Opposition to Motion for Summary Judgment — Whistleblower Retaliation After a Child Abuse Report

Introduction

Defendant Temple Akiba of Culver City operates a Jewish preschool. Plaintiff Lida Yousefzadeh escaped persecution in Iran and immigrated to the United States. She was hired by Temple Akiba in 2002 and spent 20 years as a teacher's assistant. English was her second language and her English writing was never her strength, but her love for children made her an outstanding member of the faculty for two decades.

Plaintiff had no performance issues in her 20 years of service until after she complained about child abuse. Her yearly reviews gave her positive feedback in all areas of her job. Children and parents often asked specifically to be placed in her class.

Everything changed when a new administrator started at the school in the 2020 school year. At the end of the 2020–2021 school year he abruptly terminated the longest-tenured teacher, telling her she was being terminated because she had worked there too long. The school replaced her with a younger, less experienced teacher.

Plaintiff first raised her concerns with that teacher directly, then in writing to the administration. In a letter dated March 2, 2022, Plaintiff wrote that the teacher was "often extremely abusive toward children by shouting at them, making them sit on a chair at the corner for minimum of 20 minutes, isolating them from all other kids causing emotional trauma due to her iron clad self-made rules and intimidations."

After receiving that letter, the school did not speak to any children or parents about the allegations, and did not report them to any authority for investigation as its own school rules required. Instead, the school began creating a paper trail to terminate its 20-year employee.

The evidence of a manufactured record

The school forged Plaintiff's signature on three separate write-ups, and created further write-ups that were never presented to or signed by her. Seven Corrective Action Forms were electronically dated on the same day. Two of the forged forms were physically dated on dates that predated their own electronic creation — an impossibility. Plaintiff's 2021 year-end review, a document with no business being touched in 2022, was altered with nine changes on the same day those forms were created.

Defendant failed to produce the original electronic files with metadata intact, preventing analysis of when the files were actually manipulated. Defendant's employees testified that they wrote up their investigation notes contemporaneously; the metadata shows the document was created twelve weeks after this lawsuit was filed.

Legal standard

Summary judgment is a drastic measure that deprives the losing party of a trial on the merits and should be used with caution. Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 79. It is appropriate only when no material issue of fact exists. Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 446.

A plaintiff in an employment discrimination action need produce very little evidence to overcome an employer's motion for summary judgment. Chuang v. University of California Davis, 225 F.3d 1115, 1123–24 (9th Cir. 2000). As the court observed in Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 286, employment cases present issues of intent and motive that are not determinable on paper and are rarely appropriate for disposition on summary judgment.

The motion was untimely

Code of Civil Procedure section 437c(a) requires moving papers to be filed 75 days before the hearing, extended by two court days for electronic service. Cole v. The Superior Court (2022) 87 Cal.App.5th 84, 87–88. The hearing date was February 27, 2025, making the service deadline December 12, 2024. Defendant served the motion electronically on December 13, 2024 — one day late.

The religious-organization exemption does not apply

Defendant argued it is exempt from FEHA as a religious organization. The argument fails twice over.

First, the operative complaint pleads no FEHA claims. It pleads three causes of action: violation of Labor Code section 1102.5(b) for reporting child abuse, and two common-law wrongful termination in violation of public policy claims grounded in the California Constitution and in federal anti-discrimination law. There is no religious exemption from Labor Code section 1102.5, and religious organizations are not exempt from common-law wrongful termination claims. Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 236.

Second, Defendant does not qualify for the exemption. Government Code section 12926.2 narrowed the definition of a religious corporation, requiring compliance with Corporations Code section 9130. Section 9130(b) mandates specific language in the articles of incorporation. Defendant's produced articles lack that language.

Plaintiff was an at-will employee

Defendant argues Plaintiff was a contract employee rather than at-will, yet produces no written employment contract. Defendant's own employee handbook states that employment at Temple Akiba is at-will unless changed by the full Board of Directors in a written contract. Plaintiff's job offer states: "Your employment with [Defendant] will be 'at-will.' This means that either you or [Defendant] may terminate your employment at any time, with or without Cause or without advance notice."

The cases Defendant relies on — Motevalli, Daly and Touchstone — each involved a plaintiff with a fixed-term contract. Plaintiff had no such contract.

Defendant did not contest the prima facie case

On a defendant's motion for summary judgment the defendant bears the initial burden to negate an element of the prima facie case or establish a legitimate, non-discriminatory reason. Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160. Defendant's moving papers assume the prima facie case without conceding it, so those elements are not before the court. New arguments or evidence raised for the first time on reply would be improper. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 310.

