Cal State Northridge creationist ruling

TENTATIVE RULING JUDGE DALILA C. LYONS DEPARTMENT 20 Hearing Date: Case Name: Case No.: Motion: Moving Party: Responding Party: Notice: Ruling:

Friday, July 22, 2016 Armitage v. Board of Trustees of the California State University, et al.

BC552314 Summary Judgment /Adjudication Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer Plaintiff Mark Armitage

OK Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary adjudication as to the First Cause of Action is DENIED. Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary adjudication as to the Second Cause of Action is GRANTED. Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary adjudication as to the Third Cause of Action is DENIED. Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary adjudication as to the Fourth Cause of Action is GRANTED as to William Krohmer and Ernest Kwok.

Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary adjudication as to the claim for punitive damages is GRANTED as to William Krohmer and Ernest Kwok.

Defendants Board of Trustees of the California State University, Ernest Kwok, and William Krohmer's motion for summary judgment is DENIED.

BACKGROUND

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On July 22, 2014 Plaintiff Mark Armitage ("Plaintiff') filed the Complaint against Defendants Board of Trustees of the California State University ("CSU"), Ernest Kwok ("Dr. Kwok"), William Krohmer ("Krohmer"), Randy Cohen ("Dr. Cohen") and Does I through 25 for (I) religious discrimination (FEHA), (2) wrongful termination in violation of public policy (FEHA), (3) failure to prevent or investigate a violation ofFEHA, and (4) free speech retaliation in violation of 42 U.S.C. ยง 1983. 1 Plaintiff alleges that on December 11, 2009 he was hired by CSU as an Electron Microscopy Technician for a "Permanent Part Time" position in which Plaintiff would work two ten-hour days per week. Plaintiffs responsibilities eventually included teaching a graduate course in Biological Imaging and producing training videos with examinations to prepare students for further activities. In the summer of2012 he discovered soft tissues in a triceratops fossil that if the dinosaur lived 65-million years ago would have been presumed to decay into nothingness. Plaintiff alleges that as he is a creationist and believes the Earth is only 4,000 years old at most, Plaintiffs discovery would lead credence to his belief that the Earth is younger than generally accepted. Plaintiff alleges he would engage in discussions with students in Socratic dialogue about the possible age of the horn, but one of the students was upset about the discovery and its implications and told Dr. Kwok, Plaintiffs supervisor, about the discussions. Plaintiff alleges Dr. Kwok angrily told Plaintiff they would not tolerate Plaintiff's religion in the department and chastised Plaintiff for his "creationist" projects. Plaintiff alleges he informed Krohmer, the head of technical services, and Dr. Cohen, the department chair, of the confrontation as religious discrimination. Plaintiff alleges no one investigated his charge of religious discrimination, that no action was taken against Dr. Kwok, and no further action was taken to curtail further discrimination for actual or perceived religious beliefs.

Plaintiff alleges that on February 12, 2013 he was able to have published in a journal his triceratops findings which Plaintiff alleges is not only part of career advancement, but also that Plaintiff's work reflects his religious identity and thus making his work published is how Plaintiff exercises his religion to reveal God to others. Plaintiff alleges Dr. Kwok called a secret meeting in response to the publication in which a decision was made to terminate Plaintiff and Plaintiff alleges such decision was due to animus of Plaintiff's actual or perceived religion.

Plaintiff alleges on February 19, 2013 Krohmer warned Plaintiff he was the target of a "witch hunt" and that Plaintiff should resign before he was terminated, but on February 27, 2013 Plaintiff was officially terminated with the reason proffered that his job was only a "temporary appointment." But Plaintiff alleges such reason is pretext for the religious discrimination.

On July 08, 2016 Plaintiff filed a Doe Amendment to name Larry Allen to the Complaint.

There is no proof of service on the court file showing that the Allen has been served with the summons and complaint.

CSU, Kwok, and Krohmer (collectively "Defendants") move for summary judgment as to the Complaint, or alternatively, summary adjudication on the following issues: (!)the First 1

On February 19, 2016 the parties stipulated that (I) Cohen were dismissed with respect to all causes of action, (2) CSU was dismissed as to the Fourth Cause of Action as only individuals can be sued under the statute, (3) Kwok and Krohmer were dismissed as to the First, Second, and Third Causes of Action, and (4) all dismissed defendants agreed to waive any claims for the recovery of costs, expenses, or attorneys' fees incurred for the dismissed claims.

