Plaintiffs_supplemental_brief_in_opposition_to_defendant_huddles_motion_for_summary_adjudication_of_plaintiffs_fourth_and_seventh_causes_of_action_for_retaliationBriefCal. Super. - 1st Dist.April 28, 2017N o e x 1 S y L h Bs WW N Y ee P B B O O B Y B S b Y B Y B D e e t m d e d md pe ed fe ed e e d pe d pe ed pe d o o ~~ O N nr B W BN e s O N D 0 3 O h W n Bs L r DN e s OD THOMAS MARC LITTON, ESQ. (Cal. Bar No. 119985) LAW OFFICES OF THOMAS MARC LITTON 1388 Sutter Street, Suite 605 San Francisco, California 94109 Telephone: (415) 421-4770 Facsimile: (413) 421-4784 Attorneys for Plaintiff, BRENDA GISI ELECTRONICALLY FILED Superior Court of California, County of San Francisco 08/13/2018 Clerk of the Court BY:KALENE APOLONIO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION BRENDA GISI, ) CASE NO.: CGC-17-558463 ) -_ ) PLAINTIFF'S SUPPLEMENTAL Plaintiff, ) BRIEF IN OPPOSITION TO v. ) DEFENDANT HUDDLE’S MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFF'S FOURTH AND HUDDLE, INC., and DOES 1 to 20, ) SEVENTH CAUSES OF ACTION inclusive and each of them, ) FORRETALIATION : Date: September 5, 2018 Defendants. ) Time: 9:30 a.m. en Dept.: 302 Hon. Harold E. Kahn Trial Date: October 22, 2018 Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Ea s 2 bo wh O N D 0 ~~ OY TABLE OF CONTENTS L INTRODUCTION . Looe tienen 1 IL SUMMARY OF RELEVANT FACTS 2 HI, ARGUMENT. ..... iv: cn fididnnbdid diss dds id is 0 4BME 94am ETE7 ww 5 A. Circumstantial Evidence Supports Plaintiffs Claim that Roberts had Knowledge of Plaintiff's October 2015 Complaint to Huddle’s “Head of AIRY... oes ss nnnsas hs snasns aanumsssstesassmsssss n o 5 B. The Doctrine of Imputed Knowledge Applies in this Case and Provides the Requisite Causal Link Necessary to Establish Plaintiff’s Claims of Retaliation... .............. oon. 7 Ce Summary Adjudication of Plaintiffs Retaliation Causes of Action Should be Denied Pursuant to California Code of Civil Procedure Section 437c subd, (€) . «oii eigen rsa 10 IV. CONCLUSION Lite ee ee eee eee cae 11 ee Plaintiff's Supp. Brief in Opp to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs ~~ Page |i O N D se N y W n es Ww DY ee P D O R S O R I B I B I OD N BR ) B Y B D me me s ee t be e e k pe ek ee d be d ee k ee So ~ I N h Wb s Ww e D W ~ N a n n d s e TABLE OF AUTHORITIES Statutes California Code of Civil Procedure Sec. 437¢ . oii eee Cases Brooks v. City of San Mateo (9 Cir. 2000) 229 F.3d 917... ove an, Diego v. Pilgrim United Church of Christ (2014) 231 Cal. App4™ 913 ............. Donlon v. Group Health Inc. (S.D.N.Y. 2001) 2001 U.S. Dist. LEXIS 1001 ........ Fair Employment and Housing Com. V. Gemini Aluminum Corp. (2004) 122 Cal App.4f 1004 ©. ooo Flait v. North American Watch Corp. (1992) 3 Cal. App.4™ 467 ........o.ooi... Guy Wysinger v. Automobile Club of So. Cal. (2007) 157 Cal. App.4™ 413 .......... Haas v. Kelly Servs., Inc. (8 Cir. 2005) 409 F.3d 1030... o.oo iiiiannts Hernandez v. SpacelLabs Med., Inc. (9" Cir, 2003) 343 F.3d 1107. ................ Jones v. Bernanke (D.C. Cir. 2009) S57 F.3d 670... ooo Lamb v. Household Credit Servs. (N.D.Cal. 1997) 956 F.Supp. 1511 .............. Medina v. Ramsey Steel Co. (5% Cir. 2001) 238 F.3d 674... o.oo nn, Meighan v. Shore (1995) 34 Cal App4™ 1025... ooo Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4" 95... oii. Scotch v. Art Institute of California (2009) 173 Cal. App4" 986 .................. Swinton v. Potomac Corp. (9 Cir. 2001) 270 F.3d 794... oon Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal. App.4" 1216... Trustees of Cal. State University v. Public Employment Relations Bd. (1992) 6 Cal App dM 1107 . ooo Villiarimo v. Aloha Island Air, Inc., (9" Cir. 2002) 281 F.3d 1054... ............. Yanowitz v. L'Oreal (2005) 36 Cal4® 1028... oii EE 3 ee) Plaintiff's Supp. Brief in Opp to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs 1.6 10 7.9 Page ii O o o 1 O v La ds L a B D ee Jo mo ee d pe ed h e d de ed ee k e d pe ek ee k fe ed D o e 3 O y w n de WW D D ee s DD I INTRODUCTION This lawsuit is brought by Plaintiff Brenda Gisi (“Plaintiff”) against her former employer, Defendant