Moses v. Aerotek Inc.

Background

Aerotek employed Katheryn Moses first as a Recruiter and later as an Account Manager in its San Jose office. Moses reported that senior employee Onyeka Ossai had pursued her and had a sexual relationship with her while also dating another Aerotek employee. After a December 21, 2016 workplace-related incident involving Ossai, Moses told manager Lane that Ossai had engaged in an inappropriate relationship with her and had put his hands on her. Lane initially did not begin a formal investigation and instead urged Moses to work things out with Ossai. Human Resources Manager Sheila Simmons later opened an investigation.

Moses received a disciplinary write-up on January 20, 2017, concerning a sexual relationship with a coworker. Aerotek terminated her employment on January 25, 2017. Aerotek said the termination was based on performance problems, including Moses’s interviews with other companies during Aerotek work hours and her alleged lack of truthfulness when questioned about those interviews. Moses claimed that the termination was retaliation for her report about Ossai.

Moses’s complaint asserted claims under California’s Fair Employment and Housing Act (FEHA) for retaliation and failure to prevent harassment and retaliation, as well as claims under the California Labor Code concerning payroll and personnel records. In her opposition to the motion, Moses clarified that she was not pursuing a harassment or failure-to-prevent-harassment claim and was limiting her FEHA claims to retaliation and failure to prevent retaliation. The motion addressed the FEHA claims and Moses’s request for punitive damages; the opinion does not resolve the records claims.

Summary-judgment standard and evidentiary rulings

Summary judgment is appropriate when the evidence shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment as a matter of law. The court must view the evidence in the light most favorable to the party opposing the motion.

The court sustained Moses’s objections to testimony and witness summaries offered for the truth of what witnesses supposedly said. It nevertheless considered Simmons’s notes for the limited purpose of showing the scope of Simmons’s investigation. The court also sustained Moses’s hearsay objection to Lane’s testimony about what witnesses told him they observed during the December 21 incident.

FEHA retaliation claim

FEHA prohibits an employer from discharging or discriminating against a person because the person opposed conduct forbidden by FEHA or filed, testified, or assisted in a related proceeding. The court applied the burden-shifting framework used for retaliation claims. Under that framework, the employee must first show a basic case of protected activity, an adverse employment action, and a causal connection. The employer then must identify a legitimate, non-retaliatory reason, after which the employee may show that reason was a pretext for retaliation.

Aerotek argued that Moses had not engaged in protected conduct because her report concerned a heated argument between former romantic partners. The court rejected that argument at the summary-judgment stage. It found that Moses reported conduct involving a senior employee’s sexual relationships with at least two more junior employees, that the December 21 incident arose from those relationships, and that Moses felt uncomfortable around Ossai afterward. The court concluded that Moses reasonably could have believed she was reporting discriminatory or harassing conduct covered by FEHA. The court also found sufficient evidence of an adverse action and a causal connection, including the termination, Lane’s alleged anger about the complaint, his statement that the complaint could affect Ossai’s career, and the timing of the termination.

The court found that Aerotek had identified legitimate, non-retaliatory reasons for the termination, including performance concerns, missed morning meetings, interviews during work hours, and alleged dishonesty about an interview. But the court also found substantial evidence from which a factfinder could conclude that those reasons were pretextual. The evidence included the absence of documented performance concerns before 2017, Moses’s December 2016 achievement of a company benchmark associated with a trip to Cancun, Lane’s admission that interviewing with other companies was common and that he had not terminated another employee for interview-related activities, Lane’s handling of Moses’s complaint, his alleged anger, and the close timing between the report and termination.

The court therefore found a factual dispute about Aerotek’s motivation and denied Aerotek’s motion for summary judgment on Claim 1, the FEHA retaliation claim.

Failure-to-prevent-retaliation claim

Moses’s second FEHA claim, as narrowed in her opposition, alleged that Aerotek failed to prevent retaliation. The court explained that this claim requires evidence of retaliation or other covered unlawful conduct, a failure to take all reasonable steps to prevent it, and resulting harm.

Aerotek argued that no unlawful retaliation occurred and that its anti-retaliation policies and complaint procedures were adequate. Because the court found factual disputes that precluded summary judgment on the retaliation claim, it rejected Aerotek’s first argument. The court also found Aerotek’s evidence insufficient to establish at this stage that it took all reasonable steps to protect Moses from retaliation, particularly because Lane did not promptly open a formal inquiry and because disputed facts remained about whether he retaliated against Moses by firing her.

The court denied Aerotek’s motion for summary judgment on Claim 2, the FEHA failure-to-prevent-retaliation claim.

Punitive damages

Moses sought punitive damages based on the alleged FEHA violations. Under the California statute discussed by the court, punitive damages require clear and convincing evidence of oppression, fraud, or malice, and, when the defendant is a corporation, the culpable conduct must involve an officer, director, or managing agent.

Aerotek argued that Moses could not show culpable conduct by a managing agent. Moses argued that Lane and Simmons qualified as managing agents. The court explained that whether an employee is a managing agent depends on the employee’s authority and discretion over decisions that determine corporate policy and is generally a factual question.

Lane was Aerotek’s Director of Business Operations for its San Jose office, and Simmons was Human Resources Manager for the Northwest Region. The court found that both had considerable responsibilities and that whether either had enough authority to qualify as a managing agent required a factual inquiry unsuitable for summary judgment. The court also rejected Aerotek’s argument that Moses could not show oppression, fraud, or malice, citing the record evidence that Lane retaliated against her for reporting about Ossai.

The court denied Aerotek’s motion for summary judgment on Moses’s punitive-damages claim.

Disposition

The court denied Aerotek’s motion for partial summary judgment in its entirety. The order did not decide the ultimate merits of Moses’s claims; it determined that the identified factual disputes prevented judgment for Aerotek at this stage.