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Cause of Action fails because Plaintiff cannot establish a prima facie case, CSU had legitimate business reasons for its actions, and Plaintiff cannot establish pretext; (2) the Second Cause of Action fails because it is redundant and dependent upon the First Cause of Action and CSU as a public entity cannot be held liable for the common law tort of wrongful termination; (3) the Third Cause of Action fails because CSU did not discriminate against Plaintiff on the basis of Plaintiffs religion and thus there was no discrimination to investigate; (4) the Fourth Cause of Action fails because Plaintiff cannot establish a prima facie case and Plaintiff would have been subject to the same adverse action regardless of engaging in protected speech; and (5) the claim for Punitive Damages fails against because the conduct does not amount to oppression, malice, or fraud.

In his opposition, Plaintiff consents to dismissal of the Second Cause of Action. Plaintiff states that he has also named as under Doe designations LmTy Allen and Jen-y Stinner as defendants to the Fourth Cause of Action. Plaintiff argues the remaining causes of action are properly asse1ied and there are disputes of material fact.

In their reply, Defendants argue the Court should enter summary judgment because there is no evidence provided that Plaintiff was terminated based upon his religion and Plaintiffs only evidence is a hearsay statement that Dr. Kwok was involved in the decision to terminate Plaintiff. Defendants further argue the Fourth Cause of Action (Section 1983) must fail because Plaintiff does not provide any evidence as to Krohmer and Plaintiff admits the publication contained no discussion of Plaintiffs religion and was a strictly science paper.

ANALYSIS I.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary suppo11 for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, coUiis must apply a three-step analysis: "(!) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue." Hinesley v.

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court's consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. ยง 437c(c); Villa v. Mcfarren (1995) 35 Cal.App.4th 733, 741.

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalfv. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, I 520. CoUI1s "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any 3

opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak.

Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiffs case or a complete defense to plaintiffs action. Code Civ. Proc.§ 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858. Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. § 437c(o)(2).

Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a comi must grant a motion for summary adjudication. Code Civ. Proc.§ 437c(o)(l)-(2). A defendant meets its burden by showing that "one or more elements of a cause of action ... cannot be established." Id.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. Paro! evidence cannot be used to supply unwritten details of an arrangement between the parties. Friedman v. Bergin (1943) 22 Cal.2d 535, 539. "[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be." Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.

A.

First Cause of Action for FEHA Religious Discrimination

The Fair Employment and Housing Act ("FEHA'') makes it unlawful for an employer to discriminate against an employee because of, among other things, the employee's religious creed, the employer's perception of an employee's religious creed, or the employee's association with those of a particular religious creed. Govt. Code§§ 12926(0) and 12940(a). The employee-plaintiff establishes a prima facie case of employment discrimination based upon religion by establishing (1) membership or perceived membership in a protected class based upon "religious creed", (2) the plaintiff was qualified for the position and competently performed the job, (3) an adverse employment action, and (4) circumstance suggesting a discriminatory motive for the adverse action. See Guz Bechtel National, Inc. (2000) 24 Cal.4th 317, 355. Once an employee establishes a primafacie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action and if the employer is able to produce such legitimate reason, the burden shifts back to the employee to show the reason offered is pretext for discrimination. See id. at 357. Pretext may be inferred from the timing of the termination, the person that made the decision, or by the employee's job performance prior to the termination. Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479. Pretext can also be shown by demonstrating the proffered reason has no basis in fact, did not actually motivate the discharge, or was insufficient to motivate discharge.

Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-07 (the plaintiff can meet the burden by (1) offering evidence the employer's stated nondiscriminatory reason is untrue or pretextual, (2) evidence the employer acted with discriminatory animus, or (3) a combination of the two such that a trier of fact could conclude the employer engaged in intentional discrimination).

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Defendants argue that since Plaintiffs termination of the temporary position, no one has been retained for the similar job nor has the position been filled with another employee.