The stated reason for termination is itself disputed

Where there is a disputed issue of fact as to whether the employer produced a legitimate, non-discriminatory reason, no evidence of pretext is needed to defeat summary judgment. Brandon v. Rite Aid Corp., 408 F.Supp.2d 964, 980 (E.D. Cal. 2006).

Defendant says it declined to renew Plaintiff's contract for long-standing performance issues, but the separate statement contains no undisputed evidence that the school declined to renew. The administrator testified that all termination decisions are made by the school's Administration Committee, and that the committee had made no decision about Plaintiff at the time of her final meeting on June 2, 2022. Defendant's own discovery responses state the school never subjected Plaintiff to any adverse employment action, and the school contested her unemployment claim on the ground that she quit rather than being terminated for performance.

The evidence of pretext

Pretext exists where there are weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's stated reasons such that a reasonable fact finder could find them unworthy of credence. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 314. Evidence of pretext is considered cumulatively. Chuang, 225 F.3d at 1129.

Forged and backdated write-ups. Defendant drafted six Corrective Action Forms in March 2022 on the same day it modified Plaintiff's 2021 year-end review. The forms purportedly signed in February 2022 were forgeries: the metadata shows the digital files were created on March 1, 2022, while the forged signatures are dated February 15 and February 20, 2022. The documents first appear as an email attachment on April 26, 2022. A forensic handwriting expert concluded Plaintiff's signature was likely forged on three separate forms. An inference can be drawn from the need to fabricate evidence of poor performance that no such poor performance existed.

Temporal proximity. Temporal proximity establishes pretext where an employee with an excellent record is suddenly accused of serious performance problems after protected activity, subjected to derogatory comments, and terminated. Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353–54. That is exactly what happened here. No corrective action forms existed in prior school years; an unusual number appeared immediately after Plaintiff began complaining about child abuse.

No real investigation. An employer's failure to conduct a balanced or thorough investigation supports an inference of retaliatory or discriminatory intent. Nazir, 178 Cal.App.4th at 280; Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334. No incident reports, witness statements or formal findings were produced. No children or parents were interviewed. No mandatory report was filed with child protective services or law enforcement, in violation of the school's own handbook.

Shifting and inconsistent reasons. An inference of pretext arises where the employer gives shifting, contradictory or factually baseless justifications. Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 615; Payne v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079, 1080. Plaintiff's evaluations through 2020 rated her positively for following directives and being a team player. Despite testimony that she made daily grammar mistakes for one to two years, only one corrective action form was ever issued on the subject — a single misspelling of the word "vote".

Departure from the school's own policy. An employer's failure to follow its normal policies is evidence of pretext. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117 (9th Cir. 2011). No corrective action forms were issued after March 3, 2022, implying any issue had resolved before the termination, and the progressive disciplinary process described in testimony was not applied.

Direct evidence of discriminatory motive

The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.

National origin. Language can be a potent source of racial and ethnic discrimination. Garcia v. Spun Steak Co. (9th Cir. 1993) 13 F.3d 296, 298–99. For more than 19 years no complaint was made about Plaintiff's language. At the termination meeting she was told: "Your accent is not good, and the way that you talk to the children is not proper. The children are going to learn your accent." Berating an employee's accent is evidence of national origin discrimination. Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 561–563.

Age. The longest-tenured teacher was terminated a year earlier and told she was being let go because she had worked at the school too long. A supervisor also attributed Plaintiff's alleged performance issues to her having taught a long time and being used to doing things a certain way. Comments need not be made directly to the plaintiff to constitute evidence of animus. Cheat v. El Camino Hospital (2014) 223 Cal.App.4th 736, 755.

Plaintiff is a whistleblower under section 1102.5

Labor Code section 1102.5(b) protects an employee who has reasonable cause to believe the information discloses a violation of law, regardless of whether disclosing it is part of the employee's job duties. The only inquiry is whether Plaintiff had reasonable cause to believe what she reported was child abuse — inherently a triable disputed fact. Defendant's own employee handbook defines child abuse to include emotional injury from an environment of constant criticism, belittling and persistent teasing.

Defendant withheld the discovery this case requires

Code of Civil Procedure section 437c(h) provides that where facts essential to justify opposition exist but cannot be presented, the court shall deny the motion. Plaintiff served discovery for all documents relating to her performance, evaluations and termination, including the original digital files with metadata intact. Numerous responsive documents described in deposition were not produced until after the summary judgment papers were served, with some produced after the discovery cutoff, preventing Plaintiff from reopening two depositions. Defendant produced manipulated .docx files rather than the original .doc files, affecting the metadata the expert needed.

Conclusion

For the foregoing reasons, the motion for summary judgment should be denied.