Huddle, Inc. (“Huddle”). Plaintiff alleges multiple causes of action arising out of Huddle’s termination of Plaintiff’s employment on November 9, 2015. Huddle filed a motion for summary judgment and an alternative motion for summary, adjudication. The motion was heard on July 26, 2018. In its tentative order, this Court denied summary judgment and the alternative motion for summary adjudication as to Plaintiff's third, fifth, sixth, and eighth causes of action for age discrimination, failure to prevent discrimination, and violation of the UCL and granted the motion as to the fourth and to the seventh causes of action for retaliation. Plaintiff contested the tentative ruling with respect fourth and seventh causes of action for retaliation. Huddle did not contest the tentative. This Court’s tentative order states that Huddle was entitled to summary adjudication o the retaliation claims because undisputed evidence shows there was no causal connection) between Plaintiff's protected activity and her termination. Specifically, this Court determined that Mr. Roberts, Plaintiff's manager, was not aware that Plaintiff had complained about his discriminatory treatment of Plaintiff and the older employees and Mr. Roberts made the decision to terminate Ms. Gisi's employment before Huddle received Ms. Gisi's email complaining of age discrimination. At the July 26 hearing, Plaintiffs counsel pointed out that Huddle’s argument based upon Mr. Roberts’ asserted ignorance of Plaintiff's complaint was first asserted in Huddle’s reply brief and therefore had not been addressed in Plaintiffs opposition. He then raised three arguments: First, there is circumstantial evidence that Mr, Roberts knew about Plaintiff’s October 2015 disparate treatment complaint to Huddle’s Director of Human Resources before he decided t terminate Plaintiff. Second, the doctrine of imputed knowledge applies to this case because Plaintiff made her complaint about Mr. Roberts” disparate treatment (a) before Mr. Roberts decided to terminate Plaintiff and (b) directly to Melina Murray, Huddle’s “Head of HR,” who was in charge of processing and informing Plaintiff of her termination from Huddle. Third, California Code of Civil Procedure § 437¢ subd. (e) permits this court to deny summary ETRE et pS Re I Re ri ia Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 1 to d O e a N Lh adjudication where, as in this case, the only evidence concerning Mr. Roberts’ knowledge of Plaintiff’s complaint is his declaration denying knowledge of Plaintiff's complaint. At the July 26, 2018 hearing, this Court requested that the parties meet and confer over a briefing schedule and return for additional hearing on September 5, 2018 to address the retaliation causal connection issues. For the reasons set forth below, Plaintiff submits that she is entitled to a jury trial on hey fourth and seventh causes of action for retaliation. IL. SUMMARY OF RELEVANT FACTS Huddle hired Mr. Roberts as Vice President of Sales on July 27, 2015. (Roberts’ Declaration in Support of Summary Judgment (“Roberts Decl”), pg. 1:21-22.) During his employment at Huddle, Mr. Roberts reported to Morten Brogger. (Roberts Decl. pg.1:24-25.) Ad the time Mr. Roberts was hired, Huddle’s three older sales employees were John Brown (age 47), John Gwaltney (age 46) and Brenda Gisi. (Melina Murray Deposition! (“Murray Depo.”), pgs. 161:23-163:25.) Plaintiff was the oldest. (/d) Mr. Roberts terminated Mr. Brown and Mr, Gwaltney on October 1, 2015. (Dave Roberts Deposition (“Roberts Depo.”) pgs. 70:5-10; 76:20 78:25.) Mr. Roberts consulted with Ms. Murray before terminating all three employees. (/d.) Contrary to the way he treated Mr. Brown, Mr. Gwaltney and Plaintiff, Mr. Roberts treated younger employees with deference. (Gisi Depo, pgs. 116:24-120:21;147:3-148:124 Herrington Decl. pg. 2:9-13.) With respect to Plaintiff, Roberts: (1) failed to give Plaintiff feedback on her work, yet openly criticized her in front of her younger peers; (2) was dismissive of Plaintiff’s input while deferring to younger, less experienced support staff; (3) physically] turned