Defendants' Undisputed Material Facts ("DUMF'') No. 53. Defendants state that the electron microscopes are no longer being used and are in the process of being decommissioned and thus the reason Plaintiff was hired no longer exists. DUMF Nos. 45. Defendants state that when deciding to eliminate Plaintiffs position, the electron microscopes were in low demand and the depatiment was struggling with recurring budget cuts and the depmiment chair knew shutting down the position could save over $100,000.00 per year. DUMF No. 40. Defendants state the depatiment chair, Allen, decided to eliminate Plaintiffs position and he did not !mow of Plaintiffs religious beliefs, Plaintiffs article on the dinosaur bone discovery, or Plaintiffs interaction with Dr. Kwok regarding religion. DUMF Nos. 33-36. And Defendants state the department chair began to inquire about shutting down the electron microscopes in January 2013 and received a budget analysis of the electron microscopes on January 29, 2013, before Plaintiff published his article. DUMF No. 24. Defendants state that the department chair decided to end Plaintiffs temporary employment because the microscope laboratory was being closed down, and such fact is confirmed in that the laboratory is unused to this day and no one has been hired to fill Plaintiffs former position. DUMF Nos. 45, 53.

Plaintiff disputes Defendants' material facts and states that Allen testified in his deposition to being aware that Plaintiff was a Creationist by fall of2012. Plaintiffs Disputed Material Facts ("PDMF'') No. 33. Plaintiff argues that as Dr. Kwok took place in the advisory meeting with the committee that recommended the elimination of Plaintiffs position, his input given the animus between Plaintiff and Dr. Kwok in which Dr. Kwok told Plaintiff his religion did not belong in the department shows discrimination was a motivating factor. PDMF Nos. 42, 44, 51. Plaintiff also disputes that the laboratory is no longer in operation, as Dr. Kwok is providing training to faculty and students and the laboratory has only decommissioned the electron microscopes but more fluorescent microscopes have been added as well as continued use of the confocal microscope. PDMF No. 45-46, 53.

Here, the answers to the critical questions of who made the decision to terminate Plaintiff and whether Plaintiff was terminated on the basis of his religious creed are disputed. Defendants claim that Allen made the decision to terminate Plaintiff. (Allen Deel. '1!9) On the other hand, Plaintiff claims that on February 27, 2013 Allen told him that the EM/Confocal committee, of which Dr. Kwok was a member, made the decision to terminate him. (Plaintiffs Deel. '1!77) (Opp. 15: 18-19). Defendants' hearsay objection to this statement is contained in their reply but not in the separately filed objections to evidence.

As stated above, there is also a dispute of material fact as to whether Allen, the depatiment chair, !mew of Plaintiffs religious beliefs and whether the involvement of Dr. Kwok in the decision to eliminate Plaintiffs position shows discriminatory animus given a confrontation Dr. Kwok and Plaintiff had regarding Dr. Kwok feeling Plaintiff improperly was teaching his religious beliefs and that there was no place for Plaintiff's religion in the department. PDMF No. 33, 42, 44, 51. Further, the trier of fact may infer a pretext from the timing of Plaintiff's termination shortly after he published the article. PDMF Nos. 21-25, 52; PAMF Nos. 88-89.

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Accordingly, Defendants' motion for summary adjudication is DENIED as to the First Cause of Action.

B.

Second Cause of Action for Wrongful Termination in Violation of Public Policy Plaintiff consented to the dismissal of the claim.

Accordingly, Defendants' motion for summary adjudication is GRANTED as to the Second Cause of Action.

C.

Third Cause of Action for Failure to Prevent or Investigate a Violation of FEHA

To establish a claim for failure to prevent harassment or discrimination in violation of FEHA a plaintiff must show that as an employee was (I) subject to discrimination, harassment, or retaliation in the course of employment, (2) the employer failed to take reasonable steps to prevent the discrimination, harassment, or retaliation, and (3) the plaintiff was harmed by the failure to take reasonable preventative steps. Alamo v. Practice Management Infonnation Corp.

(2013) 219 Cal.App.4th 466, 480; CACI 2527. Without showing harassment, discrimination, or retaliation the claim must fail. See Trujillo v. Notih County Transit District (1998) 63 Cal.App.4th 280, 289.

Defendants argue that as the FEHA discrimination claim fails, so must the claim that CSU failed to prevent or investigate discrimination.

As stated above, the FEHA discrimination claim does not fail as a matter oflaw.

