Filed 7/5/13 Mack v. City of Hawthorne CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MARJORIE MACK et al., B238094
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC433745)
v.
CITY OF HAWTHORNE et al.,
Defendants and Respondents.
APPEAL from orders and a judgment of the Superior Court of Los Angeles
County, Elizabeth Allen White, Judge. Affirmed.
Law Offices of David Peter Cwiklo and David Peter Cwiklo, for Plaintiffs and
Appellants.
Liebert Cassidy Whitmore, Jeffrey C. Freedman and Meredith G. Karasch, for
Defendants and Respondents.
I. INTRODUCTION
Plaintiffs, Marjorie Mack and Shannon-Joy Gossett, appeal from the trial court‘s
orders and judgment in favor of defendant City of Hawthorne (the city). They argue it
was error to grant the city‘s motion for summary adjudication of their race and gender
discrimination claims. Plaintiffs also contend the trial court erred in granting the city‘s
nonsuit motion on the retaliation claim. In addition, plaintiffs challenge the trial court‘s
evidentiary rulings before and during trial. We affirm the orders and judgment.
II. BACKGROUND
A. First Amended Complaint
Plaintiffs sued the city, Jag Pathirana, Robert O‘Brien, Hamid Pournamdari, Larry
Guido, and Steven Romero asserting claims for: retaliation, racial, gender and disability
discrimination; hostile work environment, racial, gender, disability harassment; and
intentional infliction of emotional distress. Plaintiffs were African American female
employees of the city‘s housing department. Ms. Mack was a housing specialist. Ms.
Gossett was a Section 8 housing inspector.
Plaintiffs alleged the city discriminated against two other African American
female employees, Cheryl Williams and Rose McKinney. At her April 16, 2008
deposition, Ms. McKinney identified Ms. Gossett as an eyewitness to the city‘s racial
discrimination and retaliation against African American females. In June 2008, the city,
through fraud investigator Roberto Chavez, began investigating plaintiffs for fraud and
misconduct. On March 17, 2009 criminal charges were filed against plaintiffs for
fraudulently filing a forged Section 8 housing list and subsidiary vouchers. On March 26,
2009, the city notified plaintiffs they would be placed on unpaid leave because the
―charges relate to the core functions of [their] employment.‖ Plaintiffs claimed the
investigation and constructive termination were based on racial, gender and disability
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discrimination. They also alleged the city retaliated against them because they were
identified as witnesses in the McKinney case.
The individual defendants were later dismissed. The only remaining defendant
was the city. Plaintiffs‘ remaining claims were for retaliation, racial, gender, and
disability discrimination, and harassment.
B. City‘s Motion for Summary Adjudication
On June 16, 2011, the city filed a motion for summary adjudication on the
retaliation, race, gender, and disability discrimination, and harassment claims. The city
argued plaintiffs failed to establish a causal connection between a protected activity and
the adverse employment action. Also, the city contended there was no causal connection
between plaintiffs‘ race, disability or gender and the city‘s investigation and suspension.
The city argued it had a legitimate non-discriminatory reason to investigate plaintiffs and
place them on administrative leave. The city argued: Mr. Chavez and Mr. Romero
investigated plaintiffs based on a complaint from Rene Mayorga, a member of the public,
and not by unlawful animus; the investigators determined plaintiffs manipulated the
Section 8 waiting list in an illegal conspiracy to mutually exchange subsidized housing
benefits; Ms. Mack was negligent in her job; and Ms. Gossett filed an inspection report
on a friend‘s apartment which she did not inspect. Furthermore, the district attorney‘s
office separately filed criminal charges against plaintiffs. Mr. Pathirana and Mr. O‘Brien
placed plaintiffs on administrative leave only after criminal charges were filed against
plaintiffs. The city argued the criminal charges filed against plaintiffs by the district
attorney‘s office showed plaintiffs‘ suspension was not arbitrary. In addition, the city
contended plaintiffs could not establish harassment because personnel decisions did not
constitute harassment.
In support of its summary adjudication motion, the city submitted the declaration
of Roberto Chavez. Mr. Chavez was the city‘s Section 8 housing fraud investigator from
mid-2007 until September 2010. On June 26, 2008, Mr. Chavez received a voicemail
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from Rene Mayorga who reported that his girlfriend was violating the rules for her
subsidized housing. Mr. Chavez telephoned Mr. Mayorga back the same day. Mr.
Mayorga stated ―Madric Mack‖ was accepting $500 gift cards in exchange for moving
clients up on the waiting list. Mr. Chavez reported his conversation with Mr. Mayorga to
Hawthorne Police Sergeant Steven Romero.
Mr. Chavez questioned Mr. Mayorga‘s motive so he conducted a further
investigation. Mr. Chavez reviewed the current waiting list for the Section 8 housing
vouchers and noticed Mr. Mayorga, his girlfriend, and members of his girlfriend‘s family
had all received Section 8 rent subsidy vouchers. They were all listed close together and
close to the top of the waiting list. Mr. Chavez believed the timing was suspicious
because they had applied in April 2007 and received benefits by November 2007. In Mr.
Chavez‘s experience, applicants typically waited for many years before receiving Section
8 housing benefits.
Mr. Chavez, his colleague, Guido Fernandez, and Sergeant Romero interviewed
Mr. Mayorga‘s girlfriend, Idalia Linares. Ms. Linares stated her aunt and apartment
manager, Carolina Hernandez, told her to give Ms. Mack a gift card and Ms. Mack would
―hook her up.‖ Ms. Linares stated Shannon Gossett knew what was going on and
inquired whether Ms. Linares had given a gift card to Ms. Mack. Ms. Hernandez told
Ms. Linares that Ms. Linares‘ mother, grandmother, and the assistant manager of the
apartment, Herlinda Gonzalez, were all giving Ms. Mack gift cards to get Section 8
housing benefits. Ms. Gonzalez, stated Ms. Hernandez told her ―Ms. Mack was going to
hook them up.‖ At the time Ms. Hernandez and her relatives applied for benefits, Ms.
Mack was in charge of the Section 8 housing eligibility list. Ms. Gossett assisted Ms.
Mack with the Section 8 housing list.
Ms. Mack admitted during an interview with Sergeant Romero and Mr. Chavez
that her daughter lived in an apartment complex managed by Ms. Hernandez that was
subsidized by the Southern California Housing Development Corporation. Ms.
Hernandez managed the waiting list for Southern California Housing Department
Corporation. Ms. Gossett admitted in an interview with Sergeant Romero and Mr.
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Chavez that she sent a rental application to Ms. Hernandez on behalf of her husband. She
sent the application on the city‘s fax cover sheet while conducting an inspection of Ms.
Hernandez‘s apartment building. Her husband was in a psychiatric ward at the time Ms.
Gossett submitted the application.
Mr. Chavez audited Ms. Mack‘s case files and found various discrepancies. In
particular, Mr. Chavez found discrepancies in Safiu Sanusi‘s file. Mr. Sanusi was the
brother-in-law of Peter Ojo, a former city housing specialist who was Ms. Mack‘s friend.
Mr. Sanusi failed to update his application by September 30, 2006 but he was not
removed from the Section 8 waiting list. Although Ms. Mack sent a letter notifying Mr.
Sanusi that he had been selected for Section 8 benefits on October 30, 2006, Mr. Sanusi
did not submit his application until October 31, 2006. Ms. Mack issued Mr. Sanusi a
voucher on November 2, 2006 without conducting the required background or credit
report check. Ms. Mack allegedly did not complete a background check on Mr. Sanusi
until after her meeting with Mr. Chavez and Mr. Pournamdari in January 2007.
At the time Mr. Sanusi received his voucher, he was number 408 on the Section 8
waiting list. Many other applicants who were ahead of Mr. Sanusi on the Section 8
waiting list were skipped over by Ms. Mack. One applicant, Sheryl Miller, applied for
section 8 benefits on January 30, 2004 and was number 29 on the September 13, 2006
waiting list. Ms. Miller received a December 8, 2006 letter from Ms. Mack notifying
her that she was number 76 on the waiting list. Ms. Mack informed Ms. Miller that she
likely would be on the waiting list for five years.