his back on Plaintiff after asking her to provide feedback and interrupted her response tc gather information from a younger employee who did not have expertise that Plaintiff was attempting to provide; (4) unreasonably criticized Plaintiff for not attending meetings to which she had not been invited; (5) was aggressive towards Plaintiff when communicating with Plaintiff unlike the manner in which he communicated to younger employees of Huddle, thereby] ' The cited portions of the depositions are attached to the Declaration of Thomas Marc Litton in Support of Plaintiff's Supplemental Brief in Opposition to Summary Adjudication of Plaintiff's Fourth and Seventh Causes of Action for Retaliation. SE SRP Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 2 rr ds W d ba N o o w d O N undermining Plaintiff’s credibility with the younger employees with whom Plaintiff was required to work to successfully perform her job; (6) unreasonably took accounts away from Plaintiff that Plaintiff needed to reach her sales goals and gave them to younger less-experienced employees; (7) gave Plaintiff conflicting information about Plaintiff's job responsibilities; (8) was dismissive of Plaintiff in front of clients, undermining Plaintiff's performance with clients; (9) allowed the younger customer service team members to take credit for Plaintifl”s work: (10) allowed other younger employees to have authority over Plaintiffs designated roles; and (11) ignored Plaintiff’s concerns about certain accounts and contractual terms affecting Huddle’s liabilities. (Gisi Depo, pgs. 116:24-120:21;147:3-148:12.) Sometime in early to mid-October 2015,% Plaintiff complained directly to Ms. Melina Murray, Huddle’s Head of HR, about Mr. Roberts’ disparate treatment during a twenty to twenty-five-minute meeting. (Gisi Depo, pgs. 158:9-161:24; Murray Depo, pgs. 79:21-80:2] 81:22-88:4.) Plaintiff testified that she told Ms. Murray that Roberts: (1) from his first meeting] with Plaintiff had targeted Plaintiff and the other older co-workers (Gisi Depo, pgs. 160:124 161:14.); (2) was undermining Plaintiff's ability to do her job; and (3) was singling out Plaintif] with his mistreatment “compared to other younger employees.” (Gisi Depo, pgs. 147:12-148:4; 159:3-8.) Ms. Murray testified that she had a vague memory of the conversation with Plaintiff. (Murray Depo. 79:21-23.) She recalled that Plaintiff had advised her that Mr. Roberts criticized her in front of others and had been constantly changing Plaintiff's roles. (Murray Depo. pgs. 79:21-80:2; 81:22-88:4.) During her conversation with Plaintiff, Ms. Murray suggested that Plaintiff speak directly to Mr. Roberts, but Plaintiff declined because she was worried about retaliation. (Gisi Depo, pg.159:3-16.) Ms. Murray testified that she was concerned about the matters Plaintiff raised about Mr. Roberts, that the “relationship needed to be addressed [and] that [she] could facilitate,” ? Plaintiff testified that her discussion with Ms. Murray occurred “around the time Jon Gwaltney and John Brown were let go. I can’t remember if it was before or after; around that time.” (Gisi Depo. pgs.158:3-159:2.) Therefore, around October 1, 2015. Ms. Murray testified that she could not remember when the meeting occurred, but that it was “[t]he period before November 6th.” Later she testified that “within two weeks [of Plaintiff's November 6 complaint] is fair.” (Murray Depo. pgs. 79:24-25; 81: 22-82: 2.) EA SEs Sees Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 3 NO o e 1 O v Lt d a W B e s ot << 11 but she could not remember what, if anything, she had done. (Murray Depo. pg. 86:11-23.) Ms. Murray also testified that she could not recall whether she told Mr. Roberts about hex conversation with Plaintiff. (Murray Depo pgs. 83:21-84:4.) When asked if Ms. Murray had handled Plaintiff's complaints any different than another’s employee’s complaint, Ms. Murray responded: “Absolutely not.” Then, Ms. Murray admitted that she would have offered Plaintiff assistance by talking to Mr. Roberts or getting Mr. Roberts involved. (Murray Depo. Pgs. 86:24-87:18.) In his