Accordingly, Defendants' motion for summary adjudication is DENIED as to the Third Cause of Action.

D.

Fourth Cause of Action for Free Speech Retaliation in Violation of 42 U.S.C. ยง 1983

"A [section] 1983 claim requires two essential elements: (1) the conduct that harms the plaintiff must be committed under color of state law (i.e., state action), and (2) the conduct must deprive the plaintiff of a constitutional right." Ketchum v. Alameda County (9th Cir. 1987) 811 F.2d 1243, 1245. A claim for free speech retaliation pursuant to 42 U.S.C. ยง 1983 is analyzed under a five-factor test that looks to: "(!)whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent from the protected speech." Eng v. Cooley (9th Cir. 2009) 552 F.3d I 062, I 070.

First, the plaintiff bears the burden of showing that the speech addressed an issue of public concern. See Connick v. Myers (1983) 46.J U.S. 138; Bauer v. Sampson (9th Cir. 6

2001) 261 F.3d 775, 784. "Speech involves a matter of public concern when it can fairly be considered to relate to 'any matter of political, social, 01¡ other concern to the community.'"

Johnson v. Multnomah County, Or. (9th Cir. 1995) 48 F.3d 420, 422 (9th Cir. 1995) quoting Connick 461 U.S. at 146. But "speech that deals with individual personnel disputes and grievances and that would be of 'no relevance to the public's evaluation of the performance of governmental agencies is generally not of public concern." Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 973 (9th Cir.2003) (internal quotations omitted). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Johnson 48 F.3d at 422 quoting Connick 461 U.S. at 147--48.

Second, the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee. See Garcetti v. Ceballos (2006) 547 U.S. 410, 421-22; Posey v. Lake Pend Oreille School Dist. No. 84 9th Cir. 2008) 546 F.3d 1121, 1126-27.

"Statements are made in the speaker's capacity as citizen ifthe speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform." Posey at 1127 n. 2 citing Marable v. Nitchman (9th Cir. 2007) 511 F.3d 924, 932-33 and Freitag v. Ayers (9th Cir. 2006) 468 F.3d 528, 544.

Third, the plaintiff bears the burden of showing the state "took adverse employment action ... [and that the] speech was a 'substantial or motivating' factor in the adverse action." Freitag 468 F.3d at 543 quoting Coszalter v. City of Salem (9th Cir. 2003)) 320 F.3d 968, 973; see also Marable 511 F.3d at 930, n. 10 ("It is [the plaintiff]'s burden to show that his constitutionally protected speech was a motivating factor in [the state ]'s adverse employment action.").

Fourth, if the plaintiff has passed the first three steps, the burden shifts to the government to show that "under the balancing test established by [Pickering], the [state]'s legitimate administrative interests outweigh the employee's First Amendment rights." Thomas v.

City of Beaverton (9th Cir. 2004) 379 F.3d 802, 808. This inquiry, known as the Pickering balancing test, asks "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Garcetti 547 U.S. at 418. Its qualified restriction of ordinarily protected speech recognizes that "[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." Id. Fifth and finally, if the government fails the Pickering balancing test, it alternatively bears the burden of demonstrating that it "would have reached the same [adverse employment] decision even in the absence of the [employee's] protected conduct." Thomas 379 F.3d at 808 quoting Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 976-77. The government may avoid liability by showing that the employee's protected speech was not a butfor cause of the adverse employment action. See Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle (1977) 429 U.S. 274, 287. This question relates to, but is distinct from, the plaintiffs burden to show the protected conduct was a substantial or motivating factor. It asks whether the "adverse employment action was based on protected and unprotected activities," and ifthe state

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"would have taken the adverse action ifthe proper reason alone had existed." Knickerbocker v.

City of Stockton (9th Cir. 1996) 81F.3d907, 911 (emphasis added).

Defendants argue there is no evidence of protected speech to support the claim. Plaintiff admits that the article at issue was "strictly science" without any discussion of the Plaintiff's religious beliefs and that Plaintiff did not speak to any student about Plaintiffs religion or Creationism. DUMF Nos. 26-28. Defendants state that when Plaintiff informed Krohmer about Dr. Kwok telling Plaintiff they would not tolerate Plaintiffs religion in the depatiment or Creationism projects as it was a science department, Krohmer told Plaintiff he did not care about Plaintiff's religion and encouraged Plaintiff to keep doing what he was doing, thus showing no animus on the pati ofKrohmer. DUMF Nos. 29-30. And Defendants state that, as provided above, the department chair did not consult with Krohmer about the decision to shut down the electron microscope laboratory and Kroluner had no input in the decision.

