Filed 8/31/26 Harmon v. The Romero Institute CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
HEIDI HARMON H053222 (Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. 23CV02538)
v.
THE ROMERO INSTITUTE et al.
Defendants and Respondents.
In 2021, Heidi Harmon, a former mayor of San Luis Obispo, was hired by the Romero Institute (Institute) as the Senior Public Affairs Officer for a climate policy project. In 2022, after an unresolved incident at a diversity, equity and inclusion (DEI) training involving the president and general counsel of the Institute, Harmon filed an internal complaint, which led to an outside investigation. Three months after the investigation concluded, Harmon was terminated, ostensibly for financial reasons.
Harmon subsequently sued the Institute and its executive director Sara Nelson (Nelson), asserting retaliation, negligent hiring, defamation, and other claims. After conducting discovery, Nelson and the Institute filed a motion for summary judgment, which the trial court granted.
Harmon now appeals. As explained below, we reverse the grant of summary judgment and remand for trial on all of Harmon’s claims except her defamation claim.
I. BACKGROUND
Because this appeal concerns a grant of summary judgment, in recounting the facts, we view the evidence in the record in the light most favorable to Harmon, the party opposing summary judgment. (See, e.g., Conroy v. Regents of the University of California (2009) 45 Cal.4th 1244, 1249.)
A. The Romero Institute The Institute is a “501(c)(3) nonprofit interfaith and policy center” that is “dedicated to exposing and challenging systemic injustice and stopping climate change.” It was founded in 1992 by Nelson and her husband Daniel Sheehan. Nelson serves as the Institute’s Executive Director and Sheehan as its President and General Counsel. Nelson and Sheehan have long served in the “social justice space,” including Sheehan’s work as an attorney on civil rights cases involving, among others, the Black Panthers and the Great Sioux Nation.
1. The Institute’s Projects In 2021, the Institute operated two primary projects: the Lakota People’s Law Project (LPLP) and Let’s Green CA! (LGCA). LGCA, on which Harmon worked, is “a policy, educational, and organizing initiative working toward zero carbon emissions in California by 2030.”
2. The Institute’s Leadership Team and Board of Directors By 2022, the Institute had 25 staff members, including Nelson, Sheehan, and their son Daniel Paul Nelson as well as Chase Iron Eyes, co-director with Daniel Paul Nelson of the LPLP, and Benjamin Eichert, the LGCA director. Nelson, Sheehan, and their son also served as three of nine members of the Institute’s board of directors.
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3. Harmon’s Hiring In August 2021, while Harmon was serving as the mayor of San Luis Obispo, the Institute recruited her to become the LGCA project’s Senior Public Affairs Officer. Eichert was Harmon’s direct supervisor.
B. The DEI Meetings 1. Harmon’s Request for DEI Training After starting work at the Institute, Harmon noticed that Nelson often used “racialized language.” For example, Harmon made statements such as “[s]he is a Chinese professor, so you know she is smart,” “[h]e is Indian, so he’s smart,” and “I am working with a Black donor, so I know she will like our work with poor people.” Nelson’s use of this language concerned Harmon, and, recognizing that issues concerning race “are an evolving landscape, and we can always all do better,” Harmon recommended to Nelson that the “whole team have some DEI training.”
When Harmon first recommended the training to Nelson in early 2021, Nelson was “hesitant about it.” In April 2022, Harmon e-mailed Nelson that “I need to be reminded of what language, etc., causes harm and how I can be more of an ally” and that “professional training and guidance in this area would be critical to ensure that none of us do or say something that might cause blowback for the Romero Institute.” According to Harmon, she made these statements to broaden her recommendation and “soften the impact by not calling out Nelson directly and specifically.” Nelson agreed to the training, and Harmon spearheaded the effort to find an organization to conduct it.
2. Sheehan’s Story at the Second DEI Meeting In July 2022, the Institute held two DEI trainings. During the second training, Nelson encouraged her husband Sheehan to relay a story about when, as a young lawyer, he refused to represent the president of a grocery store chain that had raised prices in historically Black neighborhoods. In relating the story, Sheehan quoted the grocery store
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chain president’s use of the “n-word” concerning civil rights leaders seeking an injunction against his business.
Many in the meeting were offended and several very upset by Sheehan’s use of the n-word in his story. Indeed, according to a later investigative report, one staff member “described herself as shaking after hearing Mr. Sheehan speak the wor[d],” and another, whose partner is African-American, “left the meeting.” When some staff members expressed their objection to Sheehan’s use of the word, he was defensive and defiant, asserting “that he was not concerned with appeasing white liberals or ‘snowflakes’ concerned with ‘wokeness.’ ” However, he later relented and apologized for using the n- word.
3. The Healing Session After the second DEI meeting, Nelson e-mailed the staff acknowledging that she had spoken with many of them regarding their concerns about Sheehan’s story, that Sheehan’s use of the n-word was “unacceptable” and he would be disciplined for it, and that the Institute would hold another meeting to “heal.”
The “healing session” occurred on August 10, 2022. According to Harmon, during the session, Sheehan gave an “inauthentic” apology, and “the leadership team remained defensive about the issues raised.” After staff members expressed frustration about the ongoing defensiveness, Nelson responded by telling staff they were “free to leave if they don’t like the leadership.” Eichert later told Nelson that he wished she had not made the comment because “the staff might think it was a threat.”
