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Botros v. Lea

June 1, 2010


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court


On June 30, 2009, Morrow Botros ("Plaintiff") filed a complaint against Williams Lea ("Defendant") in San Diego Superior Court. (Doc. No. 1 Ex. A ("Compl.").) Plaintiff's complaint arises out of his employment relationship with Defendant and alleges causes of action for discrimination, harassment, and retaliation under the California Fair Employment and Housing Act ("FEHA") and for wrongful termination in violation of public policy. (Id.) On August 13, 2009, Defendant filed a notice of removal based on diversity jurisdiction. (Doc. No. 1.) On April 23, 2010, Defendant filed a motion for summary judgment. (Doc. No. 16.) On May 17, 2010, Plaintiff filed a response in opposition to Defendant's motion for summary judgment. (Doc. No. 25.) On May 24, 2010, Defendant filed a reply in support of its motion for summary judgment. (Doc. No. 27.) The Court held a hearing on Defendant's motion for summary judgment on June 1, 2010 at 10:30 a.m. in courtroom 13. Laura Farris appeared on behalf of Plaintiff and Alex Hernaez appeared on behalf of Defendant. For the reasons set forth below, the Court denies Defendant's motion for summary judgment.


Defendant is a company that provides outsourcing services to business clients in California and elsewhere. (Doc. No. 16-3 ("Pineda Decl.") ¶ 3.) Defendant's employees provide word-processing, photocopying, and related office services to attorneys at a San Diego law office. (Id.) Defendant hired Plaintiff as an office services associate in April 2005 when Defendant assumed operations at the San Diego law office. (Id.; Doc. No. 25-2 ("Botros Decl.") ¶ 1.) Plaintiff had worked for Defendant's predecessor at the San Diego law office since 2000. (Botros Decl. ¶ 1.) In 2005, Plaintiff reported to Marisa Navar ("Navar"), an account manager for Defendant. (Id. ¶ 2.) In 2006, Navar was assigned to a different location and Alex Chavarria ("Chavarria") was promoted to her position and became Plaintiff's direct supervisor. (Id. ¶ 3.)

Plaintiff contends that beginning in 2005 and continuing through July of 2007, Chavarria regularly harassed Plaintiff based on his sexual orientation. (Id. ¶ 4.) Plaintiff alleges that Chavarria sent Plaintiff text messages and emails that were sexual in nature and related to Plaintiff's sexual orientation, repeatedly called Plaintiff derogatory names based on his sexual orientation, told Plaintiff that he would look better in women's clothing, and made other offensive comments regarding Plaintiff's sexual orientation. (Id.)

On July 12, 2007, Plaintiff met with Chavarria regarding Plaintiff's 2007 performance evaluation. (Id. ¶ 7.) Plaintiff and Defendant provide different accounts of what occurred at the meeting. Plaintiff contends that he and Chavarria discussed the evaluation, and that Plaintiff told Chavarria he believed the review was untrue and unfair, and that it was intended to discriminate against him. (Id.) Plaintiff refused to sign the evaluation and told Chavarria that he planned to write a rebuttal to his review and talk to human resources about the harassment. (Id.) Plaintiff contends that Chavarria told Plaintiff not to complain to human resources and that Chavarria would revise the evaluation. (Id.) Defendant, on the other hand, argues that Plaintiff threatened Chavarria at the July 12, 2007 meeting by telling him that he was going to notify human resources that Chavarria was harassing him unless Chavarria made an upward adjustment on the review. (Doc. No. 16-1 at 11.)

