Memorandum_of_points__authorities_in_reply_to_opposition_to_motion_for_summary_judgmentReplyCal. Super. - 2nd Dist.April 17, 2015Electronically FILED b - NN ON DN ND NM NN NMNM DN 2 a a a oa =o =a om = = N O Or A W N 2 OO © 00 0 N O O h O N = O © © ~N Oo a A W N Superior Court of California, County of Los Angeles on 03/01/2019 01:39 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk Michael H. Porrazzo (SBN #121260) Nicholas D. Porrazzo (SBN #309235) THE PORRAZZO LAW FIRM 28202 Cabot Road, Suite 300 Laguna Niguel CA 92677 Telephone: 949-348-7778 | Facsimile: 949-209-3514 E-Mail: mhporrazzo@porrazzolaw.com ndporrazzo@porrazzolaw.com Attorneys for Defendant, WESTERN CHRISTIAN SCHOOL, SHAUNA ATTWOOD, MICHELLE BROWNING, GREG SAUGSTAD SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT CARLOS MAYNES, CASE NO. BC579047 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO VS. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WESTERN CHRISTIAN SCHOOL, SHAUNA ATTWOOD, MICHELLE Date: March 6, 2019 BROWNING, GREG SAUGSTAD; and Time: 8:30 a.m. DOES 1 through 100, inclusive, Dept.: 53 Judge: Hon. Robert B. Broadbelt ITI Defendants. Res ID: 181001353197 Defendant WESTERN CHRISTIAN SCHOOL (“WCS”), SHAUNA ATTWOOOD, MICHELLE BROWNING AND GREG SAUGSTAD hereby submit the following Memorandum of Points and Authorities in Reply to Plaintiff's Opposition to it support of their Motion for Summary Judgment: I. SUMMARY OF ARGUMENT Plaintiff literally throws the “kitchen sink” full of paper at this court, submitting every single Jull deposition transcript in this case, in the hopes that this court will wade through thousands of pages and, with a jeweler’s eye for detail, find perhaps one scintilla of evidence that might result in the denial of this motion. This “strategy” won't work because what is most telling about Plaintiff’s Ww 00 ~N O O Oa Ar W N = N DN N NN DN a@ a QQ 2 @ a2 BD 2a =a =a a opposition is what is does not contain: there is absolutely no evidence offered of any discrimination, racial or otherwise, against Carlos Maynes while he was employed at Western Christian. None. This Motion for Summary Judgment must be granted on this basis alone. Plaintiffs opposition can be distilled to 4 arguments. None are persuasive. 1. Western Christian is a “Public Benefit”, not a “Religious” corporation. False. Western Christian School is a “Religious Corporation” according to its Amended Articles of Incorporation filed in 2010, the year Plaintiff started employment According to the declaration of Defendant and Superintendent Blair Bryant, Western Christian School has, since it’s formation in 1918 by the Brethren in Christ denomination, and it’s - in 1920 as “Beulah College and Bible School” operated continuously an uninterruptedly as a school dadioatad to the philosophy of Christian education, recognizing God as the supreme source of all truth and knowledge, and teaching the gospel of Jesus Christ. Plaintiff’s children attended Western Christian School for over. 10 years. A religious corporation’s status is defined first and foremost by its articles of incorporation, and then by the grant of tax exempt status/religious corporation by the Internal Revenue Service, both of which were produced as evidence in Defendant’s moving papers. Henry v. Red Hill Lutheran Church and School, 201 Cal App. 4" 1041 (2011). 2. Western Christian School is not entitled to the “Religious Corporation” exemption under FEHA because it has anti-discrimination policies. | “False. It has been held in this jurisdiction, and throughout the United States, that religious and other non-profit corporations do not waive their constitutionally-based exemptions from anti- discrimination laws just because they have employment policies that prohibit discrimination. Pratt v. Chenega Integrated Systems No. C-07-01573 (USDC, ND Cal. 2007). 3. Plaintiff’s Sixth Cause of Action (“COA”) survives because it is not FEHA-based, but based on public policy considerations in addition to FEHA such as violation of Labor Code 1102.5. False. Plaintiff’s Sixth COA is his Second Amended Complaint (“SAC”) reads, quote: “(6) Wrongful Termination of Employment in Violation of Public Policy (FEHA, Labor Code Section © 00 ~N OO Oa A W O N N N N N D D N 2 2 oa dQ 2 2 a = =a = 1102.5, Title VII, ADA). FEHA is listed first as the basis for the claim. In addition, this court dismissed Plaintiff’s Labor Code 1102.5 claim, and the Court of Appeals upheld that portion of the dismissal. There is no Labor Code 1102.5 claim remaining in this case, whether standing alone, or as the “basis” for any other claim. 