deposition, Mr. Roberts testified that after Mr, Brown and Mr. Gwaltney were terminated on October 1, 2015, he did not expect to terminate Plaintiff, because he believed that Plaintiff was working and “would be successful.” (Roberts Depo. pgs. 106:14-107:8.) However, just after the time Plaintiff met with Ms. Murray in early October, Mr. Roberts abruptly changed his mind and decided to terminate Plaintiff's employment. Mr. Roberts testified that he could not remember any specific event that triggered his change of mind. Rather, he testified: it was “more of a designation of performance and cooperation of how she communicated with others,” whatever that meant. (/d. at 107: 3-8.) On November 6, 2015, at approximately 5:45 p.m., Plaintiff sent an email to Ms. Murray. (Gist Depo, pgs. 139:6-140:17, including Depo Exhibit 7.) In the email, Plaintiff again complained about Mr. Roberts. This time she spelled out in no uncertain terms that she believed she was as victim of age discrimination and requested immediate action because she was concerned that Mr. Roberts would retaliate against her, (Jd.) Ms. Murray testified that she received the email on November 6, 2015. (Murray Depo, pg. 94:23-95:11, including Depo exhibit 6.) Ms. Murray informed Mr. Roberts of the email over the weekend between November 6 and November 9. (Id. at 99:12-20.) She did not contac Plaintiff. (Id. at 100:1-9.) Ms. Murray’s first contact with Plaintiff about her November 6 email was on Monday, November 9, 2015, during Plaintiff’s termination meeting. (/d. at 100:10-21.) Plaintiff was terminated on November 9, 2015, when she was brought into a Huddle meeting with Ms. Murray and Mr. John Quarles, Huddle’s CFO, and handed a letter of termination, written and signed by Ms. Murray, as “Head of HR.” (Murray Depo, pgs.101:5-18, EEE En Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 4 hn E= N Ld Io D e e ~~ including Depo Exhibit 7; 108:4-110:24.) The termination letter clearly states: “This letter serves to confirm your employment with Huddle, Inc. has been terminated, effective Novemben 9, 2015.” (Murray Depo. Exhibit 7.) In ARGUMENT A. Circumstantial Evidence Supports Plaintiffs Claim that Roberts had Knowledge of Plaintiff's October 2015 Complaint to Huddle’s “Head of HR” Close temporal proximity between an employee's protected activity and the adverse action taken against the employee plus circumstantial evidence of the employer's knowledge of the employee's protected activity will establish the requisite causal link supporting a valid retaliation claim. (See, Diego v. Pilgrim United Church of Christ (2014) 231 Cal. App.4th 913 930-932; Flair v. North American Watch Corp. (1992) 3 Cal. App. 4th 467, 479-480; Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023- 1024.) Employee complaints to management about discriminatory employment practices constitute protected activity prohibiting retaliation. (Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal. App.4th at 1018.) Here, Plaintiffs initial complain about Mr. Roberts’ treatment was to Melina Murray, Huddle’s “Head of HR.” (Murray Depo. pgs. 21:13-22:20.) Ms. Murray testified that “[a]t Huddle [she] was responsible for human) resources in the United States. . .” (Jd) Approximately one year after Ms. Murray joined Huddle in 2013, Ms. Murray's title changed from Human Resources Manager to “Head of HR,” which she retained throughout the time she was employed at Huddle. (/d.) Close temporal proximity between the employee’s protected activity and the adverse employment action constitutes “strong evidence of a retaliatory motive." (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235; Haas v. Kelly Servs., Inc., (8th Cir. 2005) 409 F.3d 1030, 1037, reversing summary judgment based upon the temporal proximity between the employee’s complaint of age discrimination on February 8 and her termination on February 25; Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1065, determining that "in some cases, causation can be inferred from timing alone where an Pe SR Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 5 ba N I O o 8 w= O n in bs 10 11 12 13 14 16 17 18 19 20 adverse employment action follows on the heels of protected activity." See also Scotch v. Arf Institute of California (2009) 173 Cal. App.4th 986, 1020-1021, the fact that the plaintiff suffered an adverse employment action only weeks after the protected activity was “sufficient to make 4 prima facie showing of causation.”)