C. The Aftermath 1. Harmon’s Internal Complaint On August 11, 2022, the day after Nelson’s comment at the healing session, Harmon submitted a formal complaint to the LGCA, the Institute, the Institute’s Board of Directors, and its officers.
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The complaint noted “several incidents of inappropriate racialized and transphobic language used by our Executive Director Sara Nelson.” In particular, it observed that on multiple occasions Nelson had made statements such as “ ‘She is a Chinese professor, so you know she is smart,’ ” “ ‘He is Indian, so he is smart,’ ” and “ ‘I am working with a Black donor, so I know she will like our work with poor people.’ ” Harmon’s complaint also noted that Nelson had misgendered an employee “even after being gently corrected multiple times.”
Harmon also accused Sheehan of using the n-word “multiple times in a purposely aggressive and violent way” and characterized his apology as “inauthentic.” In addition, Harmon characterized Nelson’s statement to staff that they were “free to leave” as saying “if you don’t like how your employer uses racist or transphobic language or how your boss has handled the aftermath of such use, then you can quit—lose your job—that’s on you—not leadership.”
In addition, Harmon stated that “significant issues with the Board of Directors and other organizational matters . . . deserve a thorough investigation on their own merit by a third party,” including that the leadership were “all family members.”
2. Nelson’s and Daniel Paul Nelson’s Statements to Little Horn Shaun Little Horn, an employee of the Institute who worked remotely from South Dakota, stated that in August 2022 he had conversations with Nelson and her son Daniel Paul Nelson in which they made statements about Harmon.
According to Little Horn, shortly after the second DEI meeting, Daniel Paul Nelson said to him that his father “shouldn’t have said it, but if these people keep on harping about it, we are going to have to let these people go,” and “[w]e’re going to have to let them go, we’re just not going to put up with it, and they need to get over it.” About Harmon specifically, Daniel Paul Nelson said, “She just can’t get over it, and get on, and we are paying her more than anybody, so we need to cut her loose.”
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In addition, Little Horn was on a call with Nelson and her son in which Nelson said that, although Harmon brings in money for the organization, she “causes us all the trouble” and “[o]nce this investigation is over, we are going to wait 30 days and let her . . . go.” Nelson also said that Harmon and two other employees had been outspoken about their issues with the organization, and “[w]e’re just going to cut them loose and let them go, since they are trouble.”
3. The Pyne Investigation In August 2022, the Institute retained an attorney, Daniel Pyne, to investigate the concerns raised in Harmon’s complaint.
In November 2002, Pyne provided a report on his investigation to the Institute’s board of directors. In the report, Pyne reported a statement that Nelson made to him: “Ms. Harmon told Sara Nelson that she thought [DEI] training would be useful because Ms. Harmon had used vocabulary inappropriately in a discussion regarding environmental justice.” However, Pyne observed that “Ms. Harmon told others that she suggested training because Ms. Nelson herself used certain terms inappropriately . . . .”
Pyne concluded that Sheehan’s and Nelson’s comments were unlikely to result in liability for the Institute. However, Pyne found that Sheehan had violated Institute policy when he used the n-word and that other comments made by Sheehan and Nelson were “inconsistent with current best practices, even if they do not rise to the level of policy violations.” (Boldface omitted.) Pyne also informed the Institute that staff had several “good faith concerns” about the Institute’s management, including problems arising from the fact that “the senior leadership” were family members and that there was no “independent party to process concerns relating to them.” (Boldface omitted.)
Pyne made several recommendations. These included that the Institute provide a summary of his investigation to all staff; that his findings be given to Nelson and Sheehan; and that the Institute conduct further DEI trainings at an appropriate time,
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improve means for staff to express concerns about Sheehan and Nelson, diversify its board of directors, create more meaningful accountability for those who violate Institute policies, and update the employee handbook to be consistent with current law and best practices. Finally, Pyne recommended that, “[i]n accordance with California law and best practices,” the Institute assure Harmon and other staff that the Institute “will not retaliate against them for their complaints or concerns.”
In December 2022, Harmon received an e-mail from the Institute’s HR Director, Karen Juarez, “informing [Harmon] that there will be NO retaliation for any complaints or concerns that you or any other staff member has either previously filed or will file in the future.”
4. Harmon’s Termination On February 10, 2023, about three months after Pyne’s investigation concluded, Harmon and several other LGCA employees were terminated. The reason given was that a donation expected to fund LGCA’s staff had fallen through. The decision about who to lay off as a result of the lack of funding was made by the Institute’s leadership team, which included Nelson, Sheehan, and Daniel Paul Nelson.
D. Proceedings Below In October 2023, Harmon sued Nelson and the Institute. Harmon claimed that she was terminated in retaliation for filing her internal complaint in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) She also asserted related claims for failing to prevent discrimination, aiding and abetting a FEHA violation, and wrongful termination in violation of public policy. Finally, Harmon asserted a claim for negligent hiring and supervision and a claim for defamation. In connection with the defamation claim, Harmon alleged that “Ms. Nelson falsely informed Pyne that Plaintiff asked for the DEI training because of inappropriate, racist language that Plaintiff had used.”