Mr. Chavez also investigated Ms. Gossett concerning her failure to inspect a
Section 8 apartment. An apartment owner, Jacqueline Kelly, reported Ms. Gossett did
not inspect the unit she owned before it was leased to Andrea Simpson, the sister of Ms.
Gossett‘s boyfriend. Also, Mr. Chavez found Ms. Simpson appeared number two on the
waiting list because plaintiff entered an incorrect application submission time into the
housing department‘s computer system.
Mr. Chavez discussed his investigation with Sergeant Romero, colleague Guido
Fernandez, and housing department head Hamid Pournamdari. Mr. Chavez kept city
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manager Jag Pathirana informed of the status of his investigation but did not share with
him the details of the investigation. He did not discuss the investigation with human
resources manager Robert O‘Brien. Once Mr. Chavez and Sergeant Romero had enough
evidence, they discussed the matter with Los Angeles County deputy district attorney
Renee Urman. Ms. Urman later filed criminal charges against plaintiffs. Mr. Chavez
was not aware of the McKinney lawsuit until well after his investigation of plaintiffs.
He did not know plaintiffs were listed as witnesses in the McKinney case or that they
attended Ms. Kinney‘s civil service commission hearing.
Besides Mr. Chavez‘s declaration, the city submitted a declaration from Police
Lieutenant Steven Romero. During the relevant time of the investigation, he was a
sergeant with the Crime Free Multi-Housing Division in the Hawthorne Police
Department. Sergeant Romero worked with Mr. Chavez to investigate Section 8 housing
fraud. In July 2008, he received information from Mr. Chavez that plaintiffs had
committed fraud by accepting bribes from Section 8 applicants. Mr. Chavez reported
Rene Mayorga stated his former girlfriend, Idalia Linares, had given Ms. Mack a gift card
in exchange for a Section 8 voucher. On July 11, 2008, Sergeant Romero spoke with Ms.
Linares at the Hawthorne Police Department. Ms. Linares stated her aunt Carolina
Hernandez told her to give Ms. Mack a gift card to get Section 8 benefits. Ms. Linares
personally spoke with Ms. Mack and agreed to give Ms. Mack a gift. But Ms. Linares
later did not give Ms. Mack the gift card because she thought Ms. Mack was rude
towards her.
In an interview with Sergeant Romero and Mr. Chavez, Ms. Hernandez admitted
she told Ms. Linares to give Ms. Mack a gift as a token of appreciation, but not as a
condition for receiving benefits. Ms. Hernandez advised Ms. Linares not to give the gift
in front of others to avoid being accused of ―paying off‖ Ms. Mack. Ms. Hernandez
confirmed Ms. Mack‘s daughter lived in an apartment managed by Ms. Hernandez.
She denied having a personal relationship with plaintiffs but admitted she invited them to
lunch outings because they assisted Ms. Hernandez‘s tenants to receive their Section 8
benefits faster.
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The city also submitted the declaration of Hamid Pournamdari, the director of the
city‘s housing department. Mr. Pournamdari supervised Ms. Mack and Ms. Gossett when
they worked at the housing department. He supervised and appointed Roberto Chavez as
the fraud investigator in 2007 because Mr. Chavez had investigated Section 8 applicants
when Mr. Chavez was a housing specialist. Mr. Pournamdari did not open the position to
other applicants because the city rules permitted him to fill the position without an open
recruitment process.
In 2007, Mr. Pournamdari met with Ms. Mack and Mr. Chavez about Mr. Sanusi‘s
Section 8 voucher. Ms. Mack failed to verify bank information when issuing the
voucher. Ms. Mack later provided him with the needed information. Mr. Pournamdari
was not aware Mr. Sanusi was number 408 on the waiting list. Ms. Mack and Ms.
Gossett complained Mr. Chavez harassed them. Mr. Pournamdari determined plaintiffs
felt Mr. Chavez harassed them because Mr. Chavez checked their work. But it was Mr.
Chavez‘s job to check and audit the work of other employees. Mr. Pournamdari was
aware of two complaints concerning Ms. Gossett‘s failure to inspect apartment units.
In June 2008, Mr. Chavez told Mr. Pournamdari of his conversation with Rene
Mayorga, a Section 8 program participant. Mr. Mayorga alleged Ms. Mack was moving
people toward the top of the housing department‘s eligibility list for Section 8 housing in
exchange for gift cards. Mr. Pournamdari asked Mr. Chavez to investigate the matter.
At that time, Ms. Mack was in charge of the Section 8 waiting list and Ms. Gossett helped
her with the list. Mr. Pournamdari did not speak to the district attorney‘s office about the
investigation until the criminal complaint was filed. He also was not involved in the
decision to place plaintiffs on unpaid leave.
In addition, the city submitted the declaration of Jag Pathirana in support of its
summary adjudication motion. Mr. Pathirana was the city manager from 2006 through
2010. As the city manager, he was the executive director of the city‘s housing authority.
He did not remember seeing Ms. Mack or Ms. Gossett at Ms. McKinney‘s civil service
commission hearing. In addition, Mr. Pathirana knew about the McKinney case but was
not aware plaintiffs were witnesses in that case. He has not seen the witness list in the
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McKinney case, has never read Ms. McKinney‘s deposition, and plaintiffs never told him
they were witnesses in that case. In mid-2007, Mr. Pathirana discussed creating a fraud
investigator position with Mr. Pournamdari. Mr. Pournamdari suggested Mr. Chavez
would be a good investigator because Mr. Chavez was already doing a significant amount
of fraud investigations. Mr. Pathirana directed human resources manager Robert O‘Brien
to create a job description for the new position, which was later approved by the city
council.
In 2008, Mr. Chavez informed Mr. Pathirana about his investigation of plaintiffs
based on complaints from a member of the public. Mr. Pathirana and Mr. O‘Brien
reviewed Mr. Chavez‘s report after Mr. Chavez completed his investigation. Mr.
Pathirana and Mr. O‘Brien did not think there was enough evidence at that time to take
disciplinary action or to go to the district attorney. But, Mr. Chavez and Sergeant
Romero stated there was information they could not share that would be presented to the
district attorney. Later Mr. Pathirana spoke to Police Chief Heffner and Sergeant
Romero, who provided more information. After the conversation, Mr. Pathirana believed
the case was strong enough to bring to the district attorney‘s attention. However, Mr.
Pathirana never spoke to the district attorney‘s office about the matter. He received a
copy of the criminal complaint after it had been filed. Mr. Pathirana declared he
concurred with the decision to place plaintiffs on leave solely because of the job-related
criminal charges filed by the district attorney‘s office.
The city also filed a declaration from Robert O‘Brien, the city‘s human resources
manager. Mr. O‘Brien stated in 2004, his office received two Equal Employment
Opportunity Commission (EEOC) complaints from a housing department employee
Cheryl Williams. She alleged her supervisor, Harold Roth, had harassed, discriminated
and retaliated against her. The city mediated Ms. Williams‘ second claim through the
EEOC and reach a settlement. In November 2006, Ms. Gossett complained to the EEOC
that she was not receiving pay equal to a male housing inspector. The city settled with
Ms. Gossett and adjusted her salary.
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In February 2007, Mr. O‘Brien met with Ms. Gossett, Twanna Manago-Robinson
and Quila Lewis. Ms. Gossett stated she had recently met Congresswoman Maxine
Waters‘ staff to discuss the city‘s unfair treatment towards her. Ms. Gossett believed she
and other African American females who attended Ms. McKinney‘s civil service hearing
suffered from retaliation. Ms. Gossett complained she was not offered the opportunity to
compete for a housing inspector position when she was on medical leave. In addition,
Ms. Gossett stated the city did ―little‖ things to make her feel uncomfortable such as
providing her with a vehicle that had a malfunctioning air conditioner. But Ms. Gossett
acknowledged she raised those issues before the McKinney hearing and the city had
resolved them. Ms. Gossett then stated she should be compensated at the same rate as the
current housing inspector. However, Ms. Gossett admitted the city had sent her a draft
settlement agreement to resolve the compensation issue.
Mr. O‘Brien stated he had no involvement in the McKinney case, which he first
heard about in 2008. He has neither seen the witness list nor read Ms. McKinney‘s
deposition. Mr. O‘Brien was not aware plaintiffs were identified as witnesses in the
McKinney matter.