Further, Defendants state Dr. Kwok never recommended Plaintiff lose his job because of his religion and it was not until February 2013 that Dr. Kwok told the department chair that the limited use of the laboratory did not justify the expense of operating it. DUMF Nos. 42, 44, 51.

And Defendants state Krohmer and Dr. Kwok had no knowledge of Plaintiff's publication until after Plaintiff's termination. DUMF No. 52. Defendants further argue that, as stated above, the depaitment chair would have terminated Plaintiff's position regardless of the speech as the position was terminated for financial reasons only.

Here, the parties do not dispute and Plaintiff states in his opposition that the only protected speech at issue is the article written by Plaintiff and published on February 13, 2013. DUMF No. 24; Opposition 16:23-24; Armitage Deel. ifif 72-77. Plaintiff meets the first element of the five-factor test since the article, a scientific publication, was "protected speech." Although the article may be "strictly science" the subject matter is of public concern.

However, Plaintiff cannot meet the second element of the five-factor test, of showing that the article (protected speech) was written in his capacity as a private citizen and not as a public employee. There is no substantial evidence to show that the article was written/published "outside" the course of his ordinary job responsibilities. 2 Although his job description officially did not state that he is to do research and publication and Plaintiff conducted the research (as opposed to the writing) on the dinosaur bone on his "own" lab using his "own" equipment, while he was on the job at CSU training one of the students, Rigoberto Ramirez, Plaintiff discussed the bone picture on his computer with the student. PDMF 56. Also, during Plaintiff's interview, Professor Oppenheimer encouraged him to continue publishing, which would enhance the reputation of the university. PDMF 55; Armitage Deel. if! 9. Also, Professor Oppenheimer accepted his article for publication in the journal and it was highlighted on the weekly departmental newsletter. PDMF 69. Plaintiff, employed in the Biology Department, does not dispute that the atticle was a strictly science paper published while he was employed at CSU. PDMF 72.

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Public employees First Amendment protections apply to speech "outside" the course of their ordinary job responsibihties, if the speech is of matter of public concern. Lane v. Franks (2014) 134 S. Ct. 2369.

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Plaintiff further does not dispute that had no discussion of his religious beliefs with the student and that he did not speak of Creationism or his religious beliefs with a student. DUMF Nos. 26-28. While Plaintiff attempts to argue in the opposition that a jury may also find he was terminated due to discussions of his findings with a student, any discussions with students were in Plaintiffs capacity as an employee of CSU and therefore would clearly be "inside" the course of his job duties. See DUMF Nos. 27-28; Opposition 16:23-25. The conversation with the student, which did not include any discussion or Plaintiffs religion or Creationism, was clearly the product of performing the tasks the employee was paid to perform. Posey at 1127 n.

2 citing Marable 511 F.3d at 932-33 and Freitag 468 F.3d at 544.However, as stated above, Plaintiff states he was terminated only because of the publication of the article on February 13, 2013, not the June 12, 2012 discussion with a student.

Third, even assuming that the article was done in Plaintiffs personal capacity and not in his public employee capacity, he cannot meet the third element of the five-factor test. There is evidence to show that Krohmer and Dr. Kwok knew about the article before Plaintiffs termination. DUMF 52. If these two defendants did not know about the article, then the article could not have been a motivating factor in his termination. Both Dr. Kwok and Krohmer's declarations state that they did not know about the mticle before Plaintiffs termination. Kwok dee!., if!; Krohmer decl. if3. The Court agrees with Defendants that Plaintiffpurpmts to dispute this key fact but offers no evidence to support his purported dispute. Plaintiff claims these two defendants had lmowledge because they both "received notification of cover pictures, and therefore knew about the research." (Emphasis added) Plaintiffs Response to DUMF 52. However, a cursory review of the "evidence: Plaintiff offers clearly shows the opposite. Plaintiffs evidence is Exhibit Q to Reinach's declaration. They are two emails dated June 13, 2012, one from Plaintiff to Oppenheimer and the other email is Oppenheimer's response, with the subject "magazine cover" and it does not list Kwok as recipient or sender. See Reinach Deel., Exh. Q. Therefore, Kwok could not have any knowledge of the article based on this email and there no other evidence to show that Dr. Kwok had knowledge of this article (protected speech) prior to Plaintiffs termination.