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After conducting discovery, Nelson and the Institute moved for summary judgment. With respect to Harmon’s claim of retaliation under FEHA and related claims, defendants argued that there were legitimate, nonretaliatory financial reasons for Harmon’s termination, that Harmon had no evidence that these reasons were pretextual, and that the decision to terminate was made solely by Eichert, who had no reason other than financial distress to terminate her. As to the negligent hiring and supervision claim, the Institute argued that the claim was barred by the exclusive remedy of worker’s compensation and that Harmon had no evidence of foreseeability. Finally, with respect to the defamation claim, Nelson argued that there was no evidence that she had told Pyne that Harmon admitted to making racist comments. Instead, the evidence showed that Nelson told Pyne that Harmon said only that she “used vocabulary inappropriately in a discussion regarding environmental justice.” Nelson argued that this statement was substantially true and, in any event, was protected under the common interest privilege.
In opposition, Harmon submitted a declaration from Little Horn concerning statements made by Nelson and her son Daniel Paul Nelson about terminating Harmon. Because both Nelson and her son were part of the leadership team that participated in the decision to terminate her, Harmon argued that these statements were direct evidence of retaliatory animus and that this animus caused her termination. Harmon also argued that the Institute failed to satisfy its initial burden on the negligent hiring and supervision claim and that evidence of malice rebutted the common interest privilege. In response, defendants objected that the Little Horn declaration contained inadmissible hearsay.
The trial court granted defendants summary judgment. It sustained defendants’
hearsay objections to the Little Horn declaration and therefore did not consider the statements that Nelson and her son made to Little Horn concerning Harmon. Noting that the Institute had offered a legitimate, nonretaliatory reason (lack of financing) for Harmon’s termination, the trial court ruled that Harmon was required to show that this
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reason was pretextual and that the evidence presented by Harmon failed to raise a triable issue concerning pretext. The trial court also ruled that Harmon’s defamation claim failed as a matter of law because Nelson’s statement to Pyne was protected by the rebuttable common interest privilege and that Harmon had not raised a triable issue whether Nelson made the statement with malice.
Harmon timely filed a notice of appeal.
II. DISCUSSION
Harmon challenges the grant of summary judgment, arguing that she raised triable issues concerning each of her claims. We review trial court rulings on summary judgment de novo. (See Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717 (Wilson).) Summary judgment is warranted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) In determining whether there are triable issues, “ ‘[w]e liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Wilson, at p. 717.)
A. Retaliation We begin with Harmon’s FEHA retaliation claim. Harmon argues that the trial court erred in granting summary adjudication on this claim (and the three related causes of action for failing to prevent discrimination, aiding and abetting, and wrongful termination) because the Institute failed to meet its initial burden on summary judgment and because Harmon submitted both direct and circumstantial evidence raising a triable issue. We need address only the direct evidence submitted by Harmon.
Retaliation claims under FEHA have four essential elements: (1) the employee engaged in a protected activity, (2) the employer harbored retaliatory animus towards the employee, (3) the employer took adverse employment action against the employee, and
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(4) a causal link between the retaliatory animus and the adverse action. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [also recognizing the plaintiff must suffer damages caused by adverse employment action]; see also Yanowitz v. L’Oréal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [listing three elements].) It is undisputed that Harmon engaged in a protected activity by submitting a formal HR complaint and that the Institute took adverse employment action in terminating Harmon, which satisfies the first and third elements. As explained below, Harmon presented evidence raising triable issues concerning the two remaining elements: animus and causation.
1. Direct Evidence Discriminatory animus may be proven by either direct or circumstantial evidence.
(Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 67 (Morgan).) Because employers often refrain from expressly disclosing discriminatory animus, direct evidence of intentional discrimination is unusual. Consequently, as the trial court appears to have assumed to be the case here, employment discrimination plaintiffs typically must use circumstantial evidence to prove animus, ordinarily through the McDonnell-Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell-Douglas) framework, which uses presumptions and shifting burdens to establish discriminatory intent circumstantially. (See, e.g., Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 378-380 (conc. & dis. opn. of Kennard, J.) (Guz).) However, in unusual cases where there is direct evidence of animus, the McDonnell-Douglas framework is not needed. (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 34-35 (Zamora); Morgan, at p. 68.)
“ ‘ “Direct evidence is evidence which, if believed, proves the fact [of animus]
without inference or presumption.” ’ ” (Morgan, supra, 88 Cal.App.4th at p. 67.) When an employee presents direct evidence of animus, “ ‘ “ ‘a triable issue as to the actual motivation of the employer is created,’ ” ’ ” even though the evidence may not be extensive. (Zamora, supra, 71 Cal.App.5th at p. 34.) Consequently, in an employment
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discrimination case, “ ‘ “[t]he plaintiff is required to produce ‘very little’ direct evidence of the employment’s discriminatory intent to move past summary judgment.” ’ ” (Ibid.) For example, to raise a triable issue concerning age-based animus, a statement by the employer’s representative that “we’re looking for someone younger” is enough. (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550, fn. omitted (DeJung).) Similarly, racial animus may be shown by the open and routine use of racial slurs, and gender-based animus may be shown by statements that the plaintiff should “take ‘a course at charm school’ ” or “ ‘walk more femininely, talk more femininely, dress more femininely . . . and wear jewelry.” (Davis v. Chevron U.S.A., Inc. (5th Cir. 1995) 14 F.3d 1082, 1085, fns. omitted.)