In mid-2007, Mr. Pathirana asked Mr. O‘Brien to prepare a job description for a
Section 8 housing fraud investigator. The first candidate for the fraud investigator
position could be appointed without opening up the position to a competitive recruitment
process. Mr. Pournamdari appointed Roberto Chavez to the position with Mr.
Pathirana‘s approval. In 2008, Mr. O‘Brien met with Mr. Chavez about Mr. Chavez‘s
investigation of plaintiffs. Mr. O‘Brien did not think there was enough evidence to take
disciplinary action but he did not review the criminal report prepared by Mr. Chavez and
Sergeant Romero. He did not speak to the district attorney‘s office about plaintiffs and
received a copy of the criminal complaint against plaintiffs after it had been filed in court.
On March 26, 2009, Mr. O‘Brien sent each plaintiff a letter suspending them without pay
based on the criminal charges filed by the District Attorney.
The city also submitted a certified copy of the March 17, 2009 felony complaint
alleging 11 counts against plaintiffs, Carolyn Hernandez, Herlinda Gonzales and Virginia
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Anna Molina. At the preliminary hearing, the trial court dismissed all but three of the
counts. On August 5, 2010, the criminal case was dismissed based on: ―Delay- action
not brought to court in time. The People cannot announce ready for trial. The People do
not have witnesses and their witnesses have not been served.‖
In opposition to the city‘s summary adjudication, plaintiffs submitted various
declarations and deposition testimony. Plaintiffs submitted Cheryl Williams‘ two
discrimination complaints against the city as ―me too‖ evidence. Ms. Williams was an
African American female housing department employee. Ms. Williams complained she
was harassed by a white housing director, Harold Roth. The trial court sustained
defendant‘s objections to these two complaints based on hearsay.
Plaintiffs also submitted Ms. McKinney‘s declaration in opposition to defendant‘s
motion. Ms. McKinney was an African American female employee who worked for the
city for 19 years. She was a legal secretary for the city‘s planning department. On June
20, 2006, the city terminated her by eliminating her position. Ms. McKinney filed
complaints against Mr. Roth and the city for racial discrimination, harassment and
retaliation. In addition, plaintiffs submitted Ms. Kinney‘s age, race and gender
discrimination complaints with the EEOC and the Department of Fair Employment and
Housing (DFEH),as well as her civil action complaint. The trial court sustained
defendant‘s objection to Ms. McKinney‘s DFEH and EEOC discrimination complaints
based on hearsay.
In addition, plaintiffs submitted trial testimony from Twanna Manago in the
McKinney action as ―me too‖ evidence. Ms. Manago is an African American female
employee who works in the finance department as a senior account clerk. Ms. Manago
made daily complaints to her union representative about the everyday harassment she and
other African American co-workers faced at work. Ms. Manago never filed a grievance
because she feared Mr. Pathirana would retaliate against her. The trial court sustained the
defendants‘ objection to Ms. Manago‘s testimony based on relevance.
Plaintiffs also submitted a declaration from Ms. Gossett. In her declaration, Ms.
Gossett stated on August 9, 2006, she made a formal written complaint of gender, race
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and disability discrimination to Mr. Pathirana, Mr. O‘Brien and Mr. Pournamdari which
was settled on April 24, 2007. In January 2007, Ms. Gossett attended a meeting with
Congresswoman Maxine Waters and three other African American co-workers, Rose
McKinney, Twanna Manago and Quila Lewis. In February 2007, Ms. Gossett met with
Mr. O‘Brien to discuss the racial discrimination, harassment and retaliation claims she
made to Congresswoman Waters. Before Ms. Gossett was suspended on March 26,
2009, she agreed to testify in Ms. McKinney‘s case.
In addition, plaintiffs submitted Ms. Gossett‘s deposition in support of their
summary adjudication opposition. Ms. Gossett testified she assisted Ms. Mack with the
waiting list in April 2007. Mr. Pournamdari asked Ms. Gossett and Ms. Mack to give
vouchers to applicants on the waiting list even though they told him the waiting list was
not ready. Ms. Gossett stated she inspected the apartment unit that Mr. Chavez and
Sergeant Romero claimed was not inspected. Someone coming out of the apartment
building held the door open for Ms. Gossett because she was wearing her city shirt. Once
inside the building, Ms. Gossett was able to access the unit because the carpet cleaners
had been at the apartment and left the door open. Ms. Gossett felt she was retaliated
against because Mr. Pathirana had fired her and it was ―a kick to his ego‖ when he had to
rehire her. Ms. Gossett asserted Mr. Chavez tried to make an African American female
employee, Alvenia Nunley, ―look bad‖ by complaining to Mr. Pournamdari that Ms.
Nunley was not doing her work. In addition, Ms. Gossett stated Mr. Chavez treated
another African American female housing specialist, Avater Winbourne, inappropriately
by ―always scrutinizing her work.‖ Ms. Gossett testified Ms. McClanahan was ―forced
out‖ and sent home without pay after she had an argument with Mr. O‘Brien. She also
stated Tonya Harris, a housing department employee, was laid off by the city.
Plaintiffs also submitted Ms. Mack‘s deposition in support of their summary
adjudication opposition. Ms. Mack stated Mr. Chavez referred to African American
people as ―those people‖ a few times when discussing African American housing
applicants. In addition, Mr. Chavez assumed Ms. Mack knew or was related to an
African American client simply because she struck up a conversation with that person.
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Ms. Mack stated she and Ms. Gossett were compiling the 2007 waiting list when
Mr. Pournamdari told them to issue vouchers to applicants on the waiting list. Ms. Mack
inquired whether Mr. Chavez would have a problem and Mr. Pournamdari replied ―No.‖
Ms. Mack stated Mr. Chavez tried to sabotage her work and get her fired by going
through her files and breaking into her desk on one occasion. Ms. Mack repeatedly asked
Mr. Pournamdari to be transferred out of the housing department because she was ―tired
of having to double-check‖ her work and ―being harassed.‖ Her requests were denied by
Mr. Pathirana.
Ms. Mack believed only people who were friends with Mr. Pathirana got pay
increases. Ms. Mack stated Mr. Chavez received a pay increase because the city created
the fraud investigator position for him. Ms. Mack asserted no African Americans
received any promotion or merit-based pay raises. Ms. Mack‘s and Ms. Gossett‘s
requests for pay raises were denied by the city. Ms. Mack stated she, Alvenia Nunley,
Tonya Harris, Ms. Gossett, Cheryl Williams and Quila Lewis were discriminated against
because they did not have job security in the face of layoffs. In addition, Ms. Mack
observed Mr. Pournamdari did not do anything when Ms. Winbourne complained to him
about her conflicts with Mr. Chavez.
In addition, plaintiffs submitted Mr. O‘Brien‘s deposition in their summary
adjudication opposition. Mr. O‘Brien was aware of two gender and race discrimination
lawsuits brought by Rose McKinney and Cheryl Williams, two former African American
female employees. In addition, Mr. O‘Brien testified Ms. Gossett, Twanna Manago and
Quila Lewis complained they were being treated differently because they supported Ms.
McKinney in her civil service commission hearing. Mr. O‘Brien acknowledged the city
did not have a fraud investigator until 2007 and no one replaced Mr. Chavez after his
position was eliminated from the city budget. Mr. O‘Brien reviewed Mr. Chavez‘s first
draft investigation report and thought the evidence was too weak to support the fraud
allegations. Mr. O‘Brien told Mr. Chavez he did not have reason to question Ms. Mack‘s
integrity or to believe she did anything illegal. Mr. O‘Brien also thought Mr. Chavez‘s
second draft report did not contain sufficient evidence to support the fraud allegations.
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Concerning plaintiffs‘ suspension, Mr. O‘Brien was directed by Mr. Pathirana to inform
plaintiffs they would be placed on unpaid leave because the district attorney had filed
criminal charges against plaintiffs. Mr. O‘Brien was not informed that criminal charges
against plaintiffs were later dismissed.