? In this case, the temporal proximity between Plaintiffs complaint to Ms. Murray in early to mid-October 2015 and Plaintiff’s termination on November 9, 2015 is certainly close. It wag significantly closer than the “few months” deemed sufficient in Flait v. North American Watch Corp., supra, 3 Cal. App.4th at 477-478. However, the temporal proximity between Plaintiff’ protected activity and Roberts” decision to terminate Plaintiff was even closer; Roberts’ abrupt decision to terminate Plaintiff followed on the heels of Plaintiff”s protected activity. Furthermore, circumstantial evidence indicates that Mr. Roberts did know about Plaintiff’s early October complaint to Murray. First, Mr. Roberts’ about-face, from concluding that Plaintiff could be successful in early October and therefore was not to be terminated with Mr. Brown and Mr. Gawaltney on October 1, 2013, to deciding to terminate Plaintiff occurred just after Plaintiff met with Ms. Murray to complain of disparate treatment. It is important to underscore that Ms. Murray did not deny that she informed Mr. Roberts of her meeting with Plaintiff, Rather, Ms. Murray could not remember whether she told Mr. Roberts about her meeting. Additionally, she testified that she felt that Plaintiff's complaints needed to be addressed. She also testified that she did not believe she handled Plaintiff's complaints any different than she would have treated any other employee’s complaints, and that her normal mode of handling employee complaints included raising the matter with the manage who is the subject of the complaint. Given Ms. Murray's explanation, there is a distinct possibility that Ms. Murray did inform Mr. Roberts about Plaintiff's October complaint. She certainly informed Mr. Roberts of Plaintiff's November 6 email complaint before Plaintiff was 3 In its summary judgment/ summary adjudication motion, Huddle’s arguments against Plaintiff’s retaliation causes of action rested entirely on its assertion that there was no prim facie showing of a causal link with respect to the retaliation issues and therefore no valid non retaliatory reason for Plaintiff's termination was proffered. (See Huddle’s opening brief, pgs. 14- 15; reply brief, pgs. 2-3.) Consequently, it unnecessary for Plaintiff to present evidence of pretext. (See, C.C.P. § 437¢(p)(2); Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028, 1042.) ee Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 6 [O T E E T o o o t s d O n terminated on November 9, 2015. (Murray Depo. pgs. 95:9-15; 97:23-99:22; Roberts Depo. pgs. 129:23-130:22.) Last, Mr. Roberts’ explanation for his sudden change of opinion about Plaintiff does no make sense. Plaintiff went from “could be successful” to needing to be terminated immediately, after Plaintiff’s October complaint, yet Mr. Roberts denied any specific trigger or event. Rather, he provided a vague response that it was more of a “designation of performance and cooperation of how she communicated with others,” (Roberts Depo. pg. 107:3-8.), which doesn’t make sense and conflicts directly with Huddle’s stated reasons for Plaintiffs termination. Therefore, substantial circumstantial evidence suggests Mr. Roberts actually did know about Plaintiffs complaints about his behavior to Ms, Murray and therefore summary adjudication of the retaliation causes of action should be denied. (See, e.g. Hernandez v. SpaceLabs Med, Inc. (9th Cir. 2003) 343 F.3d 1107, 1116, reversing summary judgment because although the decisionmaker averred that he was unaware of the protected activity, the circumstantial evidence was such that a jury could have inferred otherwise.) B. The Doctrine of Imputed Knowledge Applies in this Case and Provides the Requisite Causal Link Necessary to Establish