Opinion
B316930
11-20-2023
ATUL GANDHI, Plaintiff and Appellant, v. UMA ENTERPRISES, INC., Defendant and Respondent.
McIntyre & Larson, Jeffrey Curran McIntyre and Robert Garcia, Jr., for Plaintiff and Appellant. CDF Labor Law, Todd R. Wulffson, Jeffrey Sikkema and Nancy N. Lubrano for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County, No. BC718023 Curtis A. Kin, Judge.
McIntyre & Larson, Jeffrey Curran McIntyre and Robert Garcia, Jr., for Plaintiff and Appellant.
CDF Labor Law, Todd R. Wulffson, Jeffrey Sikkema and Nancy N. Lubrano for Defendant and Respondent.
ROTHSCHILD, P. J.
Appellant and plaintiff Atul Gandhi appeals from a judgment in favor of his former employer, defendant and respondent UMA Enterprises, Inc. (UMA), following UMA's successful motion for summary judgment on Gandhi's complaint alleging harassment and wrongful discharge claims under California's Fair Employment and Housing Act (FEHA) and a claim for wrongful discharge in violation of public policy. Gandhi argues that UMA's summary judgment showing merely pointed out an absence of evidence to support discriminatory intent-a necessary element of Gandhi's harassment and wrongful discharge claims-rather than making the affirmative evidentiary showing necessary to shift the burden of production to Gandhi. We agree, and on that basis conclude the court should have denied the motion as to these claims without requiring any evidentiary showing from Gandhi. We thus need not address the additional arguments Gandhi raises on appeal regarding the court's summary judgment ruling on these claims.
Accordingly, we reverse the judgment and the order except to the extent it grants summary judgment on Gandhi's retaliation claim, a ruling Gandhi does not challenge on appeal.
FACTUAL BACKGROUND
A. Gandhi's Lawsuit Against UMA
Gandhi sued UMA under FEHA for wrongful discharge, retaliation, and harassment, as well as under the common law for discharge in violation of public policy. The complaint alleged that Gandhi was an "exemplary" employee of UMA for approximately 17 years, until he was "wrongfully terminated, by constructive discharge" in January 2018. Specifically, he alleged that "around mid-2017," UMA "began to subject [Gandhi] to unfair and unreasonable work demands, demands intended to so overwork and overload [him] as to make it impossible to reasonably continue his employment as the warehouse manager," and "to create additional stress to cause him to resign by . . . unfairly criticiz[ing] [him] . . . [and] creat[ing] a hostile environment." Gandhi's complaint alleged this conduct forced him to resign on January 4, 2018.
Gandhi is a Hindu of Indian ancestry and national origin and was approximately 53 years old at the time of his alleged constructive discharge. The complaint alleged that his constructive discharge was part of a larger effort by the management team that came into power around mid-2017 to "eliminate" all employees of Hindu and/or Indian descent. He also alleged that UMA constructively discharged him because of his age and as a form of retaliation.
UMA answered the complaint and the parties conducted discovery.
B. Summary Judgment Briefing
1. UMA's summary judgment motion
In June 2019, UMA moved for summary judgment/adjudication, arguing that no triable question of fact existed on various issues, including whether UMA had acted with the requisite discriminatory intent in its treatment of Gandhi.
UMA primarily supported its motion with excerpts from Gandhi's deposition. Therein, Gandhi testified that he had resigned after a meeting with his direct supervisor, Vice President of Operations Jim Muhe, regarding the company's approach to overtime. This meeting was not materially different from numerous other meetings Gandhi had had with Muhe in the end of 2017 regarding Gandhi's dissatisfaction with the company's approach to overtime, and "unnecessary email, unreasonable deadlines, too much work, [and] micromanagement by corporate."
UMA also cited deposition testimony in which Gandhi acknowledged he did not personally complain to UMA about being mistreated based on his religion, age or ancestry and that he was neither named in, nor involved in preparing, a November 2017 anonymous complaint his co-worker Jalandhar Bidye told Gandhi that Bidye had sent to Ira Starr, the managing director of a private investment firm overseeing UMA. Gandhi initially characterized this as a complaint about the treatment and targeting of Indians that Bidye had submitted "on behalf of" Gandhi, Bidye, and another Indian employee, Amrick Singh, but later testified that he had never read the document, that Bidye had described it as "anonymous," and that Gandhi's "name wasn't on [the complaint]."
