Case 2:17-cv-03366-PSG-AS Document 38 Filed 07/24/17 Page 1 of 8 Page ID #:425

1 Felicia Medina (SBN 255804)

fmedina@medinaorthwein.com
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Jennifer Orthwein (SBN 255196)
3 jorthwein@medinaorthwein.com
MEDINA ORTHWEIN LLP
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1322 Webster St #200
5 Oakland, CA 94612
Telephone: (510) 679-2145; Facsimile: (510) 217-3580
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7 Xinying Valerian (SBN 254890)

xvalerian@sanfordheisler.com
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Kevin Love Hubbard (SBN 290759)
9 khubbard@sanfordheisler.com
SANFORD HEISLER SHARP, LLP
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111 Sutter Street, Suite 975
11 San Francisco, CA 94104
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Telephone: (415) 795-2020; Facsimile: (415) 795-2021
Attorneys for Plaintiff Zola Mashariki
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14 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
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ZOLA MASHARIKI, Case No.: 2:17-cv-03366-PSG-AS
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17 Plaintiff, PLAINTIFFS OPPOSITION TO

v. DEFENDANT STEPHEN HILLS
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MOTION TO DISMISS
19 VIACOM INC.; et al.,
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Date: August 14, 2017
Defendants. Time: 1:30 p.m.
21 Place: Courtroom 6A
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Judge: Hon. Phillip S. Gutierrez

23 Complaint filed: May 3, 2017

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1 TABLE OF CONTENTS
2 I. INTRODUCTION ................................................................................................................................ 1
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II. LEGAL STANDARD........................................................................................................................... 1
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III. DEFENDANT HILL IS PERSONALLY LIABLE FOR HIS HARASSMENT OF MS.
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MASHARIKI .................................................................................................................................. 2
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IV.CONCLUSION ..................................................................................................................................... 4
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PLAINTIFFS OPPOSITION TO DEFENDANT HILLS MOTION TO DISMISS
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1 TABLE OF AUTHORITIES
2 CASES
3 Federal Cases
4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................ 1
5 Assn for L.A. Deputy Sheriffs v. Cnty. of L.A., 648 F.3d 986 (9th Cir. 2011) .................... 1
6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................ 1
7 Benton v. New Albertsons, Inc., No. CV083365CASAJWX, 2008 WL 11340296, (C.D.
8 Cal. July 24, 2008) ..................................................................................................... 3
9 Clark v. KMart Corporation, No. 2:10-CV-04047-JHN, 2010 WL 4235852, (C.D. Cal.
10 Oct. 18, 2010) ............................................................................................................ 2
11 Davis v. Scherer, 468 U.S. 183 (1984) ................................................................................ 2
12 Hale v. Bank of Am., N.A., No. CV 12-10064 MMM PJWX, 2013 WL 989968, (C.D. Cal.
13 Mar. 13, 2013) ........................................................................................................... 4
14 Scheuer v. Rhodes, 416 U.S. 232 (1974) ............................................................................. 2
15

16 State Cases
17 Jenkin v. G.M. Hughes Electronics, 46 Cal. App. 4th 55 (Cal. Ct. App. 1996) .................. 2
18 Roby v. McKesson Corp., 47 Cal. 4th 686 (Cal. 2009)........................................................ 4
19