Plaintiffs also submitted Mr. Pathirana‘s deposition in support of their summary
adjudication opposition. Mr. Pathirana admitted he was served with Ms. McKinney‘s
racial discrimination lawsuit as the city manager. He was identified as a witness in the
McKinney case. Mr. Pathirana also attended Ms. McKinney‘s civil service hearing. He
recalled seeing African American female employees Monica McClananhan, Keeva
Phillips, and Twanna Manago at Ms. McKinney‘s civil service hearings. Mr. Pathirana
did not remember seeing Ms. Gossett, Ms. Mack, or Quila Lewis at the hearing but he
admitted he could not recall everyone that was there. Mr. Pathirana personally contacted
Ms. McKinney to try to settle her case without going through their respective attorneys.
Mr. Pathirana acknowledged he had two conversations with Congresswoman
Maxine Waters regarding complaints made by Ms. McKinney, Ms. Gossett, Ms. Lewis
and Ms. Manago. He spoke with Congresswoman Waters for about fifteen to twenty
minutes about each employee‘s specific complaints. Congresswoman Waters encouraged
Mr. Pathirana to have a meeting with her staff, the city staff and the employees to resolve
the complaints. Mr. Pathirana later had individual and group meetings with these
employees and Mr. O‘Brien.
Mr. Pathirana admitted the fraud investigator position was created with Mr.
Chavez in mind at the suggestion of Sergeant Chris Cognac from the Hawthorne Police
Department. He acknowledged he has been friends with Mr. Chavez for more than five
years. Mr. Chavez reported on his investigation of plaintiffs to Mr. Pathirana about 20
times. Mr. Pathirana attended one meeting with Mr. Chavez, Sergeant Romero and Mr.
O‘Brien where Mr. Chavez and Sergeant Romero discussed their investigation. Mr.
Pathirana and Mr. O‘Brien were not convinced there was sufficient evidence to support
the fraud allegations against plaintiffs. Mr. Pathirana instructed Sergeant Romero and
Mr. Chavez to gather more evidence before he would ―give them the okay to present it to
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the district attorney‘s office.‖ At the final meeting, Mr. Pathirana either made the
decision or was told that the investigation would be reported to the district attorney‘s
office. Mr. Pathirana admitted he was terminated by the city in 2010. Sometime after
Mr. Pathirana‘s termination, the city eliminated Mr. Chavez‘s position.
Plaintiffs also submitted Mr. Pournamdari‘s deposition in their summary
adjudication opposition. Mr. Pournamdari stated Mr. Chavez did not apply for the fraud
investigator position. Mr. Pournamdari promoted Mr. Chavez from housing specialist to
fraud investigator. Mr. Pournamdari testified Mr. Chavez reported that Ms. Mack had
issued Mr. Sanusi a voucher without completing the background check. Mr.
Pournamdari contacted Ms. Mack and Ms. Mack stated she kept the paperwork in a
different file. He testified Mr. Chavez later raised concerns about Mr. Sanusi‘s
placement on the waiting list, moving from number 408 to the top of the list. Mr.
Pournamdari admitted it was possible for an applicant to move from number 408 up to
the top of the list in a four or five year period if other applicants were no longer eligible
for Section 8 benefits. Mr. Sanusi was issued a voucher but he never became a Section 8
tenant. Mr. Pournamdari acknowledged Ms. Mack complained to him about Mr.
Chavez‘s interference with her work.
Mr. Pournamdari oversaw the waiting list but did not work on the list. Ms. Mack
was in charge of updating the waiting list. She was assisted by Ms. Gossett and Alvenia
Nunley, an office clerk. The housing department opened the waiting list when there were
not enough people to meet the Section 8 qualifications. He acknowledged Mr. Chavez
never proved Ms. Gossett or Ms. Mack received gifts from any Section 8 applicant. Mr.
Pournamdari had no personal knowledge that Ms. Mack or Ms. Gossett forged any
documents or presented any false documents to benefit a potential tenant. After criminal
charges were filed against plaintiffs, Mr. Pathirana called Mr. O‘Brien and Mr.
Pournamdari into his office. Mr. Pathirana stated plaintiffs would be placed on
administrative leave because criminal charges had been filed against them. Mr. O‘Brien
later notified Mr. Pournamdari that Ms. Gossett and Ms. Mack were terminated.
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Finally, plaintiffs submitted the deposition of Sergeant Romero in opposition to
the summary adjudication. Sergeant Romero agreed he did not trust Mr. Pathirana or Mr.
O‘Brien with confidential information during his investigation of plaintiffs. He
acknowledged Ms. Mack‘s daughter did not receive Section 8 benefits. Sergeant Romero
did not know whether Ms. Mack received any monetary gifts from applicants. Sergeant
Romero acknowledged his investigation of plaintiffs was based in part on statements
made by Mr. Mayorga and Ms. Linares. He admitted Mr. Mayorga was a convicted felon
who had a domestic violence history. But Sergeant Romero believed Mr. Mayorga‘s
assertion that Ms. Mack had accepted bribes and gifts. Sergeant Romero acknowledged
Ms. Linares and Mr. Mayorga committed Section 8 fraud because Mr. Mayorga was not
supposed to live in the Section 8 housing. He admitted Ms. Linares was not prosecuted
because she was deemed a percipient witness. Also, Ms. Linares decided not to give a
gift card to Ms. Mack because Ms. Mack was rude to her. Sergeant Romero stated there
was talk that the going rate was $500, but he never had tangible proof that Ms. Mack
received any money. Sergeant Romero also acknowledged Ms. Linares stated that
another employee named Sylvia later helped her with the Section 8 application. But
Sergeant Romero did not interview other housing department employees to determine
whether they helped Ms. Linares. Sergeant Romero was unable to interview Alvenia
Nunley, another African American housing employee, so he was not aware she had
assisted in processing the Section 8 applications.
C. Summary Adjudication Hearing and Ruling
At the summary adjudication hearing, plaintiffs argued ―me too‖ evidence from
seven other African American female employees was circumstantial evidence of the
city‘s race and gender discrimination. The trial court rejected plaintiffs‘ argument stating
the complaints contained allegations, not evidence of discrimination. The trial court
denied the city‘s motion as to plaintiffs‘ retaliation claim.
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But the court granted the city‘s summary adjudication motion as to plaintiffs‘
claims for race, gender, and disability discrimination, hostile work environment, and race,
gender and disability harassment. The trial court ruled plaintiffs failed to raise a triable
issue of material fact as to the existence of racially discriminatory intent. Plaintiffs cited
evidence that Mr. Chavez routinely referred to African Americans as ―those people‖ but
there was no supporting evidence for this statement and such remarks did not constitute
evidence of discriminatory intent. The trial court found plaintiffs failed to provide
evidence of gender-based discriminatory intent. In addition, the trial court found
plaintiffs failed to provide evidence of disability-based discriminatory intent.
Finally, the trial court held there was insufficient evidence to raise a triable issue
of material fact as to whether Mr. Chavez created a hostile work environment by
harassing African Americans on the basis of their race. Ms. Mack‘s complaint that Mr.
Chavez ―attacked the character‖ of African American employees Avater Winbourne, Ms.
Gossett, Alvenia Nunley and Peter Ojo was opinion without supporting evidence. In
addition, evidence that Mr. Chavez referred to African Americans as ―those people‖ and
his assumption that Ms. Mack knew or were related to African American clients she
conversed with were insufficient evidence of a hostile work environment. Also, the trial
court found that Ms. Mack‘s testimony that she caught Mr. Chavez going through her
files and trying to break into her desk was not evidence of racial animus.
D. Motions in Limine
The parties made several motions in limine before trial. Plaintiffs sought to
exclude evidence of any reference to Ms. McKinney‘s prior settlement of her racial
discrimination and retaliation lawsuit against the city in motion in limine no. 2. In
opposition to the motion, the city proposed limiting reference to Ms. McKinney‘s
settlement to the following: Ms. McKinney had a hearing before the civil service
commission to appeal her layoff from the city; Ms. McKinney filed a lawsuit alleging
racial discrimination; the case was settled without an admission of liability; and the
16
parties settled on February 2, 2009. At the hearing, the trial court granted the motion
limiting the testimony of the McKinney case as proposed by defendants.