Gandhi further acknowledged that he had never been subjected to harassing comments or other abusive conduct regarding his age, religion, national origin, or ancestry. He testified that the only "facts . . . upon which [he] base[d] [his] belief that [he was] mistreated at UMA because [he is] a Hindu," because of his age, or because he had Indian ancestry were that (1) Gandhi heard from Bidye that Muhe had told Bidye that UMA's president had said to Muhe that he wanted to get rid of all the Indian employees; and (2) several other Indian employees, including Bidye, had left or been fired in 2017 and 2018. UMA argued that Muhe's statements were inadmissible double hearsay, and that the departures of other Indians could not create a triable issue as to discriminatory intent, because Gandhi admitted during his deposition that White and Hispanic employees had left the company in 2017 as well. UMA also cited testimony Gandhi gave to the California Unemployment Insurance Appeals Board, in which Gandhi described the circumstances leading to his departure from the company without ever mentioning his race, age, or religion.
Gandhi gave this testimony in connection with his ultimately successful appeal from an initial denial of unemployment benefits. At the hearing, the board determined that Gandhi was entitled to benefits because he acted as "a reasonable person genuinely desirous of retaining employment," and that UMA's conduct was "abusive and hostile" and that Gandhi "had good cause for leaving employment."
2. Gandhi's opposition
In opposing summary judgment, Gandhi submitted his own deposition testimony describing various changes to his working environment and workload after the change in management in 2017. Specifically, he testified that once the new management arrived, he was given many new assignments, including the work of low-level warehouse employees, such as obtaining mops for the maintenance department, making shipping labels and monitoring the parking lot to make sure cars were parked in the right spaces; treated in a dismissive and/or harsh manner and unreasonably criticized, often with angry or raised voices; given unreasonable tasks and deadlines; denied the right to give employees the overtime they needed to meet demands; and forced to increase the number of hours he was working per week from 40-45 hours to 60 hours or more. He testified he was denied assistance when he raised the difficulties he was having with these new and unmanageable work demands.
As evidence of discriminatory intent, he offered a declaration of Bidye. Bidye's declaration describes how Muhe had told Bidye and his coworker Varun Maholtra that UMA president James Buch had told Muhe at a meeting of corporate personnel that Buch intended to eliminate the Indian employees and the Indian culture at UMA. The declaration described the meeting at which Muhe heard this statement as involving Buch, Chief Operating Officer Will Pack, Muhe, and Darlene Perrez, UMA's human resources representative. "Muhe told [Bidye] that he was giving [Bidye] notice of [Buch's] comments as a warning and told [Bidye] [he] should be careful in [Bidye's] interactions with management."
The Bidye declaration further states that Bidye learned Muhe left the company in March 2018, and at some point thereafter, "Muhe informed [Bidye] that he had decided to bring a lawsuit against the company because his termination from UMA . . . was, at least in part, the result of his refusal to go along with . . . Buch's plan to discriminate against the Indian employees. He told [Bidye] that he had retained an attorney to handle the matter . . . [and] gave [Bidye] a copy of the letter . . . Muhe said his attorney had prepared and sent to UMA." The declaration attached what it identified as the letter Bidye received from Muhe, an undated document entitled "demand to settle" that is addressed to counsel for UMA. (Capitalization omitted.) The document does not contain anything indicating it had been sent or received.
Finally, the declaration states that Bidye was terminated in May 2018 during a meeting with Pack and Perrez, and that during that meeting Pack "indicated that [Bidye's] termination was not related to [his] performance." According to Bidye, Perrez then "walked [him] to [his] car . . . [and] said that '[she had] no idea why they[ ] [were] terminating [him].'" Gandhi proffered the deposition testimony of Perrez stating she did not know why Bidye was terminated.
Gandhi also offered the deposition testimony of another of his former coworkers at UMA, Varun Maholtra, in which Maholtra testifies that Muhe told Maholtra and Bidye that "[Muhe] overheard [Buch] saying that [Buch] want[ed] to change the culture of the company" and that "[Muhe] implied [that] culture meant Indian culture."
Finally, Gandhi identified testimony that he had been replaced by a substantially younger non-Indian, and that around the same time, a number of other competent long term Indian Hindu employees were terminated or resigned and replaced with non-Indians. To support discriminatory intent based on religion, Gandhi argued that the "Indian culture" he claimed UMA was targeting could easily be construed to include the Hindu religion. To support retaliatory motive, Gandhi identified the timing of his constructive discharge, which occurred soon after Bidye made his anonymous complaint.