4. Plaintiff’s “at-will” status is a Red Herring False. Plaintiff was an at-will employee of Western Christian Schools. On summary Judgement, once Defendant has established a legitimate, non-discriminatory reason for Plaintiff’s termination, the burden of proof at summary judgment shifts to Plaintiff to produce evidence of discrimination sufficient to overcome “at-will” status. Cal. Govt. Code §12940, et. seq., See Featherstone v. Southern California Permanente Medical Group, 10 Cal. App. 5% 1150 (2017): “By presenting evidence [of a legitimate, nondiscriminatory reason] for the adverse employment action, the employer shifts the burden to the plaintiff to present evidence that the employers decision was motivated, at least in part, by prohibited discrimination. The plaintiff's evidence must be sufficient to support a reasonable inference that the discrimination was a substantial motivating factor in the decision.” Plaintiff utterly fails to do so in his opposition. Shockingly, there is no evidence - none whatsoever - of discrimination, racial or otherwise, in any of Plaintiff’s evidence in opposition to this motion. This Motion must granted. II. ARGUMENT A. WESTERN CHRISTIAN SCHOOL IS A “RELIGIOUS CORPORATION” As noted in its moving papers, Defendant Western Christian School filed its Amended Articles of Incorporation in 2010, as a “religious corporation”, under “California Nonprofit Religious Corporation Law primarily for religious purposes” to wit: “To glorify God and His truth by passing on His self-revelation to successive generations, to provide high quality education in a Christ-centered environment that integrates faith and learning; to disseminate, teach and preach the Gospel and teachings of Jesus Christ, and to encourage and aid the growth nurture, and spread of the Christian religion; to train Christian young men and women to impact our world in a positive manner for Jesus Christ.” MSJ, EX. 4. © 00 ~N Oo 0 A Ww W NN = N N N N = a2 2 @ Q = o m =a =a a = N N B E R V D N R B E B © o J 5 a rr @ 0 = © Western Christian School was granted tax exempt status as such by the Internal Revenue Service on August 9, 1993, and maintains “religious entity (RE)” status by the State of California Franchise Tax Board since June 16, 1958, to the present. MSJ, EX 2,3. Western Christian School is a member of the Association of Christian Schools International, the accreditation agency for over 6,000 members schools in the US, and worldwide. MSJ, EX 6. Cal. Govt. Code §12926(d) exempts religious corporations and associations - not just churches - from the anti-discrimination laws in California. The term “religious association ... not organized for private profit” (Govt. Code §12926(d)) is interpreted broadly to include “any entity with colorable religious motivation and substantial bona fide religious affiliations.” Kelly v. Methodist Hosp. of Southern Calif. 22 Cal. 4" 1108, 1125." As our Supreme Court stated in Kelly: “Every religiously affiliated entity generally is both secular and religious to some extent, from small entities like soup kitchens and parochial schools to large organizations like religiously affiliated universities and the Christian Science Monitor. We are not prepared to hold that all of these are prohibited from qualifying as religious solely because their functions can be duplicated in some manner by secular institutions... we therefore read the relevant version of the religious entity exemption as encompassing any entity with colorable religious motivation and insubstantial bona fide religious affiliations.” Id, at 1124-25 (Emphasis added.) Western Christian Schools is a religious corporation by any method of analysis, but particularly so under the “broad interpretation” to which it is entitled by virtue of Kelly v. Methodist Hospital. Plaintiff offers no evidence to the contrary. B. PLAINTIFF'S SIXTH CAUSE OF ACTION IS DIRECTLY BASED ON FEHA AND ON THE DISMISSED CLAIM OF LABOR CODE SECTION 1102.5 Next, Plaintiff rather surprisingly claims (evidently without reading his own complaint) that his Sixth COA for wrongful termination in violation of pubic policy is “completely independent of FEHA.” | Really? Plaintiff's SAC states: ~ “PLAINTIFF CARLOS MAYNES’S SECOND AMENDED COMPLAINT FOR DAMAGES FOR...