Amanda Siegel vs The Regents of the University of California et al

Case Number

20CV00954

Case Type

Hearing Date / Time

Fri, 01/19/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment/Adjudication

Tentative Ruling

For the reasons set forth herein, The Regents of the University’s motion for summary judgment or, in the alternative, motion for summary adjudication is denied in its entirety.

Background:

This action commenced on February 19, 2020, with the filing of the complaint by plaintiff Amanda Siegel against defendants The Regents of the University of California (“Regents”), Michael Little, and Greg Smorodinsky alleging causes of action for: (1) Harassment in Violation of FEHA; (2) Quid Pro Quo Sexual Harassment in Violation of FEHA; (3) Discrimination in Violation of FEHA; (4) Retaliation in Violation of FEHA; and (5) Violation of Labor Code section 1102.5.

As alleged in the complaint:

Plaintiff was hired by Regents as a police officer in June 2015, following a panel review. (Complaint, ¶ 11.) Plaintiff received positive performance reviews throughout her four years of employment with Regents. (Complaint, ¶ 12.)

In Spring 2016, Little grabbed plaintiff’s lower back/buttocks area, puller her close, and tried to kiss her. (Complaint, ¶ 13, subd. (b).) Plaintiff pulled away. (Ibid.)

In late 2017, plaintiff complained to Lt. Rob Romero about Little and Little’s wife creating a hostile workplace. (Complaint, ¶ 13, subd. (c).) In September 2017, Little had been made a corporal and was working on plaintiff’s shift as a supervisor. (Ibid.)

In 2018 and 2019, plaintiff submitted a Title IX complaint to Regents about the sexual harassment and disparate treatment, but the complaint was rejected. (Complaint, ¶ 13, subd. (d).) In 2019, plaintiff also made a complaint regarding sexual harassment and disparate treatment on an Ethicspoint whistle-blower hotline, the ombudsman office, and human resources but never received any resolution regarding her complaints. (Complaint, ¶ 13, subd. (e).) Plaintiff complained to Lt. Millard, who informed plaintiff that Sgt. Wilson stated that plaintiff was causing issues in the department and needed to be investigated because of her gender and relationships. (Complaint, ¶ 13, subd. (f).) Plaintiff filed a new Title IX complaint, but it was again rejected. (Ibid.)

On February 10, 2019, plaintiff’s doctor placed her off work due to stress. (Complaint, ¶ 13, subd. (g).)

On August 23, 2019, plaintiff received a call from Karen Kramer, an investigator hired by UCSB to investigate claims the Littles had filed against UCSB. (Complaint, ¶ 13, subd. (h).) Plaintiff reiterated to Kramer the same complaints she had already submitted under Title IX. (Ibid.)

Regent’s employees Little and Tiffany Little created a hostile work environment for plaintiff by informing other officers that department issues were plaintiff’s fault. (Complaint, ¶ 14, subd. (a).) In early 2018, plaintiff returned to work from medical leave and months later was promoted to Corporal and Field Training Officer positions. (Complaint, ¶ 14, subd. (b).) In October 2018, after Little did not get a position he applied for, he became angry and told coworkers that plaintiff only received her promotion because she was sleeping with a supervisor. (Ibid.)

“In August 2018, Siegel applied for and interviewed for a forensic analyst position. After the interview, Defendant Smorodinsky ordered Siegel to come to his house. He further ordered her to leave her cell phone and radio in the squad car. Once inside, Defendant Smorodinsky stated that Siegel was the top candidate for the forensic analyst position, but that he could not trust her because Siegel would not engage in the kind of personal relationship he wanted. Defendant Smorodinsky bluntly stated that he wanted to get married and have babies with Siegel. Siegel stated that she would not date Defendant Smorodinsky.” (Complaint, ¶ 14, subd. (c).)