Of course, animus alone is not enough to prove retaliation or other employment discrimination: An employee claiming employment discrimination also must show causation—that is, that the employer took adverse action against the employee because of discriminatory animus. (DeJung, supra, 169 Cal.App.4th at p. 550; Zamora, supra, 71 Cal.App.5th at p. 35.) However, to raise a triable issue concerning causation, a plaintiff need not present evidence that everyone involved in taking adverse action against the plaintiff harbored discriminatory animus. To the contrary, a jury reasonably may infer that an adverse action was motivated by animus based on evidence that one significant participant in deciding to take that action harbored animus: “[S]howing that a significant participant in [the adverse] employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (DeJung, at p. 551.)
2. Retaliatory Animus Harmon presented sufficient direct evidence to raise a triable issue whether Nelson, the Institute’s executive director and a member of the “leadership team” that
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decided to terminate Harmon, was hostile to Harmon because of Harmon’s complaints about the conduct of Nelson, her husband Sheehan, and the Institute’s management.
Harmon presented evidence of Nelson’s general hostility to criticism. After Sheehan, the Institute’s general counsel and a member of its board of directors, used racially derogatory language at a DEI training session, the Institute held a healing session to address his misconduct. However, staff members found Sheehan’s apology for his conduct inauthentic and criticized Nelson and the Institute’s leadership team. Nelson reacted hostilely. She told the staff that “[i]f you don’t like being here, you are free to leave.” Eichert, the director of the LGCA project, later told Nelson that this statement was “concerning” because “the staff might think it was a threat.” A jury reasonably could infer that Eichert was being diplomatic and that Nelson had threatened to fire staff members unsatisfied with the Institute’s leadership and response to Sheehan’s misconduct.
A reasonable jury also could find infer from Nelson’s general hostility to criticism that Harmon’s formal complaint and the criticism in it made Nelson hostile to Harmon. In that complaint Harmon not only asserted that Sheehan’s apology was “largely experienced as inauthentic” and failed to display sensitivity to the impact his statement had on staff members. Harmon also asserted that it became clear that “there was no meaningful moving forward or authentic accountability” and that the “hostile and toxic work environment” created by Sheehan and Nelson was “worsening.” In addition, Harmon expressed “deep and ongoing concerns about this organization and the harm [employees] have experienced on the part of the leadership,” which she asserted are all family members. Even worse, Harmon accused Nelson herself of “several incidents of inappropriate racialized and transphobic language” and demanded a third-party investigation. If Nelson reacted hostilely to the staff’s criticism at the healing session,
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her reaction to the much more pointed and personal criticisms in Harmon’s complaint was likely even more hostile.
This conclusion is confirmed by Nelson’s subsequent statements about Harmon.
In August 2022, after Harmon filed her internal complaint and the investigation demanded in it had begun, Nelson and her son Daniel Paul Nelson spoke with Shaun Little Horn, who worked for the LPLP. According to Little Horn, during this conversation, Nelson said that “she [Heidi Harmon] causes us all the trouble,” and “[o]nce this investigation is over, we are going to wait 30 days and let her go.” Little Horn also averred that Nelson said that the Institute was going to let Harmon and two others go “since they are trouble.” Based on these statements, a reasonable jury could infer that the “trouble” to which Nelson referred was Harmon’s criticism of Nelson and the Institute’s leadership that led to the third-party investigation, and that Nelson was planning to terminate Harmon because of Harmon’s criticism and complaint.
This conclusion is bolstered by the statements made by Nelson’s son Daniel Paul Nelson earlier in the summer. According to Little Horn, shortly after the second DEI training session in which his father used inappropriate language, Daniel Paul Nelson told Little Horn that his father’s statement was a mistake but that, “if these people keep on harping about it, we are going to have to let these people go.” Moreover, Daniel Paul Nelson expressly identified Harmon as one of the people that would have to be “cut . . . loose” because of her complaints: “She [Heidi Harmon] just can’t get over it, and get on, and we are paying her more than anybody, so we need to cut her loose.” Based on this statement, as well as Nelson’s statement at the healing session, Harmon’s complaint, and Nelson’s own statement to Little Horn, a jury could conclude that Nelson and the Institute were hostile to criticism in general and to Harmon’s criticisms in particular.
The Institute does not explain why a jury could not find animus based on this evidence. Instead, it argues that Nelson’s statement at the healing session was “not
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retaliatory” because the statement was made before Harmon’s complaint and thus could not have been intended to retaliate against the complaint. That is correct. However, whether or not Nelson’s statement at the healing session was retaliatory, it shows that Nelson was hostile to criticism and thus not likely to respond well to the particularly trenchant criticisms in Harmon’s complaint.
The Institute also tries to downplay Nelson’s statement in the healing session by asserting, based on Nelson’s deposition testimony, that she merely told employees that they “could leave if they would be happier elsewhere.” The Institute is certainly entitled to dispute Harmon’s account of the healing session and urge the jury to believe Nelson’s deposition testimony about that session. However, that testimony does not help the Institute on summary judgment because “[t]he purpose of summary judgment is not to resolve issues of fact, but rather to determine whether there are issues of fact that must be resolve through a trial.” (EHP Glendale, LLC v. Conty of Los Angeles (2011) 193 Cal.App.4th 262, 270 (EHP Glendale).) As a consequence, in determining whether there is a triable issue concerning retaliatory animus, we must focus on the evidence submitted by Harmon and resolve all conflicts between that evidence and Nelson’s testimony in favor of Harmon as the non-moving party. (See, e.g., Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzer).)