C. Muhe Declaration and Efforts to Depose Muhe
In January 2020, Gandhi moved to compel the deposition of Muhe, who had refused to be deposed. The court ultimately granted the motion, but Muhe still did not comply, and was never deposed. In its briefing opposing the motion to compel, UMA produced for the first time a declaration dated October 2018, in which Muhe acknowledges reading Gandhi's deposition transcript, and declares as follows: "During my entire career at UMA, I never made a statement regarding wanting to terminate employees of Indian ancestry, or to eliminate their culture in the workplace; and I never heard anyone at UMA make any such statement about employees of Indian ancestry or Indian culture. [¶] Specifically, I never heard . . . Buch say he 'wanted to eliminate all the Indian employees from the company' or anything similar. I also never talked to Jalandhar Bidye or Atul Gandhi about hearing such a statement."
Gandhi filed a supplemental opposition to UMA's summary judgment motion, attaching the Muhe declaration UMA had submitted in connection with Gandhi's efforts to secure Muhe's deposition, as well as other declarations explaining Gandhi's unsuccessful efforts to depose Muhe. The supplemental opposition argued that "it would be unfair for [Gandhi] to have the matter summarily adjudicated" because Gandhi was unable to depose Muhe, despite good faith diligent efforts.
D. Summary Judgment Ruling
On November 4, 2021, the trial court granted UMA's motion for summary judgment. The court concluded there was no triable issue of fact as to Gandhi's retaliation claim, a ruling Gandhi does not challenge on appeal. The court granted the motion as to the remaining claims as well, concluding UMA had met its initial burden of showing Gandhi could not establish the requisite discriminatory intent element of these claims. The court based its decision on the following evidence: (1) Gandhi's testimony that he "never complained to his supervisors that he was being harassed or discriminated against because of ancestry, age, or religion"; (2) Gandhi's failure to "claim[ ] any mistreatment based on ancestry, age, or religion" in his testimony to the California Unemployment Insurance Appeals Board; and (3) "evidence that, in 2017, in addition to individuals of Indian ancestry, other individuals of non-Indian ancestry left the employment of defendant."
The court further concluded that Gandhi had failed to meet his burden to establish a triable issue of fact as to discriminatory intent with either the purported statements by Muhe or the evidence of other Indians leaving in 2017. The court determined the purported Muhe statements were inadmissible hearsay. It also rejected the departures of other Indian employees as sufficient to show discriminatory intent, absent evidence that these employees were "replaced by a nonminority member no more qualified than [they]" or that they were "fired when nonminority co-workers similarly situated were not fired." (Mixon v. Fair Employment &Housing Com. (1987) 192 Cal.App.3d 1306, 1318.) The court similarly concluded that UMA replacing Gandhi's with a younger non-Indian, non-Hindu individual was insufficient to create a triable issue as to intent, absent additional evidence that the individual was less qualified than Gandhi.
Gandhi timely appealed from the judgment following the court's order granting UMA's motion for summary judgment. On appeal, as noted, he does not challenge the portion of that order granting summary judgment on his retaliation claim.
DISCUSSION
A. Summary Judgment Legal Framework
The party moving for summary judgment bears the initial burden of making a prima facie showing that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); see Code Civ. Proc., § 437c, subd. (c).) Only if that party makes such a showing does the burden shift to the opposing party to produce evidence to challenge the moving party's evidence. (Aguilar, supra, at p. 850; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).)
Where, as here, the moving party is a defendant, it may make a showing sufficient to shift the burden by establishing the plaintiff cannot prove one or more elements of a claim. (See Code Civ. Proc., § 437c, subds. (o)(1)-(2) &(p)(1)-(2); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356 (Guz).) But in seeking summary judgment on this basis, the defendant must make an affirmative evidentiary"' "showing" that one or more elements of the cause of action cannot be established.'" (Saelzler, supra, 25 Cal.4th at p. 768; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, citing Saelzler, supra, at p. 768.) Our Supreme Court has stressed that merely "point[ing] out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" will not suffice, and that the defendant must instead present evidence from which the plaintiff's inability to prove his claim can be inferred. (Aguilar, supra, 25 Cal.4th at p. 854, fn. omitted.) For example, a defendant my offer as such evidence"' "factually devoid" discovery responses from which an absence of evidence can be inferred.'" (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101 (Andrews).) Therefore, a plaintiff's responses to form discovery requests "requir[ing] plaintiffs to state all of the facts which supported [an element of the claim]" that cited beliefs, not facts, and merely "reserved the right to further respond" have been deemed sufficient to shift the summary judgment burden. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580.)
