Only part of the original document is included in this sample.]
Attorney for Plaintiff
LORNA GRAY
LORNA GRAY,
Plaintiff,
vs.
STATE FOAMWARE ASSOCIATION, JOE BLACK, LARRY JONES, MARTHA BROWN and DOES 1-20, inclusive,
Defendants.
/
Case No. 12345
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Date:
Time:
Dept:
Disc. Cutoff:
Motion Cutoff:
Trial date:
FACTS
In 2007, defendant State Foamware Association, through its Director of the Department of Information and Development, defendant Joe Black, offered plaintiff a position as a supervisor in that Department. According to the written offer of a position, plaintiff would, among other duties, process and oversee the vacation and overtime requests for secretaries in that department. As a supervisor, she came within SFA's supervisory and classified confidential staff employment policy. HREF="#N_1_">(1)
Plaintiff worked in that capacity for four years. She was paid a salary of approximately $53,000 a year. She also received other benefits, including travel pay and an expense account. Her total compensation was about $75,000 a year.
Plaintiff received high marks for her performance as the Information and Development supervisor. She received few performance appraisals, but SFA employees knew that an absence of evaluations reflected an absence of areas that needed critical improvement. Those evaluations she did receive were positive.
Plaintiff and defendant Black nonetheless had substantial differences during this period. Defendant Black was frequently intoxicated, at which times he groped at plaintiff, including by putting his hands on her breasts. After plaintiff complained in July 2008 to SFA executive director Larry Jones about defendant Black's drinking, Black cut back on the amount of work plaintiff was assigned. He also refused to support her exercise of her supervisorial authority over the secretaries in the department. At one point, plaintiff asked Jane Smith, one of those secretaries, to copy documents required for a meeting later that day. Smith refused first to take the documents to the photocopying department and then to pick them up. Defendant Black refused to take any action to demonstrate plaintiff's authority to Ms. Smith or to any other secretary.
In August 2010, Information and Development became a higher-level department, and defendant Black became a higher-level SFA associate executive director. Plaintiff retained her position as a supervisor but she was the only mid-level supervisor. On May 9, 2013, plaintiff again requested a promotion, which defendant Black endorsed to Jones. Jones asked Joe Green, manager of the Department of Human Resources Management, to review the request, and Green recommended that the request be denied.
On September 24, 2013, plaintiff asked that her request be re-evaluated. Black passed the request along to Jones, who stated that he could not consider the matter further until after the company's annual meeting. On December 3, 2013, Jones told plaintiff that he was turning down her request for a promotion because she was not performing supervisory duties.
Plaintiff responded to the news that she was not actually a supervisor by consulting attorney Liza White. On March 24, 2014, Ms. White wrote defendant Jones a demand letter in which she outlined causes of action for breach of contract, negligence, and retaliation. This letter caused defendant Black to announce that he had had it with plaintiff, that he would not give her any more work, that he did not want to share office space with her, and that he was tired of plaintiff's gossiping about his womanizing and drinking. On April 5, 2014, Ms. White wrote SFA president Martha Brown stating that defendant Black's action constituted unlawful retaliation. SFA's cabinet and board of directors live throughout the state of California; to ensure that each understood the organization's treatment of plaintiff, Ms. White sent a copy of the letter to each one at home.
Ms. White received their addresses from plaintiff, who provided her with a directory of the names. Nothing on the directory stated that the information was confidential. Plaintiff knew that SFA had a policy preventing vendors and members from acquiring the names and addresses, but no one ever told her that SFA had a policy against their disclosure to its employees or that a policy prohibited its employees from using the information.
Defendants nonetheless acted shocked. Although plaintiff only admitted providing the information to Ms. White, defendant Black told Brown that she had admitted to stealing the information. On May 2, 2014, Green issued a written reprimand to plaintiff. At the same time, another supervisory employee reported that plaintiff had told her about Black's earlier sexual harassment of her. Although plaintiff insisted that she did not want to pursue the allegations of sexual harassment, SFA's management said that she could not work under Mr. Black while it investigated them.
Plaintiff was therefore transferred nominally to the Finance and Research Department. In actuality, she was given very little to do. Although she still goes to work each day and receives a salary, she spends most days doing nothing but making a rare photocopy. Although her salary has remained the same, she has lost her travel pay and expense account.