The Institute also tries to explain away the statements that Nelson and her son made to Little Horn, asserting that those statements reflect “understandable disappointment” that employees kept re-airing the same grievances and that the comments were too vague to demonstrate any retaliatory animus. These are also arguments that the Institute is entitled to make to the jury. However, they fail to show that a reasonable jury could not find that Nelson and the Institute were hostile to criticism and harbored animus against Harmon for the criticisms of Nelson, Sheehan, and the Institute in Harmon’s internal complaint.
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We therefore conclude that the evidence presented by Harmon raised a triable issue concerning retaliatory animus.
3. Causation Harmon also raised a triable issue concerning causation. Harmon presented evidence that Nelson was involved in Harmon’s termination.
Because Harmon was the LGCA’s Senior Public Affairs Officer and the Institute’s highest paid employee, it is natural to assume that Nelson, the Institute’s Executive Director, was involved in the decision to terminate Harmon. Far from suggesting otherwise, Nelson testified in her deposition that “I gave final approval to everything.” In addition, Nelson was on the Institute’s “leadership team,” and Eichert, the LGCA’s director and Harmon’s direct superior, testified that the decision to lay off LGCA employees was “a decision that the leadership team came to.” Based on this evidence, a reasonable jury could find that Nelson participated in the decision to terminate Harmon. As Daniel Paul Nelson also was a member of the leadership team, a reasonable jury could find as well that he participated in the decision.
In light of the hostility of Nelson and her son towards Harmon, and their statements to Little Horn about terminating Harmon because of the trouble caused by Harmon’s criticisms, a jury also could find that the termination was motivated by retaliatory animus. As noted above, in August 2022 after Harmon filed her complaint and the third-party investigation demanded by Harmon began, Nelson told Little Horn that Harmon “causes us all the trouble” and “[o]nce this investigation is over, we are going to wait thirty 30 days and let her [Heidi Harmon] go.” Based on this statement, and Daniel Paul Nelson’s earlier statement that the Institute would have to cut Harmon loose because she would not stop complaining about Sheehan’s misconduct, a reasonable jury could find that Nelson and Daniel Paul Nelson carried out their plan of terminating Harmon in response to her criticisms and, in particular, her complaint.
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This conclusion is supported by DeJung, supra, 169 Cal.App.4th 533. In DeJung, a part-time commissioner claimed that his application for a position as a full-time commissioner was denied because of age discrimination. (Id. at pp. 539-540.) The plaintiff presented evidence that the presiding judge of the Superior Court, who chaired the executive committee leading the hiring effort, told plaintiff that “ ‘we’re looking for someone younger.’ ” (Id. at p. 550, fn. omitted; see id. at pp. 540-542.) Though there was no evidence that others involved in the hiring decision harbored discriminatory animus, based on the presiding judge’s statement, his participation in the decision, and his leadership of the Superior Court and the executive committee, DeJung held that summary judgment should have been denied. (Id. at p. 552.) In so doing, the decision reasoned that “showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (Id. at p. 551.)
This same reasoning applies here. Like the presiding judge in DeJung, Nelson was the leader of the organization making the decision at issue, she participated in the decision, and she expressed discriminatory animus. Consequently, as in DeJung, a significant participant in the employment exhibited animus, and a jury reasonably could find that this animus influenced the decision. Indeed, the evidence of causation is even stronger in this case because Daniel Paul Nelson, another member the Institute’s leadership team and another participant in the decision to terminate Harmon, also was hostile to Harmon because of her criticisms.
The Institute objects that the statements by Nelson and her son to Little Horn were made six months before Harmon was terminated. That is true, and a jury might find that during this period Nelson’s and her son’s hostility towards Harmon abated. However, a jury also reasonably might conclude that they remained hostile. Moreover, at the
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summary judgment stage we must view the evidence in the light most favorable to Harmon as the non-moving party and determine only whether there are issues of fact that must be resolved through a trial. (See Saelzer, supra, 25 Cal.4th at p. 768; EHP Glendale, supra, 193 Cal.App.4th at p. 270.) As a consequence, the Institute’s timing argument does not eliminate the triable issue.
The Institute also asserts that the decision to terminate Harmon was made by Eichert, the LGCA’s director, not Nelson or the leadership team. It is true that Nelson testified that Eichert made the decision to terminate Harmon, and that the Institute’s controller said the same. However, Eichert himself testified differently. As noted above, Eichert testified that, while he played the primary role, the decision was made in conjunction with the leadership team. Thus, there is a conflict in the evidence concerning whether Eichert was the sole decision maker. That conflict should not be resolved on summary judgment: As noted above, “[t]he purpose of summary judgment is not to resolve issues of fact, but rather to determine whether there are issues of fact that must be resolve through a trial.” (EHP Glendale, supra, 193 Cal.App.4th at p. 270.)
Finally, the Institute argues that Harmon was terminated for financial reasons:
namely, that the Institute lost funding for the LGCA and had to eliminate multiple positions, including Harmon’s. As the trial court recognized, this is a plausible explanation for Harmon’s termination, and the Institute may be able to persuade a jury that Harmon was terminated for this reason. However, this argument does not justify granting summary judgment because the role of summary judgment is not to determine the most likely explanation for Harmon’s termination, but to determine whether there is a triable issue that should be submitted to a jury. Because there is evidence that retaliatory animus may have motivated the decision to terminate Harmon, the question whether the termination was based on financial reasons must be left to a jury to decide.