“A few days after being turned down by Siegel, Defendant Smorodinsky called Siegel and informed her that she was not a good fit for the forensic analyst position. Siegel apologized and stated that sometimes relationships do not work out the way we want them to and that’s just how it is. To which, Defendant Smorodinsky responded ‘Well, when things don’t go the way you want them to at work, I’ll be sure to remind you that that’s just how it is.’ ” (Complaint, ¶ 14, subd. (d).)

“In November 2018, Siegel responded to a call along with Sergeant Dan Wilson and Officer Saray Rubio to investigate an intoxicated person. Siegel had to arrest the suspect, who was combative and resistant, who had already kicked Sergeant Wilson, on her own because Rubio refused to help her, putting Siegel in danger. After Siegel confronted Rubio, she responded, ‘I don’t have to do anything you tell me. You are not a real Corporal.’ Sergeant Dan Wilson and Officer Saray Rubio have a close friendship with Defendant Little.” (Complaint, ¶ 14, subd. (e).)

“The Regents failed to investigate Siegel’s complaints, failed to remedy the discrimination, harassment, and retaliation against Siegel, and failed to prevent future discrimination, harassment, and retaliation against Siegel.” (Complaint, ¶ 14, subd. (f).)

“On August 27, 2019, Siegel met with Chief James Brock, who told her that the Littles and others had “ ‘orchestrated’ ” complaints against her to get her fired. Chief Brock stated to Siegel: “ ‘You are a target to them.’ ” Siegel told him, “ ‘I am resigning because of all this,’ ” and signed a resignation letter stating that she was resigning for harassment. The workplace was objectively intolerable, and plaintiff Siegel had no alternative but to resign.” (Complaint, ¶ 15.)

Regents now move for summary judgment or, in the alternative, summary adjudication as to each of plaintiff’s causes of action. Plaintiff opposes the motion.

Analysis:

            Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)    

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.] Nor may the trial court grant summary judgment for a defendant based simply on its opinion that plaintiff’s claims are “ ‘implausible,’ ” if a reasonable factfinder could find for plaintiff on the evidence presented.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) “[T]he function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

            Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

            Separate Statement

[Note: Plaintiff’s separate statement begins to be misnumbered at No. 31, which she mislabels as No. 32. As such, the court will refer to the facts by the numbers assigned to them by Regents.]

“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “ ‘setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “Material facts’ “ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 850-851.)

“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ ” [Citation.]” (Ibid.)

“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)

Here, Regents sufficiently complied with the above by setting forth a concise list of the undisputed material facts (“UMFs”) and the evidence that supports them. However, Plaintiff’s responses to the material facts were evasive and unhelpful to the court. For most of the UMF’s plaintiff did not directly address the fact stated. Rather, plaintiff adds additional facts and claims that the UMF was either disputed or disputed in part. For example, UMF No. 2 states: “In April 2016, Plaintiff and other officers, including Officers Michael Little and Rory Sheehy, first went out to Lure restaurant, then a bar called Harry’s Bar, and after, a bar called the Wildcat, to celebrate the end of her field training.” Plaintiff responded that the UMF was disputed in part. However, a review of the evidence submitted clearly shows that plaintiff gave testimony, under oath at deposition, that the statement set forth in the UMF is true. This practice of plaintiff is pervasive throughout her responsive separate statement. (“PSS”) The fact that plaintiff added additional facts to somehow attempt to create a triable issue is counter-productive and the result is that the court was required to spend an inordinate amount of time carefully reviewing, in detail, all the evidence claimed to be disputed to determine whether an UMF was reasonably disputed. Further, as to some of the UMF’s, plaintiff misstates the evidence. For example, UMF No. 8 states: “Plaintiff admits that she did not complain about these purported incidents to anyone at The Regents until more than two years later, in November 2018, when filing her Title IX complaint.” In response, plaintiff asserts: “Disputed. Siegel reported Michael’s conduct to Sargent Ryan Smith. There was a direct line of sight from where officer Rubio and Sergeant Smith were standing in relation to Michael’s assault of Siegel, and both saw it. Notably, Smith commented on the inappropriate interaction and what he saw.” Plaintiff’s cited evidence does not show that she reported the incidents to Smith at all. She testified that she reported to him, in the work context, because he was a Sergeant. Further, whether any of the alleged incidents were witnessed by others is not responsive to the UMF. The UMF refers to the actual reporting, by plaintiff, of the incidents. In response to the direct question at deposition: “After what had happened at Wildcat, did you tell anybody at UC Santa Barbara Police Department about Mike Little’s conduct towards you?” Plaintiff replied: “Not until, I believe it was 2018.” Also at deposition, the following exchange occurred: Question - “Okay. And correct me if I’m wrong, the first time you put the incident that occurred at Wildcat in writing was sometime in 2018 to Title IX?” Answer - “Yes, I believe that’s correct.”