In addition, the trial court granted several of the city‘s motions in limine. The
court granted the city‘s motion in limine no. 3 by excluding all evidence of allegations of
unlawful conduct more than one year prior to plaintiffs‘ claims with the DFEH. Also, the
trial court granted the city‘s motion in limine no. 4. The court excluded evidence
concerning allegations that the city or Mr. Pathirana misappropriated Department of
Housing and Urban Development (HUD) money. The trial court also granted the city‘s
motion in limine no. 8 by excluding ―me too‖ evidence of discrimination complaints by
third parties. But the trial court denied the city‘s motion in limine no. 12, which sought
to exclude allegations or events not alleged or referred to in the First Amended
Complaint.
E. Trial Evidence for Retaliation Claim
At trial, the parties stipulated Ms. McKinney‘s deposition was taken on April 16,
2008 and transcribed on May 3, 2008. They further stipulated the McKinney litigation
settled on January 19, 2009 and the settlement agreement was executed on February 2,
2009. During plaintiffs‘ case, they presented testimony from Ms. Mack, Ms. Gossett,
Ms. McKinney, Mr. O‘Brien, Mr. Pathirana, Mr. Pournamdari, and Sergeant Romero.
Ms. Mack testified she worked for the city as a housing specialist. In April 2007
she worked on the Section 8 waiting list under the direction of Mr. Pournamdari. Ms.
Gossett assisted her with the waiting list. In early January 2007, Ms. Mack was informed
by Mr. Pournamdari that Mr. Chavez had accused her of improperly issuing a voucher to
Mr. Sanusi. Ms. Mack wrote Mr. Pournamdari a January 9, 2007 memo responding to
the accusation and gave the Sanusi file to Mr. Pournamdari at his request. Mr.
Pournamdari reviewed the Sanusi file and was satisfied that all the documents were in the
file. But two weeks later, Mr. Pournamdari asked Ms. Mack for the Sanusi file and a
summary of how she handled the file. Mr. Pournamdari again told Ms. Mack that
17
everything was fine and there was no missing documentation. Ms. Mack later was
questioned about Mr. Sanusi‘s placement on the waiting list by Sergeant Romero in
December 2008. Ms. Mack explained Mr. Sanusi moved from number 408 on the 2004
waiting list towards the top of the 2007 waiting list after Ms. Mack purged the 2004
waiting list at Mr. Pournamdari‘s request. Mr. Sanusi was issued a voucher but never
used it. Ms. Mack denied ever taking any bribe or gift in exchange for a Section 8
voucher. After her meeting with Sergeant Romero and Mr. Chavez, Ms. Mack was
placed on paid administrative leave by Mr. O‘Brien. On March 26, 2009, the city
suspended Ms. Mack without pay and benefits pending the outcome of the investigation.
Ms. Mack testified she knew Rose McKinney who was a secretary at the city‘s
planning department. Ms. McKinney is African American. Ms. Mack attended two
sessions of Ms. McKinney‘s hearing before the civil service commission. She saw Mr.
Pathirana and Mr. O‘Brien at Ms. McKinney‘s civil service commission hearing. Ms.
Mack testified Mr. Pathirana made eye contact with her at the hearing. She later agreed
to testify as a witness at the McKinney trial in the summer of 2008.
Ms. Gossett testified she worked for the city as a Section 8 housing inspector. In
April 2007, Ms. Gossett assisted Ms. Mack with the Section 8 waiting list by inputting
the application data into the computer system. They were assisted by housing department
employees Cynthia Rodarte and Alvenia Nunley. Mr. Pournamdari instructed them to
give waiting list preference based on the date and time the applications were submitted.
Ms. Gossett testified she complained to Mr. Pournamdari about Mr. Chavez‘s
harassment of her which began in July 2006. Mr. Chavez harassed her by ―always
looking over [her] shoulder.‖ Ms. Gossett also complained about Mr. Chavez going
through Ms. Mack‘s files.
On December 3, 2008, Sergeant Romero questioned Ms. Gossett about a Section 8
unit that the owner alleged had not been inspected by Ms. Gossett. Ms. Gossett testified
she inspected the unit. The owner, Jacqueline Kelly, saw Ms. Gossett on the premises
but did not know how Ms. Gossett got into the unit because it was in a gated community.
Ms. Gossett explained someone let her inside because she wore a city shirt. She was able
18
to enter the unit because the door was open for the carpet cleaners. Ms. Gossett
questioned why Ms. Kelly would complain after she had already received Section 8 rent
for fourteen months. Ms. Gossett testified Sergeant Romero also asked her whether she
accepted bribes. She denied taking any bribe in exchange for a housing voucher or
moving anyone up the waiting list.
After her interview with Sergeant Romero, Ms. Gossett was placed on paid
administrative leave. On March 5, 2009, Ms. Gossett received a letter from Sergeant
Romero stating that a criminal complaint had been filed against her. On March 26, 2009,
Ms. Gossett was suspended without pay.
Ms. Gossett testified she was aware Ms. McKinney had filed a lawsuit against the
city. Ms. Gossett was listed as a trial witness in the McKinney case. Ms. Mack was
identified as ―Maudrey Mack‖ in the joint list of trial witnesses in the McKinney action.
The trial witness list was filed with the court on December 23, 2008.
Ms. McKinney testified she worked for the city for 18 years, from 1988 until
2006. She was a legal secretary for the planning and community development
department for ten years until her layoff in May 2006. After the civil service commission
hearing concluded, Ms. McKinney challenged her termination by filing a discrimination
lawsuit against the city. She identified Ms. Mack and Ms. Gossett as witnesses for her
January 20, 2009 trial. Ms. McKinney‘s case later settled before trial. The city settled
the McKinney lawsuit without admitting liability.
Mr. O‘Brien testified he became the city‘s human resources manager in March
2002. Mr. O‘Brien stated he attended Ms. McKinney‘s hearing before the civil service
commission. The hearing began in September 2006 and concluded in February 2007.
He did not recall seeing Ms. Mack or Ms. Gossett at the McKinney hearing. Mr.
Pathirana notified Mr. O‘Brien that plaintiffs would be placed on paid administrative
leave because of ongoing administrative and criminal investigations of plaintiffs. In early
December 2008, Mr. O‘Brien informed plaintiffs they would be placed on administrative
leave. Mr. O‘Brien did not recall whether he knew about Ms. McKinney‘s race
discrimination and retaliation lawsuit at the time he placed plaintiffs on leave. In March
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2009, Mr. Pathirana directed Mr. O‘Brien to place plaintiffs on unpaid leave after the Los
Angeles district attorney filed felony charges against plaintiffs.
Mr. O‘Brien saw Mr. Chavez‘s draft investigation report a few weeks after
plaintiffs were placed on paid administrative leave. Mr. O‘Brien told Mr. Chavez the
information was difficult to follow and insufficient to support the fraud allegations
against plaintiffs. He reviewed Mr. Chavez‘s subsequent draft and thought the report was
―still weak.‖ However, Mr. O‘Brien never reviewed Sergeant Romero‘s report
concerning his investigation of plaintiffs.
Mr. Pathirana testified he was the city manager from June 2006 to May 2010. He
was in charge of the city‘s day-to-day operations under the city council‘s direction. Mr.
Pathirana testified after Ms. McKinney‘s position was eliminated, she appealed to the
civil service commission. He attended the McKinney civil service commission hearing
but did not remember whether Ms. Mack or Ms. Gossett were present at the hearing.
Mr. Pathirana testified Ms. McKinney filed a lawsuit after the civil service commission
hearing.
Mr. Pathirana created the fraud investigator position upon the recommendation of
Sergeant Chris Conrad from the Hawthorne Police Department. Mr. Chavez was selected
for the fraud investigator position because he was already doing housing fraud
investigations. In addition, Sergeant Conrad recommended Mr. Chavez for the position.
Mr. Pathirana acknowledged he and Mr. Chavez were very good friends.
Mr. Pathirana was aware of Mr. Chavez‘s investigation of plaintiffs but denied
monitoring the investigation. He reviewed some reports from Mr. Chavez concerning the
investigation. Mr. Pathirana had two meetings with Sergeant Romero where he was
informed of the status of the investigation. Sergeant Romero sent Mr. Pathirana a letter
on December 17, 2008 regarding the status of his criminal investigation of plaintiffs.