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We therefore conclude that Harmon raised triable issues concerning both animus and causation. Consequently, summary judgment should not have been entered on Harmon’s retaliation claim or her derivative claims for failing to prevent discrimination, aiding and abetting, and wrongful termination.
4. Hearsay In addition to arguing that the evidence presented by Harmon failed to raise triable issues concerning animus or causation, the Institute contends that the averments in Little Horn’s declaration about statements Nelson and Daniel Paul Nelson made to him are inadmissible hearsay. Although there is other evidence of animus and causation—such as Nelson’s admissions concerning her statements at the healing sessions, the internal complaint, and Eichert’s testimony concerning the termination decision—we need not consider whether that evidence alone raises triable issues because Harmon is not using the statements by Nelson and her son as hearsay.* Whether a statement is hearsay depends upon the purpose for which it is offered.
A statement is hearsay if made outside of court—for example, “other than by a witness testifying at the hearing”—and “offered to prove the truth of the matter stated.” (Evid.
* We also do not need to resolve whether the trial court’s ruling sustaining the Institute’s hearsay objections is subject to review de novo or for abuse of discretion. Evidentiary rulings are ordinarily reviewed for abuse of discretion, and following that rule most published decisions review evidentiary rulings made on summary judgment for abuse of discretion. (See LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 946; see also id. at p. 946, fn. 3 [listing cases].) By contrast, a decision from this district held that evidentiary objections at the summary judgment stage should be reviewed de novo. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1450-1451; accord Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 816-817; Samantha C. v. State Dept. of Developmental Services (2012) 207 Cal.App.4th 71, 78.) However, even where the abuse of discretion standard is applied, appellate courts review de novo evidentiary objections that raise questions of law such as whether a statement is hearsay. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 [“De novo review is proper where evidentiary objections raise questions of law, such as whether or not a statement is hearsay.”].)
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Code, § 1200, subd. (a); see also Hart v. Keenan Properties, Inc.(2020) 9 Cal.5th 442, 447, fn. omitted (Hart) [“Hearsay is an out-of-court statement offered to prove the truth of its content.”].) Unless it falls within an exception, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).) However, when the statement is not offered to prove the truth of the matter asserted, it is not hearsay, and no hearsay exception is needed for admission of the statement. (Hart, at p. 447 [holding that a statement is not hearsay when “offered for some purpose independent of the truth of the matters it asserts”].) To be offered for such a nonhearsay purpose, a statement “ ‘must be capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true.’ ” (Ibid.)
Nelson’s statement to Little Horn is not hearsay because Harmon offered the statement for a nonhearsay purpose. According to Little Horn, Nelson said that “she [Heidi Harmon] causes us all the trouble” and “[o]nce this investigation is over, we are going to wait 30 days and let her [Heidi Harmon] go.” However, Harmon did not offer this statement to prove that she caused trouble or that Nelson was going to fire her 30 days after the investigation into her complaint concluded—the matters the statement asserted. Instead, Harmon offered the statement to show Nelson’s hostility and animus towards her based on her criticism and complaint (“the trouble” and resulting “investigation”). Using out-of-court statements to prove a speaker’s hostility or animus is a nonhearsay purpose. (See, e.g, People v. Ireland (1969) 70 Cal.2d 522, 530; Ortiz v. Dameron Hospital Ass’n (2019) 37 Cal.App.5th 568, 585; see also Bergene v. Salt River Project Agric. Imp. and Power Dist. (2001) 272 F.3d 1136, 1141 [holding that use of out- of-court statement of supervisor to show making of threat and prove pretext is not hearsay]. Thus, the hearsay rule does not prohibit use of Nelson’s statement to Little Horn to prove that Nelson harbored animus against her.
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Similarly, the hearsay rule does not prohibit use of Daniel Paul Nelson’s statement to Little Horn. Much like his mother, Daniel Paul Nelson told Little Horn that if people “keep harping about” Sheehan’s statement, “we are going to have to let these people go,” and that because “[s]he [Heidi Harmon] just can’t get over it, . . . we need to cut her loose.” Just as Nelson’s statement to Little Horn was used for the nonhearsay purpose to show Nelson’s hostility and animus towards Harmon, Daniel Paul Nelson’s statement was used to show his hostility and animus. Thus, for the same reason the hearsay rule did not bar Nelson’s statement, it does not bar Daniel Paul Nelson’s statement either.
Accordingly, we conclude the out-of-court statements of Nelson and her son were not offered for a hearsay purpose. In addition, because the Institute has not argued that the statements were inadmissible based on lack of foundation or any other reason, we conclude that the statements are admissible. We also conclude that Harmon raised a triable issue concerning retaliation and derivative claims and that therefore the trial court erred in granting the Institute summary judgment on those claims.
B. Negligent Hiring and Supervision Harmon argues that the Institute failed to satisfy its initial burden on summary judgment for her negligent hiring and supervision claim. As explained below, we agree.