Plaintiff’s Claims of Retaliation Under the doctrine of imputed knowledge, an employer will be charged with knowledge of an employee’s complaint if the employee who receives the complaint "has an official or strong de facto duty to act as a conduit to management for complaints about work conditions,” or is responsible for relaying complaints to the corporate hierarchy. (Lamb v. Household Credi Servs., (N.D.Cal.1997) 956 F.Supp.1511, 1517, Hon. Spencer Williams, presiding. )* In Lamb, Judge Williams identified two categories of employees who qualify ag management for these purposes. First, an employee is a member of management if she possesses “substantial authority and discretion to make decisions” concerning the terms of employment of either the complaining employee or the employee subject to the complaint, such as the "authority 4 The Lamb decision has been cited with approval with respect to the doctrine of imputed knowledge in Brooks v. City of San Mateo (9 Cir. 2000) 229 F.3d 917, 925-926, fin.6; and Swinton v. Potomac Corp. (9™ Cir. 2001) 270 F. 3d 794, 804-805. ey Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 7 M D oe s ~ 3 0 O n b n Ja le d b a p O M 3 b a 3 + 3 2 I J B O po d oa k j - [ o y ad Sm t Y h fo f t So o n ~n d [+ w n B= LI [ 8 ] n t < > O o n ~ J ON wh $a a b a bd = to counsel, investigate, suspend, or fire” the accused employee, or to change the conditions of the complaining employee's employment. Id. at 1517. Second, a supervisor who lacks such authority is nonetheless classified as "management" if she "has an official or strong de facto duty to act as a conduit to management for complaints about work conditions." 1d. Although the Lamb decision addressed the doctrine of imputed knowledge in the contexg of a Title VII claim of sexual harassment, the court in Guy Wysinger v. Automobile Club of So. Cal. (2007) 157 Cal.App.4th 413 applied the doctrine in upholding a jury verdict on an employment retaliation case. Specifically, against the employer's argument that the decisionmaker was not aware that the employee filed an age discrimination claim, and therefore could not have retaliated against the employee, the court, determined “a decision maker's ignorance does not ‘categorically shield the employer from liability if other substantial contributors to the decision bore the requisite animus. [Citation.] [and] [i]f he participated in the decision, jurors may infer animus.” (157 Cal. App.4th at 421.) Managers having both knowledge of the employee’s complaint and involvement in the complaining employee’s adversg employment action establish the requisite causal connection. Id. Therefore, “notwithstanding [the decisionmaker’s] alleged ignorance, ACSC [the employer] must have known [the complaining employee] made the EEOC claim.” (Id.) In Trustees of Cal. State University v. Public Employment Relations Bd. (1992) 6 Cal, App. 4th 1107, the court also found the requisite causal connection between the protected activity (providing testimony against the employer at a PERB hearing) and the adverse employment action over the employer's claim of a lack of causal connection, when the evidence supported a finding that the employer had either actual or imputed knowledge of the officer’s testimony and the proximity between the protected activity and the adverse action supported a reasonable inference of causation. The court noted: “[d]irect proof of motivation is rarely possible since motivation is a state of mind which may be known only to the actor. Unlawful motive can be established by circumstantial evidence and inferred from the record as a whole. To justify such an inference, the charging party must prove the employer had actual or imputed knowledge of the employee's protected activity.” (6 Cal. App. 4" at 1124, emphasis added.) Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 8 S o ~~ O N W n d e W d B d ee o d fe d p o d L T 12 20 21 22 23 24 23 26 27 28 In Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App.4th 95, the plaintiff had complained to his store manager about sexual harassment of other employees and was thereafter terminated. He brought a lawsuit under the FEHA, contending his termination had been inj retaliation for the sexual harassment complaints. On appeal from summary judgment for the employer, the court held that the district manager's ignorance of the plaintiff's protected activity] did not conclusively negate the element of causation, because others who were aware of the protected activity had also been involved in the termination. The court noted that "ignorance of a worker's protected activities or status does not afford a categorical defense unless it extends to all corporate actors who contributed materially to an adverse employment decision. [Citations.}'| (121 Cal. App.4th at p. 109.) In this case, the ranking manager at Huddle having the Lamb "authority to counsel, investigate, suspend, or fire” and had a significant role in Plaintiff's termination certainly) included Ms. Melina Murray. As Huddle’s “Head of HR” for the United States, it is hard to find a more qualified senior manager at Huddle in charge of counselling, investigating and or terminating employees based upon claims of discrimination. Without doubt Ms. Murray was the also the highest-ranking manager of Huddle’s human resources department charged with processing and conducting Plaintiff's termination on December 9, 2015. (Murray Depo. pgs, 21:13-22:20.) Further, Ms. Murry was acutely aware of Plaintiffs October 2015 disparate treatment complaints about Mr. Roberts, before Mr. Roberts decided to terminate Plaintiff, and felt Plaintiff's complaints needed to be addressed, but she could not recall what, if anything she did to address the problems. Further still, Mr. Roberts consulted with Ms. Murray before terminating Plaintiff. (Roberts Depo. pgs. 76:20-77:22.) By reason of her unique senion management position at Huddle, and her knowledge of Plaintiff's October complaints about Mr. Roberts, Ms. Murray was the ideal manger to impute knowledge to Huddle of Plaintiff's protected activity for purposes of satisfying the requisite element of causation with respect t Plaintiff's two retaliation causes of action. A number of cases impute the requisite knowledge to the employer in retaliation cases not unlike this case. (See, e.g. Medina v. Ramsey Steel Co. (5 Cir. 2001) 238 F.3d 674, 684, 4 Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 9 M D G 3 O h Wi nn B s L o B O ee s b a N a J b a P a I ra a M a ok eh mk ot po n [u - fo nt yt pa t yh oo ~J on t n E N ad 3 me t oo Se o 0 ~~ hy wh E a Ld ba re < discharged employee satisfied causal link requirements of a prima facie case of retaliation by demonstrating that the official who terminated the employee was the same official who sent the employer’s response to the state agency investigating the employee’s charge of age discrimination; Donlon v. Group Health Inc. (S.DN.Y. 2001) 2001 U.S. Dist. LEXIS 1001] 1007, the requisite employer knowledge was established when the employer responded to the employee’s complaint which had been submitted to the employer’s human resources department; and Jones v. Bernanke (D.C. Cir. 2009) 557 F.3d. 670, 679, to survive summary judgment, the plaintiff was not required to provide direct evidence that the supervisors who allegedly retaliated against him knew of his protected activity. Evidence that some of the employer's agents although not the actual supervisors who took the adverse action, were aware of the protected activity and that the adverse employment action took place shortly after the protected activity] raised a triable issue of fact as to the causal link between the protected activity and the adverse employment action.) C. Summary Adjudication of Plaintiff’s Retaliation Causes of Action Should be Denied Pursuant to California Code of Civil Procedure Section 437¢ subd. (e) C.C.P. § 437c(e) provides in pertinent part that "summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who is the sole witness to that fact; or if 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.” Here, because Ms. Murray cannot remember whether she told Mr. Roberts about Plaintiffs October 2015 complaint, the only evidence as to whether