Mr. Pathirana stated criminal charges went forward to the district attorney‘s office
because Sergeant Romero and Mr. Chavez believed they had sufficient evidence. The
criminal charges against plaintiffs were later dismissed.
20
Mr. Pournamdari testified he became the director of the housing department in
2005. He is in charge of the day-to-day operation of the housing department and handles
Section 8 funding from the federal government. He was Ms. Mack‘s and Ms. Gossett‘s
supervisor. In 2007, Mr. Chavez informed Mr. Pournamdari that Mr. Sanusi‘s file was
missing a document. Mr. Pournamdari asked Ms. Mack about the missing background
check and was told the police department never sent back the information. Later, the
police department sent back the background check. Mr. Pournamdari acknowledged Ms.
Mack complained about Mr. Chavez looking through her files. Mr. Chavez also
reviewed Mr. Sanusi‘s placement on the waiting list. Ms. Mack was in charge of the
waiting list with assistance from Ms. Gossett. Mr. Pournamdari oversaw the waiting list
maintained by Ms. Mack. Mr. Pournamdari set the waiting list preference based on city
residence and the date and time of the Section 8 application submissions. He admitted a
Section 8 applicant like Mr. Sanusi could move up because the waiting list was purged of
ineligible applicants every fifteen months. Mr. Sanusi received a voucher but did not
received any Section 8 benefits.
Mr. Pournamdari testified Mr. Chavez informed him that an anonymous caller had
accused plaintiffs of receiving gifts in exchange for helping people with Section 8
benefits. Mr. Chavez never showed Mr. Pournamdari any evidence that Ms. Gossett or
Ms. Mack received money or gifts in exchange for Section 8 vouchers. Mr. Chavez also
notified Mr. Pournamdari that an owner had complained Ms. Gossett did not inspect her
unit. The owner also called Mr. Pournamdari to complain that her unit had not been
inspected. Mr. Pournamdari spoke with Ms. Gossett and Ms. Gossett stated she had done
the inspection. Later, Mr. Pournamdari attended a meeting with Mr. Pathirana, Mr.
Chavez, and Sergeant Romero concerning the investigation of plaintiffs. At the meeting,
Sergeant Romero decided to go forward with the criminal prosecution of plaintiffs. Mr.
Pournamdari testified he was not involved in the decision to place plaintiffs on
administrative leave.
Mr. Pournamdari was not aware of when the McKinney lawsuit was filed. He also
did not know whether Ms. McKinney gave deposition testimony in her lawsuit. Also,
21
Mr. Pournamdari was not aware that plaintiffs were suspended without pay five weeks
prior to Ms. McKinney‘s trial date. He also did not know that Ms. McKinney‘s trial date
was January 20, 2009. He was not asked to be a witness in the McKinney case. And Mr.
Pathirana did not tell him that he was a witness in the McKinney case.
Sergeant Romero testified he was assigned to the criminal abatement office known
as the crime-free multi-housing unit. In early July 2008, Sergeant Romero was contacted
by Mr. Chavez concerning a call from Rene Mayorga alleging Ms. Mack was involved in
fraud. Mr. Mayorga called to report on his co-habitant, Idalia Linares, and her relatives
because he had a falling out with them. Sergeant Romero admitted there was no physical
evidence of bribery. But he believed there was circumstantial evidence of misconduct
based on statements from Mr. Mayorga, Ms. Linares, Ms. Linares‘s relatives, and
plaintiffs‘ inconsistent statements. Sergeant Romero stated Ms. Mack explained for the
waiting list, ―they inputted the data so that the numbers come out the way the wanted
them to.‖ Sergeant Romero also testified he believed Ms. Gossett filed a false inspection
report because Ms. Kelly, the unit‘s owner, complained the unit had not been inspected.
Sergeant Romero was not aware that Ms. McKinney had filed a racial
discrimination and retaliation lawsuit before the July 2008 investigation of plaintiffs.
He did not know Ms. McKinney had identified plaintiffs as possible witnesses in her
deposition prior to the July 2008 investigation. Sergeant Romero spoke with Mr.
Pathirana twice about his investigation of plaintiffs. He also wrote a memorandum to Mr.
Pathirana on December 17, 2008 regarding the investigation at the request of his police
chief.
F. Nonsuit Motion and Ruling
The city made a motion for nonsuit at the end of plaintiffs‘ case. The city argued
plaintiffs failed to establish a causal link between their support of Ms. McKinney‘s civil
service commission hearing and discrimination lawsuit and the city‘s decision to suspend
them. The trial court granted the city‘s nonsuit motion.
22
The trial court explained: ―First of all, it‘s undisputed that Ms. McKinney‘s
complaint was filed on September 5, 2007. Ms. Mack testified that the issue with regard
to the waiting list and Mr. Sanusi‘s movement up the waiting list and Mr. Sanusi‘s file
came up in January of 2007. [¶] She testified she was accused of issuing inappropriate
vouchers to Mr. Sanusi, and Mr. Pournamdari went over the file with her. She claims
that everything was determined to be okay at that juncture, but, nonetheless, the issue
came up in January of 2007. [¶] Ms. Mack also testified that she agreed to appear as a
witness on behalf of McKinney in the summer of 2008. We know that she also testified
that she was present at the civil service commission hearing, that she made eye contact,
allegedly twice, but that she did not, in fact, testify. . . . [¶] So putting the timing
together, . . . the accusations against Ms. Mack with regard to the improper issuance of
the voucher and the Sanusi file came up January 2007. That‘s eight months before Ms.
McKinney‘s complaint was filed. . . . [¶] Ms. Gossett testified that she was made aware
that she was being investigated in December of 2008. She was told to meet with
Sergeant Romero. She testified that she knew Rose McKinney, and she was aware that
Ms. McKinney had challenged her termination.‖
The trial court took judicial notice of the December 23, 2008 joint witness list
submitted in the McKinney action. The witness list identified plaintiffs as trial witnesses.
The trial court noted the investigation of plaintiffs occurred in early July 2008. The trial
court found the investigation was legitimate and ―not linked in any way by temporary
proximity or anything that would allow the court to conclude there is any basis to find
retaliation.‖
III. DISCUSSION
A. Summary Adjudication of Race and Gender Discrimination Claims
Summary judgment may be granted only if there is no triable issue of material fact
and the party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
23
(c).) A defendant moving for summary judgment has the burden of presenting evidence
that negates an element of plaintiff‘s claim or evidence that the plaintiff does not possess
and cannot reasonably expect to obtain evidence needed to support an element of the
claim. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 768.) If the defendant meets this burden,
the burden shifts to the plaintiff to set forth ―specific facts‖ showing that a triable issue of
material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review de novo the trial court‘s grant of summary judgment. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1039; Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201,
206.) We take the facts from the record that was before the trial court when it ruled on
the motion and consider all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained. (Ibid.; Code Civ. Proc. § 437c,
subd. (c).) The court does not weigh the parties‘ evidence; rather, it must consider all the
evidence and ―all inferences reasonably deducible from the evidence.‖ (Code Civ. Proc.
§ 437c, subd. (c); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-541; Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) But our Supreme Court has stated,
―any doubts as to the propriety of granting a summary judgment motion should be
resolved in favor of the party opposing the motion.‖ (Reid v. Google, Inc. supra, 50
Cal.4th at p. 535; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)
The Fair Employment and Housing Act (FEHA) prohibits an employer from
discriminating against an employee based on race, medical condition, or gender
discrimination. (Gov. Code § 12940, subd. (a).) The court applies ―a three-stage burden-
shifting test‖ for discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 354; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) At trial, the
plaintiff bears the initial burden of establish a prima facie case of discrimination or
retaliation. If the employee does so, a presumption of discrimination or retaliation arises.
(Guz, supra, 24 Cal.4th at p. 354; Yanowitz, supra, 36 Cal.4th at p. 1042.) The burden
then shifts to the employer to rebut the presumption by producing admissible evidence
that its adverse employment action was taken for a legitimate, nondiscriminatory or
24
nonretaliatory reason. (Guz, supra, 24 Cal.4th at p. 355-356; Yanowitz, supra, 36 Cal.4th
at p. 1042.) If the employer does so, the burden shifts back to plaintiff to ―attack the
employer‘s proffered reasons as pretexts for discrimination‖ or retaliation, or to offer
other evidence of intentional discrimination or retaliation. (Guz, supra, 24 Cal.4th at p.