As to Krohmer, he was listed on the "cc" of the 2012 email. However, the 2012 email from plaintiff to Oppenheimer does not refer to the article (the protected speech) at issue here which was undisputedly published in February 13, 2013- after the email. See DUMF No. 24. The email from Plaintiff to Oppenheimer dated June 13, 2012 states" ... here is a cover that I landed a couple months back-" then the email has a link to" ... American-Laboratory- March 2012" (emphasis added). It would have been impossible to mention the article (protected speech) in the 2012 email since it was not yet published. Pl

Ill Fu1ther, Plaintiff does not provide any evidence of any hostility or retaliation on the part of Krohmer. While Plaintiff was confronted by Dr. Kwok regarding his religious beliefs, Plaintiff does not dispute that Krohmer upon hearing of the incident expressed he did not care about Plaintiff's religious beliefs and Plaintiff states Krohmer took the issue seriously and reported it to the then-department chair. DUMF No. 29-30; Plaintiffs Additional Material facts ("PAMF") No. 75. And Plaintiff states that Krohmer warned Plaintiff of a witch hunt to eliminate Plaintiffs job because of the article Plaintiff published that challenged the evolutionary timeline and age ofa dinosaur bone. PDMF Nos. 21-25, 52; PAMF Nos. 88-89. Thus, there is no evidence to show and Plaintiff does not dispute that Krohmer exhibited no such hostility to Plaintiff's religion and Plaintiff submits that Krohmer in fact warned Plaintiff of Plaintiffs position being eliminated because of the publication of the article and challenge to the

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Furthermore, Exhibit Q, page 2 of the CSUN weekly bulletin, attachment to the 2012 email, states "The cover of March issue of American Laboratory has an image taken by Mark Armitage, our microscopist." It says nothing about an article yet to be published. Also, Plaintiffs specific allegation in his opposition clearly states that this email/photo gave the defendants notice of the "research" not the "aiiicle". Those are two separate things. One can do research and never publish an article. The research is not protected speech, as Plaintiff claims, it's the article that is the protected speech.

Finally, it is speculative for Plaintiff to assume that because in June 2012 Krhomer was sent this email with an image (assuming it's the bone at issue) that Krhomer would then have knowledge that Plaintiff published an aiiicle about this image in February 12, 2013. Even assuming there was evidence that Krhomer read the 2012 email, Plaintiff's inference that Krhomer had knowledge of a 2013 article is umeasonable. It is undisputed that Krohmer had no knowledge of the article prior to Plaintiffs termination.

Therefore, even assuming that Plaintiff has met elements one and two of the five-factor test, he cannot meet element three. Accordingly, Defendants' motion for summaiy adjudication as to the Fourth Cause of Action is GRANTED as to Krohmer and Dr. Kwok.

E.

Punitive Damages

Civil Codeยง 3294(a) authorizes the recovery of punitive damages in non-contract cases "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.

Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.

Defendants argue as Plaintiff's position was terminated due to costs, there is no basis for punitive damages against Krohmer or Dr. Kwok as they did not act with malice, oppression, or fraud. And if the cause of action fails, so must an ancillary claim for punitive damages. Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355.

As stated above, there is no claim against Krohmer and Dr. Kwok which could support a claim for punitive damages.

Accordingly, Defendants' motion for summary adjudication as to the claim for punitive damages is GRANTED as to Krohmer and Dr. Kwok.

II.

Judicial Notice

A.

Defendants' Request

evolutionary timely. And Plaintiff does not dispute that Krohmer was not a participant in the meeting in which it was allegedly decided to eliminate Plaintiffs position. DUMF No. 43.

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Defendants' request for judicial notice is GRANTED. III.

Evidentiary Objections

A.

Defendants' Objections

SUSTAINED: Nos. I, 5, 6, 7, 8 OVERRULED: Nos. 2, 3, 4

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