Mr. Roberts had prio knowledge of Plaintiff's October complaints about Mr. Roberts’ conduct is Mr. Roberts’ self serving declaration, crafted after Ms. Murray’s deposition testimony. Yet, there is certainly significant circumstantial evidence that Mr. Roberts did have knowledge of Plaintiff's complaints: (1) Mr. Roberts abruptly changed his mind and decided to terminate Plaintiff “on the heels” of Plaintiff's complaint to Ms. Murray; (2) Ms. Murray does Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 10 + 2 [SS ] LA D e e 1 O n not deny she told Mr. Roberts about Plaintiff's complaints, she just cannot remember whether she told him; (3) Ms. Murray did not feel she treated Plaintiff differently than other employees and what Plaintiff expressed required her attention and her usual method of dealing with such an employee matter involved getting the manager involved in the matter; and (4) Mr. Roberts, whilg denying any specific trigger that changed his mind about terminating Plaintiff, could not provide an understandable explanation for his sudden change of mind in favor of termination. Therefore, in light of the circumstantial evidence that Mr. Roberts did have knowledge of Plaintiff’s October complaint to Ms. Murray, Plaintiff submits that this Court should decline to grant summary adjudication of Plaintiffs’ retaliation claims on the basis of Mr. Roberts’ declaration pursuant to C.C.P. § 437c(e). (See, e.g., Meighan v. Shore (1995) 34 Cal. App.4th 1025, 1046.) IV. CONCLUSION For all the foregoing reasons, Huddle’s motion for summary adjudication of Plaintiffs fourth and seventh causes of action must be denied. Dated: August 10, 2018 / i Thomas Marc I4tton.. Attbmey. Foi Plaintiff, Brenda Gisi a Fc dH ES EE Plaintiff's Supp. Brief in Opp. to Mot. for Sum. Adj. of Plaintiff's Retaliation COFAs Page 11 ro La d te w o n PROOF OF SERVICE I, the undersigned, declare as follows: I am employed in the City and County of San Francisco, State of California; 1 am over the age of eighteen years and not a party to the within entitled action; my business address is:1388 Sutter Street, Suite 605, San Francisco, CA. On the date indicated below, I caused to be served the following document(s): Plaintiffs Supplemental Brief in Opposition to Defendant Huddle’s Motion for Summary Adjudication of Plaintiff's Fourth and Seventh Causes of Action for Retaliation on the attorneys, parties and / or individuals named below, and addressed as follows: FOR DEFENDANT HUDDLE, INC.: | Michael D. Bruno, Esq. mbruno@grsm.com Allison B. Hernandez, Esq. abhernandez@grsm.com | Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 (XX) BY MAIL: I placed said documents in a sealed envelope, with said postage thereon fully prepaid for first class mail, for collection and mailing at San Francisco, California, following ordinary business practices. I am readily familiar with the practice of this law office for the processing of correspondence, said practice being that in the ordinary course of business, correspondence is deposited with the United States Postal Service the same day as it is placed for processing. ) BY FACSIMILE: I caused the said document(s) to be transmitted by facsimile machine to the number indicated after the address noted above. () BYFEDERAL EXPRESS:I placed a true and correct copy thereof in a Federal Express(overnight) envelope addressed to the individual named above at the address shown, and by sealing and delivering the aforementioned documents to the Federal Express Drop Box at 1388 Sutter Street, San Francisco, California to be delivered by next day, on this date. (XX) BY EMAIL: I caused the said document(s) to be transmitted by internet mail to the email address indicated above for the attorney representing Defendant. () BY PERSONAL SERVICE: 1 caused a copy of the said documents to be personally served on the attorney’s office representing Defendant by delivering the copy at the aforementioned address by messenger service on the date indicated below. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on August 13, 2018 in San Francisco, California. Proof of Service