20 STATUTES
21 State Statutes
22 California Fair Employment and Housing Act (FEHA) .................................................. 1, 2
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PLAINTIFFS OPPOSITION TO DEFENDANT HILLS MOTION TO DISMISS
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1 I. INTRODUCTION
2 Defendant Stephen Hill is a repeat harasser that Viacom and BET have allowed to
3 harass and intimidate women, like Ms. Mashariki, with impunity and for years on end.
4 Plaintiff rightfully brought a claim under Californias Fair Employment and Housing Act
5 (FEHA) for hostile work environment and named Stephen Hill, BETs former President
6 of Programming, as an individual defendant.
7 State and federal courts interpreting the FEHA have unequivocally held that
8 individuals may be held liable for sexual harassment and hostile work environment under
9 Californias robust anti-discrimination employment statute. Indeed, courts have held that
10 even a single allegation can support a valid claim for harassment at the pleading stage.
11 Here, Ms. Masharikis allegations as to Defendant Hill are detailed, clear, and
12 plentiful. Defendants regurgitated arguments concerning lack of notice and shotgun
13 pleading are baseless. Simply put, Defendant Hills Motion to dismiss Count IX must be
14 denied and this matter ought proceed past the pleading stage in earnest.
15 II. LEGAL STANDARD
16 The standards for a Rule 12 motion to dismiss are well established. To determine
17 whether a complaint states a claim upon which relief can be granted, the Court must assume
18 that all the allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp.
19 v. Twombly, 550 U.S. 544, 555 (2007). From the factual allegations in the complaint, the
20 court then draws all reasonable inferences in favor of the plaintiff. Assn for L.A. Deputy
21 Sheriffs v. Cnty. of L.A., 648 F.3d 986, 991 (9th Cir. 2011). The complaint need only state
22 a claim to relief that is plausible on its face, alleging no more than the factual content
23 necessary to allow[] the court to draw the reasonable inference that the defendant is liable
24 for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
25 omitted).
26 [A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual
27 proof of those facts is improbable, and that a recovery is very remote and unlikely.
28 Twombly, 550 U.S. at 556 (internal quotation marks omitted). The issue is not whether a
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1 plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
2 support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) overruled on other
3 grounds by Davis v. Scherer, 468 U.S. 183 (1984)). At the pleading stage, plaintiffs must
4 merely nudge[] their claims across the line from conceivable to plausible. Twombly, 550
5 U.S. at 570. Under that standard, Defendant Hills Motion to Dismiss Count IX of Ms.
6 Masharikis Complaint (Dkt. No. 24), should be denied. 1
7 III. DEFENDANT HILL IS PERSONALLY LIABLE FOR HIS HARASSMENT
8 OF MS. MASHARIKI

9 Defendant Hill is liable in his individual capacity for the hostile work environment
10 he created under FEHA. California Government Code Section 12940(j)(3) provides that
11 [a]n employee . . . is personally liable for any harassment prohibited by this section that
12 is perpetrated by the employee . . . .). Based on the plain meaning of the statute and other
13 considerations, California federal and state courts have consistently and unsurprisingly
14 have held that individual supervisors can be held liable for creating a hostile work
15 environment or for sexual harassment. Specifically, in Jenkin v. G.M. Hughes Electronics,
16 46 Cal. App. 4th 55 (Cal. Ct. App. 1996), the court concluded that it was the intent of the
17 legislature to place individual supervisory employees at risk of personal liability for
18 personnel conduct constituting harassment.
19 Federal courts in California interpreting the FEHA have similarly held that the
20 statute imposes individual liability on supervisors like Defendant Hill. Specifically, in
21 Clark v. KMart Corporation, No. 2:10-CV-04047-JHN, 2010 WL 4235852, (C.D. Cal.
22 Oct. 18, 2010), the court declined to dismiss a FEHA claim for hostile work environment
23 against an individual defendant finding that the FEHA provides for such liability. The
24 court also disagreed with the defendants contention that the Plaintiff failed to allege
25 sufficient facts to support such a claim. In the courts view the allegations contained in
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Plaintiff agrees that Counts II and VIII should be dismissed as to Defendant Hill.
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1 four paragraphs of the complaint established a plausible claim of an abusive working