(6) WRONGFUL TERMINATION OF EMPLOYMENT IN VIOLATION OF PUBLIC POLICY (FEHA, LABOR CODE § 1102.5; TITLE VII; ADA” Ww 0 ~N oo a A W O N = N N N N N DN D N a a a 2 =a =a a =a =a a = N N SB B R O R S © 8 4 oa a bp &@ NB 2 0 Inasmuch as FEHA is the first stated basis for the Sixth COA, Plaintiff can hardly state with any academic integrity that his public policy claim is “completely independent of FEHA.” There is more. The Labor Code §1102.5 claim was dismissed by this court on demurrer sustained without leave to amend on March 14, 2016. That dismissal of the Labor Code §1102.5 claim was upheld by the Court of Appeals on November 14, 2017. There is no Labor Code §1102.5 claim left in this case, whether independently or as a “basis” for any other claim. But there is more. Plaintiff also throws in, for good but misplaced measure, Title VII and ADA under Federal law as a “basis” for the Sixth COA. However, Plaintiff dismissed those Federal claims as a way to avoid Federal Question jurisdiction after Defendant removed this case to Federal court last year. On the basis of Plaintiff’s dismissal of those claims by method of filing an amended complaint in Federal court, United States District Court Judge Hon. Philip Gutierrez remanded this case back to this court. Plaintiff cannot now via the back door resurrect claims that have previously been dismissed by both Federal and State courts in order to state a “basis” for the Sixth COA. Plaintiff is doing nothing more than playing linguistic games in which he writes the rules. But Plaintiff not only write the rules, he edits, ignores and breaks those rules when he wishes to do so. The Sixth COA is an excellent example of this now four-year old pleading charade: it spans seven pages of the SAC, is virtually indecipherable, and randomly throws in essentially every employment law Plaintiff can think of as a “basis” for a wrongful termination public policy claim. There are two reasons why this “kitchen sink”, scattershot approach doesn’t work: first, Plaintiff offers no evidentiary facts of discrimination in his opposition on which to base any claim for discrimination in employment, and second, because Henry v. Red Hill Evangelical Lutheran Church of Tustin, 201 Cal. App. 4" 1041 (2011) forbids such pleading shenanigans: “However, a public policy purportedly tethered to the FEHA statute does not give rise to a cause of action for wrongful termination in violation of public policy when the claim would be precluded under the FEHA because the act specifically exempts the defendant from the definition of employer. Citing Jennings v. Marelle, 8 Cal. 4% 121, 135-136.” (Emphasis added). ww 0 ~N oO a A W N = N O N O N N N D N D N Q R oO 2 @Q @Q @o = o s o m a ow Plaintiff's Sixth COA is, by the very words Plaintiff himself uses in the SAC, more than “tethered” to FEHA. Because FEHA exempts Western Christian School from the definition of employer as a religious corporation, Plaintiffs Sixth COA for wrongful termination in violation of public policy cannot stand. C. WESTERN CHRISTIAN SCHOOL DOES NOT WAIVE ITS STATUROY EXEMPTION UNDER CAL. GOVT. CODE 12926(d) BY ADOPTING ANTI- DISCRIMINATION POLICIES IN AN EMPLOYEE HANDBOOK Plaintiff next claims that Western Christian somehow waived its constitutionally-based protection as a religious corporation by having employment handbook policies regarding discrimination. This argument has been raised, and uniformly rejected, in jurisdictions all across the United States. In a California District Court, this argument was raised and rejected in Pratt v. Chenega Integrated Systems No. C-07-01573 (USDC, ND Cal. 2007), a copy of which is attached hereto and incorporated herein by reference as EX. A, along with Defendant’s request for the court to take judicial notice of same. See declaration of Michael H. Porrazzo in support of Request to Take Judicial Notice. Pratt arose on a 12b6 Motion to Dismiss. Plaintiff brought claims for employment discrimination under Title VII. Defendant Chenga, moved to dismiss since, as an “Indian Tribe” it did not meet the definition of “employer” under 42 U.S.C.A. §2000e(b), the same statutory framework as in FEHA’s discrimination analysis for religious corporations. Chenega had adopted an employee handbook containing anti-discrimination policies. Pratt argued that the adoption of these policies operated as a waiver of Chenga’s Title exemption. Not so, said the Court; “As a final matter, Pratt argues that even if Chenega is exempt from Title VII Chenega waived this exemption because its employee handbook contains an “Equal Employment Opportunity Statement” pledging its commitment to equality in The workplace and adherence to “applicable” discrimination laws. (Opp., Ex. 1.) The Court finds that Chenega did not waive its exemption. In Duke v. Absentee Shawnee Tribe, 199 F. 3d 1123, 1125 (10™ Cir. 1999), plaintiff employee argued that defendant had made a sovereign choice to subject [itself] to all state and federal laws.’ The court held that it was ‘reluctant to impute such an intent” without an express Declaration.” Id. At 1126.” © 00 ~N oO a A W N = nN nN N N nN - - - - - w k - - - - Numerous other jurisdictions follow suit in this holding that one who is statutorily exempt from the definition of “employer” under Title VII cannot waive that protection. In Hall v. Baptist Men’s Health Corp. 215 F. 3d 618 (6™ Cir. 2000) the court found that a religious organization also cannot waive a constitutionally protected exemption. Hall stated succinctly: “...statutory exemptions from religious discrimination claims under Title VII cannot be waived by either party. The exemptions reflect a decision by Congress that religious organizations have a constitutional right to be free from government intervention. Id. Once Congress stated that ‘this title shall not apply’ to religious-motivated employment decisions by religious organizations, neither party could expand the statute’s scope.” See also Duke v. Absentee Shawnee Tribe 199 F. 3d 1123, 1125 (10™ Cir. 1999) Little v. Wuerl 929 F. 2d 944, 951 (3d Cir. 1991); Siegl v. Truett- McConnel College, Inc., 13 F. Supp. 2d 1335 (N.D. Ga 1994); WARD V. Hengle 124 Ohio App. 3d 396, 400, 706 N.E. 2d 392). Egan v. Hamline United Methodist Church, 679 N.W. 2d 350, 358 (Minn. Ct. App. 2004). Garcia v. Salvation Army, USDC Az. Dist. No. CV-02225-PHX-DGC (2016). D. MAYNES WAS AN “AT-WILL” EMPLOYEE; DEFENDANT HAS OFFERED EVIDENCE THAT MAYNES EMPLOYMENT WAS TERMINATED FOR NON- DISCRIMINATORY REASONS; AT SUMMARY JUDGMENT, THE BURDEN SHIFTS TO PLAINTIFF TO OFFER EVIDENCE OF SUBSTANTIAL AND DETRIMENTAL DISCRIMINATION; PLAINTIFF OFFERS NO SUCH EVIDENCE ANS AS SUCH, THIS MOTION MUST BE GRANTED Plaintiff was an “at-will” employee of Defendant, WESTERN CHRISTIAN SCHOOL (“WCS”) pursuant to a written acknowledgment of “at-will” status signed by MAYNES at the commencement of his employment with WCS. Plaintiff in this lawsuit claims racial and other discrimination under Govt. Code §12940(a) in an effort to overcome Labor Code §2922 which permits the termination of “at-will” employment at any time, for any reason, with or without notice. To be actionable under Gow. Code Section 12940(a), the adverse treatment must be both “substantial and detrimental”, and “reasonably likely to impair a reasonable employee’s job performance or prospects for advancement...” as distinguished from minor or relatively trivial actions that are likely to do no more than displease. Horsford v. Board of Trustees of Calif. State ww OO ~N oo Oo Hh Ww NN = N N DN DND N DN D N D N 2 2 OQ OQ aS @O SS =a o a = Univ., supra, 132 Cal. App. 4™ at 374, See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. App. 4" at 1028, 1049. | - But here, Plaintiff submits not one scintilla of evidence supporting any claim for discrimination. None. Instead, Plaintiff submits a Separate Statement of 17 Disputed Material Facts and Additional 24 Material Facts that make various comments about Western Christian School’s policies, procedures, corporate status and religious bona fides, but not one fact supporting racial or other discrimination. Not one. | In it’s moving papers, Defendant provided the declaration of Shauna Attwood, Western Christian School’s Human Resources Generalist at the time of Plaintiff’s termination of employment, that Plaintiff’s Employment was terminated because of numerous complaints received concerning Plaintiff’s poor attitude, rudeness to parents and staff, and refusal to cooperate in the performance of his overall duties, and genuine fear he spread throughout the teaching and administrative staff around WCS. Attwood Decl., paragraphs 9-18. Plaintiff’s object to this only on hearsay, etc., grounds without offering any evidence of the required “substantial and detrimental” racial or other discrimination necessary to satisfy the burden-shifting responsibility on summary judgment. | This evidesitiany omission on plaintiff’s part is fatal to this case: Plaintiff has no evidence, and thus produces no evidence whatsoever of racial or other discrimination in this case, despite this case having been filed 4 years ago, taking 5 depositions of Western employees including the Superintendent, Plaintiff’s direct Supervisor, the Human