decl., § 8). In addition, Mr. Bixler is a non-party and Plaintiff has offered no reason why the rule barring the admission of hearsay into evidence should not apply to him. As such, the statements that Neeble-Diamond attributes to him are inadmissible and Plaintiff’s argumentthat his declaration is “inconsistent” with those alleged statements is baseless. See PIf. Br. at 4. 6. DEFENDANTS’ REPLY IN SUPPORT OF MSA O O 0 0 J O O w n A WL W O N - - N O R N O R O N N N R N m e m t m t e t p d m m m m m m b e ~ N O N U n A W N = O O V W O e N N N n n R E L N N - - O o 28 TTLER MENDELSON, P.C 2043 Century Park East Sm Floor £ Angeles, CA 900673107 3105530308 the Court would have to completely ignore the remainder of Neeble-Diamond’s Declaration, in which she states that it was Mr. Mello - not Mr. Bixler - who wanted Plaintiff terminated and that Mr. Mello’s reasoning was based on Plaintiff's purported “complaints,” not her medical condition. Id, {7 5-6. While Hotel California denies that Mr. Mello initiated Plaintiff's termination, the problem here is the fatal inconsistencies in Plaintiff's own evidence. If Plaintiff is correct that her termination was initiated by Mr. Bixler based on discriminatory animus, then Neeble-Diamond cannot be correct that Mr. Mello ordered the termination based on Plaintiff's “complaints.” If Plaintiff is correct that Mr. Mello ordered Mr. Bixler to terminate her because of “complaints,” then what Mr. Bixler may or may not have thought about her medical condition was irrelevant to that decision. Plaintiff's attempt to use these inherent inconsistencies in her own factual allegations to support her motion without any attempt to reconcile them may create confusion about Plaintiffs own theory of liability, but it does not create a legitimate factual dispute as to Hotel California's legitimate business reasons to terminate Plaintiff's employment. To overcome summary adjudication, Plaintiff must show that a material fact relied upon by Hotel California is in dispute, not that her own legal theories are in dispute. Because she cannot dispute the relevant material facts upon which Defendants rely for the issues advanced in their moving papers, the Court should grant summary adjudication in Hotel California’s favor on Plaintiff's discrimination claim. C. Plaintiffs Claims for Failure to Accommodate and Failure to Engage in the Interactive Process (Sixth and Seventh Causes of Action) Fail Because Plaintiff Admits that Hotel California Granted All of Her Requests for Accommodation. Plaintiff's claims offailure to accommodate and failure to engage in the interactive process fail because she has not identified a single instance in which she requested an accommodation that Hotel California denied, nor does she identify any instance in which Hotel California failed to engage in the interactive process. See PIf.’s Oppo. to Defs.” SOF qf 78-102; PIf. Decl. § 16. These are essential elements of her prima facie case. See Scotch v. Art Inst. of Calif., 173 Cal. App. 4th 986, 1013 (2009). Plaintiff attempts to divert the Court’s attention from her inability to state a prima facie case by offering Neeble-Diamond’s Declaration as purported evidence that Mr. Bixler was “annoyed” by and “took issue with” Plaintiff taking time off. See PIf. Br. at 5-6. Even if the Court Ts DEFENDANTS’ REPLY IN SUPPORT OF MSA O O 0 0 ~ ~ O& O w n B A W w N N N O N O N O N R N R N R N e m e m e a e m e d p m e d e t e m e e N O N n e BR A W N = O O N O N i y R W = O o 28 TLER MENDELSON, PL. 2049 Century Park East 5 Floor s Angeles, CA 90067.3107 310 553.0308 were to accept Neeble-Diamond’s account ofwhat Mr. Bixler said despiteit being rank hearsay,it is not evidence that Hotel California failed to do anything it was required to do, nor can it overcome Plaintiff's admission that Hotel California always accommodated Plaintiff's need for time off (which she admits is the only accommodation she ever requested). See PIf.’s Oppo. to Defs.” SOF {{ 78- 102. Thus, Plaintiff's claims for failure to accommodate and failure to engage in the interactive process fail for a complete want of evidence of