356; Yanowitz, supra, 36 Cal.4th at p. 1042.)
A defendant moving for summary judgment may skip to the second step of the
analysis by demonstrating it has a legitimate business reason, unrelated to race, gender,
other protected classifications, or retaliation. (Guz v. Bechtel National Inc., supra, 24
Cal.4th at p. 357.) The plaintiff then has ―the burden to rebut this facially dispositive
showing by pointing to evidence which nonetheless raises a rational inference that
intentional discrimination occurred.‖ (Ibid.)
1. ―Me Too‖ Evidence
Plaintiffs argue the trial court erred in granting summary adjudication of their race
and gender discrimination claims. Plaintiffs contend race and gender discrimination can
be inferred because nine African American female employees— Ms. Williams, Ms.
McKinney, Ms. Winbourne, Ms. McClanahan, Ms. Nunley, Ms. Lewis, Ms. Harris, Ms.
Gossett and Ms. Mack— all complained of discrimination and retaliatory treatment.
Plaintiffs assert it was reversible error not to consider the ―me too‖ evidence of
discrimination from the other African American female employees. They argue the ―me
too‖ evidence is relevant and admissible evidence under Pantoja v. Anton (2011) 198
Cal.App.4th 87, 115 and Johnson v. United Cerebral Palsy/Spastic Children’s
Foundation (2009) 173 Cal.App.4th 740, 747 (Johnson). We disagree.
We conclude the trial court properly excluded plaintiffs‘ ―me too‖ evidence. First,
plaintiffs failed to present their ―me too‖ evidence of the third party complaints in their
separate statement of disputed facts. Plaintiffs did not comply with Code of Civil
Procedure § 437c, subdivision(b)(3), which requires plaintiffs to ―‗set forth plainly and
concisely any other material facts that the opposing party contends are disputed.‘‖ Thus,
25
the trial court did not have to consider the ―me too‖ evidence. (Batarse v. Service
Employees Intern. Union Local 1000 (2012) 209 Cal.App.4th 820, 828-829.) Second,
plaintiffs do not challenge the trial court‘s exclusion of some of the ―me too‖ evidence as
hearsay including: Ms. Williams‘ and Ms. McKinney‘s discrimination complaints; Ms.
William‘s declaration in the McKinney action; and Ms. Manago‘s trial testimony in the
McKinney case. Only admissible evidence may be considered when determining
whether there is a triable issue. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755,
761; DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666,
679-682.)
Finally, we disagree with plaintiffs‘ assertion that their ―me too‖ evidence is
relevant and admissible under Johnson, supra, 173 Cal.App.4th at p. 747 and Pantoja v.
Anton, supra, 198 Cal.App.4th at p. 115. Both cases are distinguishable from the present
case. In Johnson, plaintiff alleged she was terminated after she became pregnant. (173
Cal.App.4th at pp. 744, 746.) In opposition to summary judgment, plaintiff submitted
declarations from former employees asserting they were fired when they became
pregnant or knew someone who was fired because of pregnancy. (Johnson, supra, 173
Cal.App.4th at pp. 761-762.) All four employees who stated they were fired when they
became pregnant worked at the same facility, had the same three supervisors, and were
fired very shortly after their supervisors learned of their pregnancy. (Johnson, supra, 173
Cal.App.4th at p. 761 fn. 14.)
Likewise, plaintiffs‘ reliance on Pantoja v. Anton, supra, 198 Cal.App.4th at p.
115 is misplaced. In Pantoja v. Anton, plaintiff sued her employer for race and sex
discrimination and sexual harassment. (198 Cal.App.4th at p. 93.) The trial court ruled,
both before and during trial, that evidence of defendant‘s sexual harassment of other
employees was admissible only if it took place in plaintiff‘s presence or affected her
work environment. (Pantoja v. Anton, supra, 198 Cal.App.4th at p. 109.) The appellate
court held it was error not to admit ―me too‖ evidence of sexual harassment by defendant
against other employees. (Ibid.) The ―me too‖ evidence was relevant to prove
defendant‘s intent when he used profanity and touched employees. (Ibid.) In addition,
26
defendant‘s sexual harassment of other employees was admissible to impeach
defendant‘s credibility and to rebut factual claims made by defense witnesses. (Id. at p.
110.)
Here, plaintiffs presented the following ―me too‖ evidence. Mr. Chavez
constantly complained about Ms. Nunley‘s work to their supervisor, Mr. Pournamdari.
In addition, Mr. Chavez constantly argued with Ms. Winbourne and scrutinized her work.
Ms. Gossett testified Ms. McClanahan was ―forced out‖ and sent home without pay after
an argument with Mr. O‘Brien. Tonya Harris, a housing department employee was laid
off by the city. Also, Ms. McKinney complained about race and sex discrimination and
harassment by her planning department supervisor, Mr. Roth.
We find the ―me too‖ evidence lacks the factual and supervisory nexus present in
Johnson and Pantoja v. Anton. Plaintiffs complained about Mr. Pathirana and Mr.
Chavez‘s actions; Ms. McKinney complained about discrimination and harassment from
a different supervisor, Mr. Roth. Also, evidence that Ms. McClanahan was ―forced out‖
and Ms. Harris was laid off without more detail does not give rise to an inference of race
and gender discrimination. In addition, Mr. Chavez‘s conduct towards Ms. Nunley and
Ms. Winbourne has no bearing on Mr. Chavez‘s investigation of plaintiffs and Mr.
Pathirana‘s subsequent decision to place plaintiffs on administrative leave. We conclude
the trial court properly excluded the ―me too‖ evidence.
2. Pretext
Plaintiffs assert the fraud investigation was a pretext for the city‘s race and gender
discrimination and retaliation. They contend the city never established a legitimate, non-
discriminatory reason for its investigation of plaintiffs. We disagree.
To avoid summary judgment, plaintiffs must offer substantial evidence that the
city‘s stated nondiscriminatory reason was untrue or pretextual, or the city acted with
discriminatory animus, or a combination of the two. (Hersant v. Dept. of Social Services
(1997) 57 Cal.App.4th 997, 1004-1005; Johnson, supra, 173 Cal.App.4th at p. 755.) It is
27
not enough for plaintiffs to simply ―show that the employer‘s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated
the employer, not whether the employer is wise, shrewd, prudent or competent.‖
(Hersant v. Dept. of Social Services, supra, 57 Cal.App.4th at p. 1005; Johnson, supra,
173 Cal.App.4th at p. 755.) Rather, ‗―[t]he [employee] must demonstrate 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,‘ [citation], and hence infer ‗that the employer
did not act for . . . [the asserted] non-discriminatory reasons.‘ [Citations.]‖ (Ibid.)
We conclude plaintiffs failed to rebut the city‘s proffered legitimate non-
discriminatory reasons for the investigation and administrative leave. Mr. Chavez
received a telephone call from an informant, Mr. Mayorga, alleging Ms. Mack engaged in
misconduct. Mr. Chavez and Sergeant Romero conducted interviews of Mr. Mayorga,
his girlfriend, Ms. Linares, and her relatives. Ms. Linares implicated Ms. Gossett stating
Ms. Gossett knew about the alleged scheme. In addition, Mr. Chavez and Sergeant
Romero investigated Ms. Gossett concerning her failure to inspect a Section 8 apartment
after the landlord complained there had been no inspection. Also, Ms. Mack was
separately investigated as to Mr. Sanusi‘s placement on the waiting list because Mr.
Chavez believed other applicants should have received a voucher before Mr. Sanusi.
After Mr. Chavez and Sergeant Romero conducted their investigation, they presented
their evidence to the district attorney‘s office. The city later placed plaintiffs on
administrative leave after the district attorney filed criminal charges against them. The
city‘s evidence on its face is sufficient to support summary adjudication of the
discrimination claims. (Johnson, supra, 173 Cal.App.4th at p. 756.)