Resources Generalist, the CFO and COO, the Principal, and another witness, and taking two side trips to the Court of Appeals and the United States District Court. Plaintiff submits hundreds and hundreds of pages of paperwork, yet not one reference in Plaintiffs “evidence” or separate statements that even mentions, let alone raises a material fact of any form of discrimination. Plaintiff’s sole arguments in opposition are that defendant is not a religious organization, and that FEHA does not apply to this case. Plaintiff does not even attempt to meet any burden, let alone “substantial or detrimental proof” that he was discriminated against because of race or disability. © © 00 ~N OO Oo A O N = C N N O N ND DN =a a a a mS a = aS aa = B N E H R V R N R R S E © J a a r r o n a That is because there is no racial discrimination in this case, and never has been. Plaintiff admitted this in his deposition: Q: Did anyone at Western make any comment to you at any time, that you took as racist? A: No. Did you ever complain to anyone at Western Christian about anyone making any kind of racist comment to you? A: No. Deposition of Plaintiff, taken December 16, 2018, at 101:21-102:2, attached to Declaration of Michael H. Porrazzo as EX B. | In a discrimination action, a defendant seeking summary judgment has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse action was based upon legitimate, non-discriminatory reasons. The employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing. Featherstone v. Southern California Permanente medical Group (App. 2 Dist. 2017) 2014 Cal. Rptr. 3d 258. By presenting such evidence, the employer shifts the burden to the plaintiff to present evidence that the employer’s decision was motivated, at least in part, by prohibited discrimination. If the employer shifts the burden on the employer’s summary judgment motion on the employee’s discrimination cause of action, the employee’s evidence must be sufficient to support a reasonable inference that discrimination was a substantial motivating factor in the decision, and the stronger the employer’s showing of legitimate, nondiscriminatory reasons, the stronger the employee’s evidence must be in order to create a reasonable inference of discriminatory motive. Although an employee’s evidence is construed liberally, it remains subject to careful scrutiny. And the employee’s subjective belief in an employment discrimination case does not create a genuine issue of material fact on the employer’s motion for summary judgment, nor do uncorroborated and self-serving declarations. © 00 ~N OO O r A O N = N O N RN N N ND DN NM N N = = = o d = = md = = =a 0 ~N O O O r A W O N = ) O O OW 00 N O OU O A L N = O° Maynes never complained about discrimination of any kind during his employment at Western Christian School. Never. And plaintiff provides no evidence to the contrary. Under section 12940(n), it is separately actionable for an employer to engage in a timely, good faith, interactive process with the employee - to determine effective reasonable accommodations. Both the employer and the employee are responsible for participating in the interactive process. Typically, the employee must initiate the process “unless the disability and resulting limitations are alwioys Scotch v. Art Institute of California, 173 Cal. App. 4" ap. 1013 (2009). Where, however, an employee fails to engage in any interactive process, or even bring a request for reasonable accommodation to the employer, summary judgment is appropriate as a matter of law. Featherstone v. Southern California Permanente Medical Group, 10 Cal. App. 5" 1150. | Plaintiff here claims disability discrimination, but provides no evidence that he was terminated because of any alleged disability, or that he asked for, but was refused, reasonable accommodation. Plaintiff thus never initiated, nor engaged, the required interactive process, and summary judgment is therefore appropriate as a matter of law. Plaintiff was an “at-will” employee > and offers nothing by way of evidence or law to bear the shifted burden of proof required to sustain his discrimination claims. VI. CONCLUSION There is no case here. Summary Judgment is pO since: Western Christian Schools is a religious corporation, exempt from FEHA; Plaintiff was an at-will employee, and has not produced any evidence of discrimination. Date: 2/287] g THE PORRAZZO LAW FIRM Michael H. Pomezegi 1.) ” Attorney for Defendafits] WESTERN CHRISTIAN SCHOOL. SHAUNA ATTWOOD, MICHELLE BROWNING and GREG SAUGSTAD 10