On July 13, 2010, Chavarria sent an email to Guadalupe Pineda ("Pineda"), Senior Human Resources Specialist for Defendant, reporting that Plaintiff had blackmailed Chavarria and that Plaintiff had discussed his performance review with an employee of Defendant's law-firm client. (Pineda Decl. ¶ 5, Ex. D.) The email also alleged that Plaintiff accessed his performance review prior to the July 12, 2010 meeting by opening a confidential envelope on Chavarria's desk. (Id.) Plaintiff disputes that he discussed his performance review with any law-firm employee and contends that he never accessed the performance review prior to his meeting with Chavarria. (Botros Decl. ¶¶ 18, 19, 30.) On July 16, 2007, Pineda spoke with Chavarria by phone and Chavarria reiterated his concerns. (Pineda Decl. ¶ 6.) On the same day, Chavarria sent Pineda another email complaining about Plaintiff. (Id. ¶ 7.) Pineda coordinated a conference call with Chavarria, Plaintiff, and two additional Williams Lea employees. (Id.) At the meeting, Defendant's employees made clear to Plaintiff that he was being accused of blackmailing Chavarria and breaching his non-disclosure agreement with Defendant by discussing his performance review with Defendant's client's employees. (Botros Decl. ¶ 21.)

On July 17, 2007, Pineda called Plaintiff and told him that she planned to travel to San Diego to meet with Plaintiff. (Id. ¶ 23.) During the telephone call, Plaintiff told Pineda that he had received harassing text messages and emails from Chavarria and that Plaintiff would like to speak with Pineda about the harassment. (Id.; Pineda Decl. ¶ 9.) On July 18, 2007, Pineda traveled to San Diego and met with Plaintiff. (Pineda Decl. ¶ 10.) During the meeting, Plaintiff showed Pineda three text messages that Chavarria allegedly sent to Plaintiff. (Id. ¶ 10; Botros Decl. ¶ 24.) Plaintiff contends he also told Pineda that Chavarria had been sending Plaintiff offensive text and email messages at all hours of the day and night for some time and that Plaintiff felt that the messages were discriminatory. (Botros Decl. ¶ 24.) Plaintiff contends that, at the July 18, 2007 meeting, Pineda told Plaintiff that she had to suspend him because the law-firm client did not like the conflict between Plaintiff and Chavarria. (Id.) Pineda testified that she did not make the decision to suspend Plaintiff before meeting with Plaintiff in San Diego. (Doc. No. 25-4 ("Pineda Depo.") 92:16-93:7.)

After returning to her Los Angeles office on July 18, 2007, Pineda discussed her meeting with Plaintiff with her supervisor, Jean Wetstein ("Wetstein"). (Pineda Decl. ¶ 11.) Pineda contends that she recommended that Defendant terminate Plaintiff's employment for threatening Chavarria and for violating Defendant's non-disclosure agreement. (Id.) Wetstein agreed with Pineda's recommendation and Wetstein made the decision to terminate Plaintiff. (Id.) On July 19, 2007, Pineda called Plaintiff and informed Plaintiff that Defendant had decided to terminate Plaintiff's employment. (Id. ¶ 14.) Plaintiff contends that, during the call, Pineda told Plaintiff that the law-firm client did not like the conflict between Plaintiff and Chavarria and that Plaintiff was being terminated. (Botros Decl. ¶ 25.) On the same day, Plaintiff emailed a letter and faxed materials to Pineda regarding Chavarria's alleged harassment. (Id.) The parties dispute whether the email or the phone call occurred earlier. (See Doc. No. 16-1 at 14; Doc. No. 25 at 16 .)

Defendant concluded that Chavarria had engaged in inappropriate behavior and terminated Chavarria's employment on July 20, 2007. (Pineda Decl. ¶ 14; Doc. No. 16-1 at 14.)

On June 24, 2008, Plaintiff filed a complaint alleging discrimination based on sexual orientation with the California Department of Fair Employment and Housing ("DFEH"). (Doc. No. 16-4 ("Hernaez Decl.") ¶ 3, Ex. M.) On July 1, 2008, DFEH issued Plaintiff a right-to-sue notice. (Id.) On June 30, 2009, Plaintiff filed a civil complaint against Defendant in San Diego Superior Court. (Compl.)


I. Motion for Summary Judgment - Legal Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable ...

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