Most of the UMF’s are not reasonably disputed.

Plaintiff sets forth 108 additional facts (“PMF”) which she contends are material to the present motion. By way of reply, Regents does not dispute the majority of plaintiff’s additional facts.

            Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff sets forth six objections to Regents’ evidence. The court need not rule on the objections because the objected to evidence is not material to the disposition of this motion.

Regents sets forth 44 objections to plaintiff’s evidence. Objections 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, and 41 are overruled.

Objections 5, 9, 20, 34, 35, 38, 39, 40, 42, 43, and 44 are sustained.

            Relevant Timeline 

As established by the UMF and PMF the following timeline is relevant to the present motion. Some of the facts contained in the timeline are admitted by both parties and some are disputed.

June 20, 2015: plaintiff was hired by Regents hired plaintiff. (UMF, 1.)

In April 2016, upon plaintiff completing her probationary period, plaintiff’s supervisor set up an event where plaintiff, Little, Sheehey, Rubio, Smith, and other officers went to Lure Restaurant, Harry’s Bar, and then the Wildcat Bar to celebrate. (UMF, 2; PMF, 8, 9, 10.) While at Harry’s Bar, Sheehey pulled Smith aside and told him that he was going to have sex with plaintiff. (PMF, 11.) Smith told plaintiff what Sheehey had said shortly thereafter. (PMF, 12.) Little told plaintiff about his personal life, including his ex-wife, how many times he had other relationships with women, and how he did not believe in monogamy. (PMF, 13, 14.) At the Wildcat Bar, Little approached plaintiff and put his hand on plaintiff’s lower back and buttock, pulled her close, and attempted to kiss her. (UMF, 4; PMF, 16.) In response, plaintiff immediately left the dance floor. (PMF, 17.) In response, Little began to glare at plaintiff making her feel intimidated. (UMF, 5; PMF, 18.) Smith commented on the interaction but did nothing to address it. (PMF, 21.) While still at the Wildcat Bar, Sheehey approached plaintiff, pushed her up against the wall, kissed her, and bit her lip. (UMF, 6; PMF, 22.)

“Shortly after the incident at the Wildcat bar in 2016, Siegel was approached by Lieutenant Mark Signa (“Signa”) while on duty and [he] questioned her personal life, which made her feel uncomfortable. These questions included inquiries about how things were going at home, if she was still married, and if she was dating or seeing anyone. Additionally, Signa stated, ‘ “You know how things turn out for women.” ’ “ (PMF, 27.)

Not long after the interaction with Signa, plaintiff was invited to dinner by Tiffany Little. At dinner, Tiffany Little asked plaintiff about her personal life, told plaintiff that she had heard rumors about plaintiff being in a relationship with someone from the department and warned plaintiff that it is never the men that get into trouble, it is always the women that do. (PMF, 28, 29, 30.)

Men in the department would make inappropriate comments about women. (PMF, 31, 32.)

In Fall 2016, Lieutenant Romero texted plaintiff about how cute he thought a civilian who was doing a ride along with plaintiff was and told plaintiff that she should convince the civilian to join the department because she was attractive. (PMF, 35.) During the same day, plaintiff received a text message from Romero requesting that plaintiff send him a picture of her “side boob” while on vacation. (PMF, 37.) Plaintiff immediately objected to the request. (PMF, 38.) Plaintiff complained to Smith about the text messages, but no action was taken, and plaintiff continued to be objectified. (PMF, 39, 40.)