ARGUMENT
1. The standard for granting summary judgment
Summary judgment shall be granted if all the papers submitted show there is no triable issue of material fact and that the moving party is entitled to a judgment as a matter of law. Code Civ. Proc. §437c(c). A defendant is entitled to summary judgment if the record establishes that none of the plaintiff's asserted causes of actions can prevail as a matter of law. Molko v. Holy Spirit Ass'n (1988) 46 CAl.3d 1092, 1107. A defendant moving for summary judgment must conclusively negate a necessary element of the plaintiff's case and show there is no material issue of fact that requires a trial. Ibid.
The moving defendant has the burden of introducing evidence that the plaintiff's action is without merit on any legal theory. Hulett v. Farmers Insurance Exchange (1992) 10 Cal.App.4th 1051, 1064. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. Code Civ. Proc. §437c(o)(1). But if the defendant fails to meet that burden, the adverse party has no burden to demonstrate the claim's validity, and the court must deny the motion. Hulett, supra, 10 Cal.App.4th at 1064.
Instead of introducing evidence that would negate the plaintiff's action, a moving defendant may introduce the plaintiff's own factually devoid discovery responses to demonstrate that it has no case. Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 589-593. The burden of proof would then be on the plaintiff to introduce evidence that would show a triable issue of material fact. Id., at 593. But the defendant does not meet its burden merely by asserting that the plaintiff has no evidence. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186. Instead, the defendant must submit discovery responses that would conclusively foreclose any cause of action. Id. at 186-187.
When no or insufficient affidavits or other evidence is submitted to demonstrate the absence of an issue of material fact, the court may treat the motion as in legal effect one for judgment on the pleadings. White v. County of Orange (1985) 166 Cal.App.3d 566, 569. In that case, the motion performs the same function as a general demurrer. Ibid. A general demurrer will not test whether a complaint is ambiguous or uncertain or states essential facts only inferentially or conclusorily. Johnson v. Mead (1987) 191 Cal.App.3d 156, 160. The defendants' failure to challenge those defects by way of special demurrer waives them. Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994.
2. The supervisory employee policy's arbitration clause does not require the employee to arbitrate.
When interpreting a contract calling for arbitration, the court should give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made. Victoria v. Superior Court (1985) 40 Cal.3d 734, 744. A form arbitration contract should be construed against its drafter. Ibid. No policy compels persons to accept arbitration of controversies they have not agreed to arbitrate. Ibid.
The arbitration contract in this case shows that the arbitration provision takes effect only at the employee's option. It states that the employee has the right to submit any dispute to an internal grievance procedure; it does not state that the employee must do so. The employer or the employer's agent has no corresponding right to arbitrate the dispute against the employee's wishes. Rather than create a binding mechanism, the policy's arbitration clause only creates an inexpensive, informal means by which an employee may resolve disputes.
Although arbitration agreements written in ostensibly permissive language have been held to be mandatory when the contract requires it, this contract does not require it. In Service Employees International Union, Local 18 v. American Building Maintenance Co. (1972) 29 Cal.App.3d 356, the contract stated that if the parties did not resolve a dispute within five days, they could by mutual agreement extend the time or submit it to arbitration. The court held that the disputes were arbitrable at either party's demand. Id., at 359. Any other interpretation would only allow the parties to agree to that to which they could agree anyway, leaving the provision without legal effect. Ibid. An arbitration clause that maintains the parties' right to a jury trial, on the other hand, will be given effect. Titan Group v. Sonoma County Valley Sanitation Dist. (1985) 164 Cal.App.3d 1122, 1128-1129. Because this arbitration provision gives plaintiff and plaintiff alone the right to choose arbitration, it does not require her to do so.
3. Plaintiff has suffered the loss of the wages she would have received if she had remained in a supervisory position.
Defendants argue that plaintiff has suffered no injury arising from the breach of her employment contract. But she does not make a salary commensurate with her position. The contract states that she will be a supervisor in the Information and Development department. As a supervisor in that department, she was entitled to the same salary as other higher-level employees. She has continued to suffer injury in the amount of the difference between what she should be making as a supervisor in a higher-level department and what she actually is making.