Our review of a trial court's grant of summary judgment is de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We therefore independently analyze the evidence in the record that was presented to the trial court, except that to which objections were properly sustained, under the same summary judgment legal framework applicable in the trial court. In so doing, "[w]e liberally construe the evidence in support of the party opposing summary judgment [citation], and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under applicable legal standards." (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)
B. Discriminatory Intent
Gandhi's FEHA discrimination, FEHA harassment, and common law wrongful discharge claims require that UMA acted with discriminatory intent; that is, UMA took the adverse action at issue because of his membership in a protected class (his race, his religion, or his age). (See Guz, supra, 24 Cal.4th at p. 355 [elements of FEHA employment discrimination claim]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [elements of FEHA harassment claim]; Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-1235 [elements of wrongful discharge in violation of public policy].)
On appeal, Gandhi argues UMA did not make the requisite affirmative evidentiary showing that Gandhi cannot establish discriminatory intent, and instead merely argued that the evidence in the record does not establish this intent. We agree.
UMA counters that it made a sufficient evidentiary showing to shift the burden of production to Gandhi on this issue. First, it identifies Gandhi's deposition testimony that, prior to the lawsuit, he had never complained about anyone at UMA mistreating him based on his race, religion, national origin, or age. But that Gandhi did not complain does not support an inference that UMA did not act with an improper motive.
UMA does not argue that other evidence the court identified in its ruling shifted the burden to Gandhi on discriminatory intent.
Second, UMA identifies Gandhi's deposition testimony in response to requests that he identify facts supporting his claims that UMA acted with discriminatory intent. UMA argues that this deposition testimony is akin to "factually devoid" responses to written discovery requesting a plaintiff identify all bases for a particular contention, because none of the bases Gandhi identified in his responses was supported by admissible evidence. (Andrews, supra, 138 Cal.App.4th at pp. 106-107.) According to UMA, this constituted the "[requisite] evidence . . . that the plaintiff does not possess, and cannot reasonably obtain, needed evidence[,]" rather than merely "point[ing] out" that the plaintiff does not possess such evidence. (Aguilar, supra, 25 Cal.4th at p. 854, fn. omitted.)
We disagree that UMA may rely on Gandhi's deposition responses to meet its initial burden in the way it might have relied on interrogatory responses to similar questions. Even assuming arguendo that the deposition questions at issue were solely aimed at identifying the bases for factual contentions, rather than legal conclusions, Gandhi's responses to deposition questions may have been based only on his personal knowledge. (See Evid. Code, § 702, subd. (a) ["the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter"]; Code Civ. Proc., § 437c, subd. (d) ["[s]upporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations"].) Interrogatory responses, by contrast, draw from a much broader source than just what a single individual personally knows and can recall while sitting for a deposition. Thus, responses to deposition questions about a plaintiff's bases for factual contentions are alone not responses to discovery "sufficiently comprehensive," such that, if factually devoid, they may "lead to the inference that [a] plaintiff[ ] [can]not prove [that contention]." (Andrews, supra, 138 Cal.App.4th at p. 107; see also Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1442 [defendant's summary judgment showing must "allow an inference that [the] plaintiff[ ] neither possess[es], nor reasonably can obtain, any evidence" to create a triable question].) Gandhi's deposition testimony is thus insufficient to meet UMA's "initial burden of presenting evidence sufficient to make a prima facie showing that a triable issue of fact [does] not exist," and did not shift the burden to Gandhi. (Andrews, supra, at p. 107; see ibid. ["[i]f plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses"].)
C. Constructive Discharge
UMA argues that we may affirm the judgment on an alternative basis that UMA raised in its motion, but the trial court did not address in the summary judgment order: that no triable issue of fact exists as to whether Gandhi was constructively discharged. We disagree with UMA's alternative argument. When viewed in the light most favorable to Gandhi, his testimony describing the changes in his working conditions, if credited by the trier of fact, creates a triable issue as to whether his "working conditions . . . were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) It is at least possible that the trier of fact might consider the conditions Gandhi contends" '[gave] rise to [his] resignation'" to be" 'sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.' " (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827.) This is all that is required to establish a triable question of fact.
The court thus erred in granting UMA's motion for summary judgment as to all claims except the retaliation claim. Accordingly, we reverse the judgment.
DISPOSITION
We reverse the judgment and the order granting UMA's summary judgment motion except as to the retaliation claim.
The parties shall bear their own costs on appeal.
We concur: CHANEY, J. BENDIX, J.