In Summer 2017, Smorodinsky attempted to kiss plaintiff at work. (PMF, 41.) Plaintiff stopped Smorodinsky and told him that she did not want to do that. (PMF, 42.) Despite plaintiff’s rejection of Smorodinsky’s advances, he continued in his attempts at a relationship with plaintiff. (PMF, 43.)

From 2016 through 2019, plaintiff continued to receive harassing and false comments made about her sexuality. (PMF, 45.) Among the false comments were Little claiming that plaintiff was receiving preferential treatment because she was engaging in sexual relationships with other officers, that she was a “slut,” and alleged that her advancement was not due to her earning it on the merits. (PMF, 48.) The comments led to people within the department claiming that plaintiff’s presence in the department was a problem and that plaintiff needed to either be fired or quit. (PMF, 49.)

In Fall 2017, plaintiff complained to Romero about Little’s conduct and the statements of her colleagues, and Romero responded that he was already aware. (PMF, 50.) Despite plaintiff’s complaints, plaintiff was assigned to Little as her corporal and forced to ride in a car with him on patrol. (PMF, 51, 52.)

In early 2018, plaintiff received a text message from a supervisor, Jeff Lubo, with Lubo proclaiming that he had feelings for her, that she reminded him of girls that he had always wanted in high school, and that he would never be able to end up with girls like plaintiff, but wanted to know what it was like to be with someone like her. (PMF, 57.)

Also, around early 2018, plaintiff received a text message from a Sergeant in the department informing her that he had been cheating on his wife with a dispatcher and asked plaintiff if she wanted to hang out after work and have sex with him. (PMF, 59.) The Sergeant solicited sex from plaintiff on multiple occasions. (PMF, 60.)

In 2018, while on a work trip, Carter Peterson attempted to kiss plaintiff without her consent, whereupon she asked him to leave her hotel room. (PMF, 61.)

On numerous occasions, with six different superiors, plaintiff was solicited for an unwelcome sexual relationship. (PMF, 62.)

In November 2018, plaintiff arrived at the scene of a drug investigation where plaintiff sought the assistance of Rubio to apprehend the suspect, but Rubio refused and said, “You’re not a real corporal, I don’t have to do anything you say.” (PMF, 67.)

In August 2018, plaintiff applied for an ancillary position as a forensic analyst that would report to Smorodinsky. (PMF, 71.) After plaintiff applied for the position, Smorodinsky called plaintiff, while she was on duty, and instructed her to come to his house to discuss official police business. (PMF, 72.) At his house, Smorodinsky had plaintiff put her phones and radio in her car, asked her if she was having a relationship with another officer, and told her that he believed they were supposed to be married and have babies. (PMF, 73.) Plaintiff told Smorodinsky that under no circumstances was she interested in rekindling a romantic relationship. (PMF, 74.)

In late 2018, plaintiff complained to Officer Dawn Arviso that Smorodinsky was refusing the give her the forensic analyst position because she refused to have a relationship with him. (PMF, 75.)

On August 22, 2018, Smorodinsky called plaintiff and told her that he did not think plaintiff was a good fit because she was talking to other men and that if things didn’t work out, he would tell her that’s just the way it is. (PMF, 77.) Despite eventually being given the forensic analyst position, plaintiff was precluded from receiving training associated with the position. (PMF, 78.)

Smorodinsky openly shamed people who attempted to associate with plaintiff because plaintiff refused to continue an intimate relationship with him. (PMF, 80.)

In November 2018, plaintiff complained to her supervisor about the harassment, discrimination, and retaliation. (PMF, 81.) Specifically, plaintiff complained that she was being labeled as a “problem child” and a “slut,” but the supervisor dismissively instructed plaintiff to report her concerns to Title IX. (Ibid.)