Plaintiff has, moreover, lost significant benefits since transferring from Information and Development. She has lost her travel pay and her expense account, worth almost $50,000. Although defendants assert in their statement of undisputed facts that plaintiff has admitted to losing no benefits, their citations do not support that conclusion. At her deposition, plaintiff was only asked whether she was told at the time of her transfer that she would be losing benefits, not whether she actually lost them. In the requests for admissions that defendants served, plaintiff expressly denied receiving the same benefits after the transfer as before.
4. Defendants have introduced no evidence that would show that plaintiff cannot establish her second cause of action.
Defendants have argued that plaintiff has not adequately pleaded an oral contract by not stating the contract's exact terms. Because any defect lies in plaintiff's failure to specifically plead, challenging it would require a special demurrer. Because defendants did not specially demur, they have waived any defect. Hooper, supra, at 994.
Defendants also argue that plaintiff has not alleged a breach of the contract. Plaintiff has alleged that defendant represented she would not be demoted or disciplined without good and sufficient cause. Plaintiff was both demoted and disciplined. A reassignment constitutes a demotion if the employee can show that she receives less pay, has less responsibility, or is required to use a lesser degree of skill than in her previous assignment. Hooks v. Diamond Crystal Specialty Foods, Inc. (10th Cir. 1993) 997 F.2d 793, 799. Because plaintiff's responsibilities have decreased from a supervisory position to virtually nothing, she has been demoted.
Her discipline and demotion were, furthermore, without cause. The facts do not support defendants' argument that the plaintiff disclosed confidential, proprietary information contrary to association policy. Actually, the only policy the association had regarding the officers' and directors' addresses was to prevent vendors and members from using it. No one ever said that the employees could not use the addresses themselves.
The argument that the addresses were somehow proprietary information is contrary to law. Proprietary information is that protectable under state trade-secret law. Black's Law Dict. 6th, p. 1219. Trade secrets include information that derives independent economic value from not being generally known to the public and that is the subject of efforts reasonable under the circumstances to maintain its secrecy. Civ. Code §3426.1. The information must give the one possessing it an advantage over competitors who do not know or use it. Vacco Industries, Inc. v. Van den Berg (1992) 5 Cal.App.4th 34, 50. If the information does not give its holder a commercial advantage over competitors, it is not a trade secret. Religious Technology Center v. Wollersheim (9th Cir. 1986) 796 F.2d 1076, 1089-1090. Defendants want to keep the addresses secret so that vendors and members do not bother them at home, not because it gives them some sort of economic advantage over competitors. Because the information is not a trade secret, it is not proprietary.
5. Plaintiff has stated a cause of action for breach of an implied contract not to demote or discipline without good cause.
Defendants again try to convert this motion into a special demurrer. They argue that plaintiff has pleaded no facts that would support an implied contract, but plaintiff has pleaded that the contract exists. They have waived any objection that she has not pleaded the facts on which that contract was based.
Defendant also argues that all of its actions have been within its rights as an at-will employer. But by the implied contract, defendant ceased being an at-will employer. Defendant's argument and citation of Holland v. Bank of America (S.D.Cal. 1987) 673 F.Supp. 1511, is nothing but an attempt to deny all the law that has developed from Foley v. Interactive Data (1988) 47 Cal.3d 654, 676. Foley upheld an implied-in-fact contract not to terminate without good cause. The supreme court has more recently held that an implied-in-fact contract can also include a promise not to demote without good cause or any other condition of employment the parties choose to include. Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 464, 470.
6. A triable issue of fact exists as to whether defendants' proffered reason for plaintiff's reassignment is a mere pretext.
Ordinarily, a plaintiff making a sexual discrimination claim must establish that adverse action has been taken against her on account of her sex. University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1035. On a motion for summary judgment, the moving party has the burden of showing that the plaintiff cannot establish an element of the cause of action, in this case the discrimination. Id., at 1036. If the plaintiff has met her burden, it shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the action. Id., at 1035. The plaintiff then may show that those reasons were mere pretext. Ibid.