any failure. See Horn, 72 Cal. App. 4th at 787 (plaintiff must present “specific, substantial evidence” in order to defeat summary judgment); Committee to Save Beverly Highlands Homes Ass'n v. Beverly Highlands Homes Ass'n, 92 Cal. App. 4th 1247, 1261 (2001) (“[a] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial”). D. Plaintiff Does Not Oppose Defendants’ Motion with Regard to Her Claim for FEHA Retaliation (Fourth Cause of Action). Plaintiff does not oppose Hotel California’s motion for summary adjudication of her FEHA retaliation claim, nor can she. Plaintiff's claim is barred because it is based on the alleged protective activity of having requested a disability accommodation, but no such cause ofaction existed during the time period at issue here, as discussed more fully in Defendants’ initial brief. See Defs.” Br. at 23-24. E. Plaintiff Has Failed to Identify Any Conduct Egregious Enough to Warrant the Imposition of Punitive Damages. On the issue of punitive damages, Plaintiff simply argues that she was “targeted” for discipline and termination, See PIf. Br. at 10. Plaintiff's argument actually highlights the basis for Defendants’ motion, i.e., she alleges nothing more egregious than garden-variety discrimination and retaliation, and she identifies no conduct so beyond the pale as to warrant the extreme remedy of punitive damages. The type of conduct that is so despicable as to warrant punitive damages “has been described as ‘[having] the character of outrage frequently associated with crime.’Tomaselli v. Transamerica Ins., 25 Cal. App. 4th 1269, 1287 (1994). Such damages are proper only when the tortious conduct rises to levels of extreme indifference . . . a level which decent citizens should not have to tolerate.” Id. As such, punitive damages are not automatic in all employment discrimination and retaliation cases. Rather, a plaintiff seeking such an award must prove more than just her 8. DEFENDANTS’ REPLY IN SUPPORT OF MSA N O N R N O N N N N R N r m m m m m e t e m m m e t e d e s N N n n A W N = O V D R W N N = O 28 TTLER MENDELSON, P.C. 2049 Century Park East 5th Float 2 Angeles, CA 90067.3107 310.553.0308 underlying claim. See, e.g., Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2004) (finding summary judgment proper on punitive damages claim despite potentially valid retaliation claim). In addition to proving that she was harmed, Plaintiff must demonstrate that the wrong was committed under conditions of oppression, malice, or fraud. CAL. CIV. CODE § 3294(b). Here,as discussed in Defendants’ initial brief, although Plaintiff claims that Defendants engaged in wrongful conduct, she describes nothing so outrageous that would even suggest punitive damages might be warranted. Indeed, even Neeble-Diamond’s Declaration, which Plaintiffcites as the primary evidentiary support for her arguments, does not dispute in any way that that Plaintiff had significant performance issues, that Plaintiff scheduled an off-site therapy session with a client in violation of company policy, and moreover confirms that Neeble-Diamond herself recommended the termination of Plaintiffs employment. F. Plaintiff’s Derivative Claims Fail for the Same Reasons that the Claims Upon Which They are Based Fail. Plaintiff’s claims for Failure to Prevent Discrimination and Retaliation (Fifth Cause of Action), Wrongful Termination (Eighth Cause of Action), and Declaratory Judgment (Ninth Cause of Action, the only claim asserted against the individual Defendants) are entirely derivative of her FEHA or Section 1102.5 claims. As discussed in Defendants’ initial brief, these derivative claims mustfail for the same reasons that Plaintiff's underlying claims fail. See Defs.” Br. at n. 7. III. CONCLUSION Based on the foregoing, Defendants requestthat this Court grant their motion in its entirety. Dated: January 19,2018 Dhrondee (Parlea BRANDIE N. CHARLES ASHLEY J. BRICK LITTLER MENDELSON, P.C. Attorneys for Defendants HOTEL CALIFORNIA BY THE SEA, LLC, CARL MOSEN, KEVIN MELLO, BRIAN BURKE, KEITH MILLER AND ROMAN SUGDEN Firmwide:152285198.7 087799.1001 9 DEFENDANTS’ REPLY IN SUPPORT OF MSA