Plaintiff filed a Title IX complaint in November 2018, but despite attempted communications, no one from Title IX called her back. (PMF, 85.) Plaintiff’s November 2018, Title IX complaint was dismissed within two days without anyone having performed an investigation. (PMF, 87.)

On August 22, 2018, plaintiff complained about Smorodinsky’s conduct to Smorodinsky’s direct supervisor, Lieutenant Rob Romero. (PMF, 92.) Romero warned plaintiff, “I can’t do anything for you if you don’t have a good year and keep your nose clean.” (PMF, 93.)

From 2018 through March 2019, Smorodinsky continued to advise plaintiff’s colleagues that plaintiff was untrustworthy, had no business of being a cop, and was not good at her job. (PMF, 95.)

In December 2018, plaintiff complained to Lieutenant Millard about her working conditions becoming increasingly unbearable to the point it was beginning to have an impact on her emotionally and physically, resulting in symptoms of panic and anxiety while on duty. (PMF, 97.) On February 10, 2019, plaintiff had a panic attack, at work, because of the harassment, and took medical leave. (PMF, 100.)

In March 2019, plaintiff made an ethics point complaint which was forwarded to Title IX. (PMF, 101, 102.) The complaints were found to be unsubstantiated. (PMF, 102, 103.)

In August 2019, plaintiff was notified that her leave would be expiring, and she felt that she was forced to quit because of the continued hostile work environment and receiving unsubstantiated findings of her second Title IX complaint. (PMF, 104.)

At plaintiff’s exit interview, she was advised that Little, Tiffany Little, Miller, Stern, and Reyes were targeting plaintiff to make her working environment so difficult that she would quit or be fired. (PMF, 106.)

First Cause of Action for Hostile Work Environment, Second Cause of Action for Quid Pro Quo Sexual Harassment, and Third Cause of Action for Discrimination on the Basis of Gender

As these three causes of action substantially overlap, they will be discussed together.

Regents argues that these causes of action fail because: (1) The alleged sexual harassment in April 2016 occurred while the officers were off-duty at a non-work related event and that Regents cannot be held liable for conduct occurring off-duty; (2) Romero’s 2016 asking plaintiff to send him a picture of her “side boob,” Smorodinsky’s attempting to kiss plaintiff and telling plaintiff that her promotion to Forensic Analyst was contingent on plaintiff continuing a relationship with him, and Lupo texting plaintiff in 2017 or 2018, while intoxicated, indicating that he had feelings for her, were isolated incidents and insufficient to establish severe or pervasive conduct; (3) Plaintiff did not complain about the incidents until March 2019, at the earliest, and she continued to work at the UCSB PD from April 2016 to February 2019, with no effect on her work performances.

“With respect to sexual harassment in the workplace (see Gov. Code, § 12940, subd. (j)(4)(C)), the prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of a work environment that is “ ‘hostile or abusive to employees because of their sex.’ ” [Citation.] Thus, similar to the federal law’s Title VII, California’s FEHA “ ‘recognize[s] two theories of liability for sexual harassment claims . . . “ ‘. . . quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances . . . [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” ’ ” [Citations.] (Hughes v. Pair (2009) 46 Cal.4th 1035, 1042-1043.)

Government Code section 12923 went into effect on January 1, 2019. It clarified existing law relating to sexual harassment in California.

“The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.

“(a) The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “ ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.’ ” (Id. at 26).

“(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

“(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “ ‘stray remarks doctrine.’ ”

“(d) The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

“(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “ ‘not determinable on paper.’ ” ” (Gov. Code, § 12923, italics added.)

“[W]hile an employer’s liability under the Act for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1048-1049.) The evidence before the court shows that there are triable issues of fact regarding conduct that occurred both at the workplace and away from the workplace.