Here, defendants have not met their burden of showing that plaintiff cannot establish discrimination. Although defendants assert that there was no discrimination, they introduce no evidence, whether by way of declaration or by way of plaintiff's discovery response, to show a lack of discrimination. Defendants must therefore show a legitimate reason for their action.
Defendants argue that plaintiff's actions gave them sufficient reason to remove her from responsibility. First, they argue that plaintiff had disclosed confidential information. But the information was not confidential, and plaintiff only transmitted it to her attorney for use in her case. They also argue that plaintiff's projected action against defendants supplied them with cause for removing her. But they cannot discern just what that action is. In their statement of facts, they state that it was plaintiff's allegations of sexual harassment, which she subsequently withdrew. In fact, plaintiff never showed any intention of bringing a claim of sexual harassment. Defendants only heard about the incident second hand, after a comment plaintiff made. At no time did defendant ever seek to investigate any harassment. Defendants' argument that they removed her from her position because of sexual-harassment allegations that she did not bring is obvious pretext.
Defendants also argue that they removed plaintiff because she had threatened to file suit. Such an action would constitute wrongful discipline. Employee discipline short of discharge that violates this state's fundamental public policy is tortious. Garcia v. Rockwell International Corp. (1986) 187 Cal.App.3d 1556, 1561. A policy is fundamental when it is "carefully tethered" to a policy delineated in constitutional or statutory provisions. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095. It is public if it involves a duty affecting the public at large, rather than being a purely personal or proprietary interest of the plaintiff or employer. Foley, supra, 47 Cal.3d at 669-670.
Defendants admit they removed plaintiff because she had threatened litigation, yet private litigation is an aspect of the First Amendment right to petition for redress of grievances. Bill Johnson's Restaurants, Inc. v. N.L.R.B. (1983) 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277. Asserting a constitutional right implicates the public interest sufficient to prevent interference by an employer. See Semore v. Pool (1990) 217 Cal.App.3d 1087, 1097.
In asserting the right, [plaintiff] gives it life. While rights are won and lost by the individual actions of people, the assertion of the right establishes it and benefits all Californians in the same way that an assertion of a free speech right benefits all of us.Ibid.
Defendants' attempt to interfere with plaintiff's assertion of her right to petition would chill employees from asserting their contractual rights in court and constitute wrongful discipline. This purported legitimate reason is therefore only a pretext behind which defendants hide their sexual discrimination.
7. Defendant Black's statement that plaintiff admitted stealing the addresses is false and unprivileged.
Defendants argue that defendant Black's statement that plaintiff admitted stealing the addresses is both true and privileged. But plaintiff did not steal anything. Because defendants had no proprietary interest in the information, there was nothing for her to steal.
Defendant Black's malice toward plaintiff defeats any privilege he might have. Although defendants assert that the statement was privileged as made by one and to one interested in the subject matter, that privilege is only conditional. Sanborn v. Chronicle Publishing Co. (1976) 18 Cal.3d 406, 413. The malice necessary to defeat a qualified privileged is actual malice, established by a showing that hatred or ill will motivated the publication or by a showing that the defendant lacked reasonable grounds for belief in the publication's truth. Ibid. In this case, defendant Black showed much hatred and ill will toward the plaintiff. He resented that she criticized his drinking to other employees and officers, as shown by his refusal to support her authority. Shortly before making the defamatory statement, he threatened to evict her from her office. Because the defamatory statement was false and because defendant Black exhibited ill will to plaintiff, plaintiff has shown a material issue of fact about it.
CONCLUSION
Defendants have not shown that plaintiff has no cause of action. Defendants make only improper objections to the pleading of the Second, Third, and Fifth Counts. Plaintiff has suffered serious harm from defendant's wrongful conduct, including the loss of salary and benefits consistent with her position as supervisor in a higher-level department. Because plaintiff did nothing wrong by transmitting the officers' and directors' addresses to her attorney, defendants cannot discipline her for it. Nor can they discipline or demote her for acting under her right to bring an action. Because defendants have failed to establish that plaintiff has no cause of action, this court must deny the motion.
Dated:
Respectfully submitted,
______________________________
Attorney for Plaintiff
Lorna Gray
FOOTNOTES1. All references to the record have been deleted from this
archival document.