1. A Moving Defendant’s Initial Burden A defendant moving for summary judgment bears the initial burden of showing that one or more elements of a claim cannot be established or that there is a “complete defense” to the claim. (Code Civ. Proc., § 437c, subd. (p)(2).) This burden may be satisfied in multiple ways. First, a defendant may show that there are no triable issues as to any element of an applicable affirmative defense. (Id., subd. (o)(2); see Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-468.) Second, the defendant may present affirmative evidence conclusively disproving as a matter of law an essential element of plaintiff’s claim. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 848-849
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(Eriksson).) Third, a defendant may show through its own evidence, such as factually deficient discovery responses from plaintiff, that the plaintiff “does not possess[] and cannot reasonably obtain” the evidence needed to prove an element of the plaintiff’s claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) If the defendant fails to meet its initial burden, its motion must be denied, and the plaintiff “ ‘need not make any showing at all.’ ” (Consumer Cause, at p. 468.)
2. Analysis In its moving papers below, and again on appeal, the Institute did not attempt to show through Harmon’s discovery responses that she did not possess and cannot reasonably obtain the evidence needed to establish her negligent hiring and supervision claim. Instead, it argued the exclusivity provisions of the Workers’ Compensation Act (Lab. Code, § 3200 et seq.) provide a complete defense to the claim, or, alternatively, that the undisputed facts conclusively disprove the element of foreseeability as a matter of law. We are not persuaded.
a. Workers’ Compensation Exclusivity The Workers Compensation Act does not bar an employee from making claims arising out of the employer’s alleged violation of fundamental public policies. The Act reflects a “ ‘compensation bargain’ ”: The employee is afforded “relatively swift and certain payment of benefits to cure or relieve the effects of the [harm suffered] without having to prove fault,” but in exchange for that remedy the employee “ ‘gives up the wider range of damages potentially available in tort.’ ” (Privette v. Superior Court (1993) 5 Cal.4th 689, 697.) However, this exclusivity rule “does not apply to an injury resulting from conduct in violation of a fundamental public policy” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 368), because employer actions that violate such policies “ ‘cannot under any reasonable viewpoint be considered a “normal
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part of the employment relationship.” ’ ” (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 695 (Huffman).)
The Worker’s Compensation Act does not bar Harmon’s negligent hiring and retention claim because the claim asserts a violation of fundamental public policies. In particular, Harmon alleges that the Institute negligently hired and supervised Nelson and Sheehan “by placing [them] in executive positions . . . when it knew or should have known of their propensities for unlawful behavior including racial discriminat[ion], gender discrimination[,] retaliation, and other misconduct.” Thus, Harmon’s claim is based on allegations that the Institute negligently allowed behavior violating fundamental public policies against racial and gender discrimination and retaliation, and therefore the Workers’ Compensation Act does not bar it.
Citing Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606, the Institute asserts that the Worker’s Compensation Act “provides the exclusive remedy for Ms. Harmon’s negligence-based claims.” However, the Coit case did not involve an employee claim. Instead, the case concerned a coverage dispute in which a company sought to recover the costs of defending a sexual harassment claim against its president. (Coit, at p. 1602.) The decision asserted in dictum, that “any claim for mere negligence by Coit would be barred here by the workers’ compensation laws, since [the president] was the employee of Coit and may not sue for its allegedly negligent or improper supervision.” (Id. at p. 1606.) Moreover, this assertion was ill-considered. The decision cited Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 161 (Cole) in support of that assertion. (Coit, at p. 1606.) However, Cole did not hold that negligence-based claims are categorically limited to the remedy of workers’ compensation. To the contrary, while recognizing that the Worker’s Compensation Act encompasses claims arising from conduct by employers that can be expected to occur with substantial frequency in the working environment, Cole explicitly recognized that
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the Act excludes claims arising from “conduct where the employer . . . stepped out of [its] proper role[].” (Id. at p. 161.) Racial discrimination, gender discrimination, and retaliation against protected conduct are beyond that role.
Accordingly, we conclude that the Institute’s workers’ compensation exclusivity defense fails and does not satisfy its initial burden on summary judgment.
b. Foreseeability In the trial court, the Institute argued in the alternative that it met its initial burden on summary judgment by showing that Harmon could not establish foreseeability, an essential element of her negligent hiring or retention claim. (See Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1565 [“ ‘Liability results . . . [when] the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment . . . .’ ” (Italics omitted.)].) Here again, we disagree.
In the trial court, the Institute presented evidence that the alleged discrimination and retaliation of Nelson and Sheehan was not foreseeable. In particular, the Institute presented evidence that together Sheehan and Nelson had over 100 years’ experience in “the social justice space,” including their resumes listing many accomplishments in that area. The Institute also presented evidence that before Harmon’s complaint “no other employee had ever made a complaint to human resources about Sheehan or Nelson using racialized language,” and it pointed out that the internal investigation found that they “committed no illegal conduct.”
While this evidence suggests that the Institute has a strong defense against Harmon’s claims, it does not satisfy the Institute’s initial burden on summary judgment because it does not conclusively disprove that the Institute knew Nelson and Sheehan posed a risk of racial and gender discrimination or retaliation. First, none of the evidence addressed Harmon’s allegation of gender discrimination and thus fails to disprove all of Harmon’s theories of liability. (See Hawkins v. Wilton (2006) 144 Cal.App.936, 946-947
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[Defendant bears the initial burden to show it is entitled to judgment with respect to all theories of liability asserted by the plaintiff]; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-717.) Second, the evidence that the Institute did not receive any complaints similar to Harmon’s only eliminates one possible way the Institute could have known Nelson and Sheehan posed a risk of subjecting employees to racialized language. (See Eriksson, supra, 191 Cal.App.4th at pp. 849-850.)