Regent’s argument that comments made by co-workers, to the extent they did make comments, were isolated incidents is unpersuasive. Assuming the truth of plaintiff’s testimony and evidence presented, the behavior was far from isolated. It appears that the comments and other harassing gender-based behavior from the male officers was a regular occurrence. A reasonable person in plaintiff’s position, considering all the circumstances, could perceive the workplace as hostile or abusive.

Assuming the truth of plaintiff’s evidence, the harassment and other inappropriate conduct, both at work and outside of work hours, was pervasive. Viewing the evidence presented in the light most favorable to plaintiff, a reasonable trier of fact could certainly conclude that plaintiff’s working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign. A reasonable trier of fact could also conclude that the conduct complained of was sufficiently severe or pervasive to interfere with a reasonable employee’s work performance and seriously affect the psychological well-being of a reasonable employee. Finally, it is a triable issue of fact as to whether Smorodinsky’s conduct surrounding plaintiff being eventually given the forensic analyst position constituted quid pro quo sexual harassment. It is of no consequence that plaintiff was given the job despite not entering into another romantic relationship with Smorodinsky. What is of concern, assuming the evidence presented at trial supports the allegations, is that Smorodinsky attempted to condition the position on resuming the relationship and then denied training.

Fourth Cause of Action for Retaliation for Engaging in a Protected Activity, and Fifth Cause of Action for Whistleblower Retaliation .

“To establish a prima facie case of retaliation under FEHA a plaintiff must show they engaged in “ ‘protected activity’ ”; the employer subjected the employee to an adverse employment action; and a causal link existed between the protected activity and the employer’s action. [Citation.] To establish a prima facie case of discrimination under FEHA, a plaintiff must show they were a member of a protected class; they were qualified for the position or were performing competently in the position they held; they suffered an adverse employment action, such as termination, demotion, or denial of an available job; and some other circumstance suggested discriminatory motive. [Citation.] Once a plaintiff establishes a prima face case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action.” (Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 397.) “[D]irect evidence of intentional discrimination is rare . . .” (Id. at p. 398.)

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. As relevant here, section 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee “ ‘has reasonable cause to believe . . . discloses a violation of state or federal statute’ ” or of “ ‘a local, state, or federal rule or regulation’ ” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.)

The reporting of harassment is clearly a protected activity under FEHA. Sexual harassment is a violation of multiple state and federal statutes as well as state rules, regulations, and laws. Despite Regents’ arguments, plaintiff’s complaints were about much more than “gossip.” Whether plaintiff waited too long to file her Title IX complaint is not properly determinable on summary judgment or adjudication. It is a fact question for trial.

“A claim for violation of Labor Code section 1102.5 requires “ ‘(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citations.]’ ” [Citation.]” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 591.)

“Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a “ ‘contributing factor’ ” in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Id. at pp. 713-714.)

Regents argues that plaintiff “cannot establish a causal link between her alleged constructive termination in August 2019, and any of her complaints.” (MSJ, p. 18, ll. 16-26.) In support, Regents cites Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 (Wysinger). Regents’ reliance on Wysinger is misplaced. A close reading of that case makes clear that it is a factual question whether there is a causal connection when a lengthy period of time has elapsed between protected activity and retaliatory actions. Likewise, Regents’ reliance on Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327 (Arteaga), is misplaced and inapplicable to the present fact situation.

Viewing the evidence presented, in the light most favorable to plaintiff, a reasonable trier of fact could determine that plaintiff’s superiors discriminated against her based on gender and engaged in retaliation when plaintiff complained about the discrimination and harassment. A reasonable trier of fact could also conclude that plaintiff’s co-workers and supervisors had the intention of forcing plaintiff to resign, due to plaintiff refusing sexual advances and complaining about them, and that they were successful in their efforts.

            Administrative Remedies

Regents contends that plaintiff did not exhaust her administrative remedies prior to filing her complaint. However, Regents argument is conclusory, and it has failed in its burden to show that administrative remedies were not exhausted prior to the filing of the complaint.

Regents’ motion for summary judgment will be denied. Regent’s motion for summary adjudication will be denied.