B. Nonsuit on Retaliatory Claim
―In reviewing a judgment of nonsuit, ‗we must view the facts in the light most
favorable to the plaintiff. ―[C]ourts traditionally have taken a very restrictive view of the
28
circumstances under which nonsuit is proper. The rule is that a trial court may not grant a
defendant‘s motion for nonsuit if plaintiff‘s evidence would support a jury verdict in
plaintiff's favor. [Citations.] [¶] In determining whether plaintiff‘s evidence is
sufficient, the court may not weigh the evidence or consider the credibility of witnesses.
Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting
evidence must be disregarded. The court must give ―to the plaintiff[‘s] evidence all the
value to which it is legally entitled, . . . indulging every legitimate inference which may
be drawn from the evidence in plaintiff[‘s] favor. . . .‘‖ [Citation.] The same rule applies
on appeal from the grant of a nonsuit. [Citation.]‘ [Citation.]‖ (O’Neil v. Crane Co.
(2012) 53 Cal.4th 335, 347; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215.)
―[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff
must show (1) he or she engaged in a ‗protected activity,‘ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between the
protected activity and the employer's action. [Citations.] Once an employee establishes a
prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for
the adverse employment action. [Citation.] If the employer produces a legitimate reason
for the adverse employment action, the presumption of retaliation ‗―‗drops out of the
picture,‘‖‘ and the burden shifts back to the employee to prove intentional retaliation.
[Citation.]‖ (Yanowitz, supra, 36 Cal.4th at p. 1042; Kelley v. The Conco Companies
(2011) 196 Cal.App.4th 191, 209.)
Plaintiffs argue the nonsuit must be reversed. Plaintiffs assert the fraud
investigation was linked by temporal proximity to plaintiffs being identified as witnesses
in Ms. McKinney‘s racial discrimination and retaliation lawsuit. Plaintiffs contend the
investigation occurred in June 2008, after Ms. McKinney identified them as witnesses in
her April 16, 2008 deposition. And the investigation was conducted a few weeks after
Ms. McKinney‘s deposition was transcribed on May 3, 2008. They assert of the four
employees – Ms. Mack, Ms. Gossett, Ms. Nunley and Ms. Rodarte— that handled the
waiting list, only they were investigated in June 1008 because they were McKinney
29
witnesses. Furthermore, they were suspended on December 3, 2008, exactly 48 days
before the January 20, 2009 McKinney trial date. Plaintiffs‘ arguments are unpersuasive.
We conclude the trial court properly granted the nonsuit motion. Ms. Mack
testified she attended two sessions of Ms. McKinney‘s civil service commission hearing
and made eye contact with Mr. Pournamdari. But Mr. Pournamdari and Mr. O‘Brien did
not recall seeing either Ms. Mack or Ms. Gossett at the McKinney civil service
commission hearing.
Also, plaintiffs assert the trial court improperly considered testimony concerning
Ms. Mack‘s handling of the Sanusi file in January 2007. They argue this evidence was
precluded by the trial court‘s pretrial evidentiary ruling. We disagree. The trial court
granted the city‘s motion in limine no. 3 by excluding all evidence of allegations of
unlawful conduct more than one year prior to plaintiffs‘ claims with the DFEH. But
plaintiffs cannot complain about any error because they themselves introduced evidence
that Ms. Mack‘s work was first investigated by Mr. Chavez and Mr. Pournamdari in
January 2007. They also presented testimony from Ms. Gossett that Mr. Chavez began to
harass her in July 2006.
In addition, Sergeant Romero testified he began investigating plaintiffs in July
2008 after Mr. Chavez informed him about Mr. Mayorga‘s accusations. Although,
plaintiffs question Mr. Mayorga‘s credibility, it is undisputed Sergeant Romero and Mr.
Chavez conducted the investigation independent of the McKinney lawsuit. Also, it is
undisputed Sergeant Romero and Mr. Chavez investigated Ms. Gossett because Ms.
Kelly complained Ms. Gossett failed to inspect her Section 8 unit. Sergeant Romero
testified he was not aware of the McKinney lawsuit before he conducted the July 2008
investigation. He also did not know Ms. McKinney had identified plaintiffs as possible
witnesses in her deposition. He was not aware of the McKinney litigation until after
criminal charges had been filed against plaintiffs. Likewise, Mr. Pournamdari did not
know when the McKinney lawsuit was filed. He also did not know about Ms.
McKinney‘s deposition testimony in her lawsuit. Also, Mr. O‘Brien did not recall
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whether he knew about Ms. McKinney‘s race discrimination and retaliation lawsuit at the
time he placed plaintiffs on leave.
The trial court did not err in finding plaintiffs failed to establish a prima facie case
of retaliation. Plaintiffs failed to show a causal link between the protected activity of
being witnesses in a discrimination case and the fraud investigation.
C. Evidentiary Objections
We review a trial court‘s evidentiary rulings, including motions in limine to
exclude evidence, for an abuse of discretion. (County of Glenn v. Foley (2012) 212
Cal.App.4th 393, 398; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.)
―This is particularly so with respect to rulings that turn on the relevance of the proffered
evidence. [Citation.] This standard is not met by merely arguing that a different ruling
would have been better. Discretion is abused only when in its exercise, the trial court
‗exceeds the bounds of reason, all of the circumstances before it being considered.‘
[Citation.]‖ (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 281.)
Moreover, ―[i]t is for the trial court, in its discretion, to determine whether the probative
value of relevant evidence is outweighed by a substantial danger of undue prejudice. The
appellate court may not interfere with the trial court‘s determination . . . unless the trial
court‘s determination was beyond the bounds of reason and resulted in a manifest
miscarriage of justice.‖ (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596.) The
appellants have the burden of establish an abuse of discretion. (Shaw v. County of Santa
Cruz, supra, 170 Cal.App.4th at p. 281.)
We conclude the trial court‘s evidentiary rulings were not an abuse of discretion.
The trial court limited testimony regarding the McKinney lawsuit to the following: Ms.
McKinney had a hearing before the civil service commission to appeal her layoff from
the city; Ms. McKinney filed a lawsuit alleging racial discrimination and retaliation; the
case was settled without an admission of liability; and the parties settled on February 2,
2009. Plaintiffs argue it was error to exclude testimony concerning: McKinney‘s
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complaints to Mr. Pathirana of racial discrimination; Mr. Pathirana‘s termination of Ms.
Kinney; Ms. McKinney‘s civil service hearing where Mr. Pathirana ―stared down‖ Ms.
Mack to intimidate her; Mr. Pathirana‘s attempt to settle the lawsuit with Ms. McKinney;
Ms. McKinney‘s and Ms. Gossett‘s meeting with Congresswoman Waters; and Mr.
Pathirana‘s investigation of Congresswoman Waters‘ complaint. In addition, they
challenge the trial court‘s exclusion of evidence concerning allegations that the city or
Mr. Pathirana misappropriated HUD money. Plaintiffs do not explain how the excluded
evidence is relevant to their retaliation claim.
Plaintiffs also challenge the trial court‘s exclusion of evidence of allegations of
unlawful conduct more than one year prior to plaintiffs‘ claims with the DFEH. We find
no error. The time limit for filings claims with the DFEH is one year from the alleged
unlawful act. (Gov. Code § 12960, subd. (d) [―No complaint may be filed after the
expiration of one year from the date upon which the alleged unlawful practice or refusal
to cooperate occurred . . .‖]) Any alleged violation that occur one year before the filing
of plaintiffs‘ DFEH complaints is barred by the statute of limitations. (Cucuzza v. City of
Santa Clara (2002) 104 Cal.App.4th 1031, 1040; Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 63.)
Furthermore, plaintiffs argue it was error to exclude ―me too‖ evidence of
discrimination complaints by third parties. Plaintiffs fail to demonstrate why the ―me
too‖ evidence is admissible and relevant to their retaliation claim.
Finally, plaintiffs take issue with numerous trial evidentiary rulings. However,
plaintiffs present no legal argument in support of their evidentiary objections. In
addition, they do not explain why and how any error caused harm. We find no abuse of
discretion.
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IV. DISPOSITION
We affirm the summary adjudication and nonsuit orders and judgment. We also
affirm the evidentiary exclusion orders. Costs on appeal are awarded to defendant, City
of Hawthorne.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
O‘NEILL, J.*
We concur:
TURNER, P. J.
KRIEGLER, J.
*
Judge of the Ventura County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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