Accordingly, we conclude that the evidence presented by the Institute did not conclusively disprove Harmon’s negligent hiring and supervision claim, and therefore it failed to satisfy its initial burden on summary judgment.
C. Defamation In granting summary judgment, the trial court ruled that Harmon’s defamation claim failed as a matter of law because the allegedly defamatory statement, which was made by Nelson to the investigator Pyne, was protected by the common interest privilege. On appeal Harmon argues that there was evidence of malice raising a triable issue concerning the privilege and asserts that Nelson’s statement was defamatory per se and, thus, actionable despite her failure to present evidence of special damages. We requested supplemental briefing on the latter issue. As explained below, we now conclude that Nelson’s statement to Pyne was not defamatory per se and that Harmon’s defamation claim fails because of the absence of evidence of special damages.
Slander is a form of defamation that, in contrast to libel, is uttered orally. (Civil Code, § 44 [form of defamation]; id., § 46 [uttered orally].) Defamation is “the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage” (Smith v. Maldanado (1999) 72 Cal.App.4th 637, 645), and Civil Code section 46 lists five types of such damages (Civil Code, § 46, subds. (1)-(5)). “A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and requires no proof of actual damages.” (Regalia v.
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The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367 (Regalia).) However, the Supreme Court held long ago that only “words clearly conveying a meaning within one of the statutory categories are actionable per se.” (Washer v. Bank of America (1943) 21 Cal.2d 822, 827 (Washer), disapproved on other grounds by MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551.)
The third category in Civil Code section 46 concerns professional reputation. It makes slander per se any false and unprivileged oral communication that “[t]ends directly to injure [a person] in respect to his office, profession, trade or business” by imputing either “general disqualification in those respects which the office or other occupation peculiarly requires” or “something . . . that has a natural tendency to lessen its profits.” (Civil Code, § 46, subd. (3).) However, to fall within this category, a false statement must involve “ ‘more than general defamation of the victim’s character.’ ” (Regalia, supra, 172 Cal.App.4th at p. 369.) The statement instead “ ‘must go to a characteristic particularly relevant to the victim’s occupation.’ ” (Ibid.; see also Correia v. Santos (1961) 191 Cal.App.2d 844, 853 [“ ‘[I]t is not sufficient that the words be merely injurious to one whatever his pursuit, but they must prejudice him in the special profession or business in which he is actually engaged.’ ”].)
In her complaint, Harmon alleged that “Ms. Nelson falsely informed Mr. Pyne that Plaintiff asked for the DEI training because of inappropriate, racist language that the Plaintiff had used.” However, Harmon failed to produce evidence substantiating this allegation. Instead, the evidence showed a far more innocuous accusation: that “Ms. Harmon told Sara Nelson that she thought training would be useful because Ms. Harmon had used vocabulary inappropriately in a discussion regarding environmental justice.” Thus, the issue before us is whether the statement that Harmon “used vocabulary inappropriately” in an environmental justice discussion constitutes slander per se.
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This statement does not “clearly convey[]” a general disqualification for Harmon’s profession. (Washer, supra, 21 Cal.2d at p. 827; Regalia, supra, 172 Cal.App.4th at p. 368.) Harmon asserts that her position as Senior Public Affairs Officer for LGCA required “credibility, judgment, and the ability to speak appropriate and effectively on issues of environmental and social justice,” and Nelson’s statement to Pyne imputed that she “lacked the judgment, sensitivity, and communication” needed for this role. However, the statement at issue merely accused Harmon of having “used vocabulary inappropriately” in an environmental justice discussion, and Harmon fails to explain how such a vague and potentially innocuous charge suggests that she lacks the judgment, sensitivity, and communication skills needed for her profession.
This conclusion is bolstered by the context in which the accusation about using vocabulary inappropriately was made. According to Nelson’s statement, in explaining why she thought DEI training would be useful, Harmon admitted to using inappropriate vocabulary “in a discussion” about environmental justice. (Italics added.) As a general rule, “[a] statement imputing a single mistake or act of misconduct in office” is actionable “only if the act fairly implies an habitual course of similar conduct.” (Rest.2d Torts, § 573, com. d.; see generally 1 Sack, Libel, Slander, and Related Problems (4th ed. 2013) § 2:4.15, p. 2-74.) Thus, courts “ ‘look[] for conduct that might be deemed to reflect character or at least habitual misconduct rather than a passing peccadillo.’ ” (Regalia, supra, 172 Cal.App.4th at p. 369, quoting 2 Dobbs, Law of Torts (2001) § 408, p. 1142.) Here, the statement not only concerns a single incident; it also shows that Harmon recognized her mistake and sought training, presumably to avoid making similar ones in the future. Making a single mistake of unspecified severity that one recognizes and seeks to avoid in the future does not suggest general disqualification.
We therefore conclude that the evidence presented by Harmon failed to show slander per se and that therefore she was required to present evidence of special damages
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in order to raise a triable issue concerning defamation. Because Harmon failed to present such evidence, her defamation claim failed as a matter of law and was properly denied.
III. DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to vacate the order granting summary judgment, to grant summary adjudication in favor of Nelson on Harmon’s sixth cause of action for defamation, and to proceed to trial on the other causes of action. Harmon is entitled to reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
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BROMBERG, J.
WE CONCUR:
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GREENWOOD, P. J.
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DANNER, J.
Harmon v. The Romero Institute et al. H053222