2 environment. Id. at *2.
3 So too here, Plaintiff has alleged that Defendant Stephen Hill, among other things:
4 repeatedly targeted and drove out women, especially women of color, whom he found
5 threatening, and harassed Ms. Mashariki to damage her future at BET (Compl.
6 7); exhibited degrading treatment of women through his hostile demeanor towards women,
7 including intimidating and threatening Ms. Mashariki and undermining her (Compl.
8 31); micromanaged female employees in a way that made them feel intimidated and
9 dominated, and inappropriately yelled and was aggressive with female employees (Compl.
10 33); had a repeat history of gender harassment of which Viacom and BET were aware
11 (Compl. 34); verbally attacked and threatened Ms. Mashariki, yelling expletives and
12 shouting, leaving Ms. Mashariki traumatized and shaking (Compl. 39); exhibited conduct
13 that made Ms. Mashariki feel physically unsafe (Compl. 41); and engaged in disparaging,
14 fault-finding, and sabotaging activities against Ms. Mashariki once she went on
15 protective medical leave, falsely suggesting she had committed some malfeasance (Compl.
16 61).
17 Federal courts applying California law have concluded that even a single allegation,
18 much less harassing in nature than the extensive allegations in Ms. Masharikis complaint,
19 can support a valid claim for harassment at the pleading stage. In Benton v. New
20 Albertsons, Inc., for example, the court concluded that an allegation that the defendant
21 displayed a sign in her workplace stating, nobody can authorize Debbie to switch shifts
22 because she is free labor, which, according to plaintiff, was a malicious act that caused
23 her to feel humiliated was enough to support a valid claim for harassment against [the
24 defendant]. No. CV083365CASAJWX, 2008 WL 11340296, at *3 (C.D. Cal. July 24,
25 2008). In light of that single allegation, the court concluded that it cannot be said as a
26 matter of law that [the defendants] alleged conduct in displaying this sign was not
27 harassment under California law. Id. The same is true of Ms. Masharikis much more
28 detailed and fulsome allegations against Defendant Hill.
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2 Moreover, the California Supreme Court has explained that acts of discrimination
3 can provide evidentiary support for a harassment claim by establishing discriminatory
4 animus on the part of the manager responsible for the discrimination, thereby permitting
5 the inference that rude comments or behavior by that same manager was similarly
6 motivated by discriminatory animus. Roby v. McKesson Corp., 47 Cal. 4th 686, 709 (Cal.
7 2009). Defendant Hills argument that the Court should disregard Ms. Masharikis
8 allegations regarding his discriminatory personnel management therefore contradicts well-
9 settled California law. Indeed, in Roby the California Supreme Court held that the Court
10 of Appeal had improperly excluded discriminatory personnel decisions in examining
11 plaintiffs harassment claim and reversed on that basis. Id. In this case, Ms. Masharikis
12 allegations of widespread discrimination support an inference that [Defendant Hills]
13 actions were motivated by discriminatory animus, and thus that a hostile work environment
14 existed. Hale v. Bank of Am., N.A., No. CV 12-10064 MMM PJWX, 2013 WL 989968,
15 at *6 (C.D. Cal. Mar. 13, 2013).
16 Defendant Hills argument that Ms. Mashariki has failed to put Hill on notice of the
17 claim against him merely relies upon the same arguments set forth by Defendants Viacom
18 and BET, and fails for the same reasons. (See Dkt. No. 28 at 12-15.) Plaintiffs complaint
19 specifies which individual or entity is responsible for which action within each charge.
20 (See e.g. Compl. 87 (Defendant Hill engaged in conduct . . .); 136 (Defendant Hill
21 and Scott Mills . . .); 169 (Defendant Hill and Debra Lee . . .)). Indeed, Defendant
22 Hill has been on notice of Plaintiffs allegations since she complained about his harassing
23 behavior prior to the initiation of this lawsuit. (Compl. 41, 46.) As such, Defendants
24 motion to dismiss Count IX must be denied.
25 IV. CONCLUSION
26 Defendant Hills Motion to Dismiss (Dkt. No. 24) should be denied for the foregoing
27 reasons and this matter set for a case management conference at the Courts earliest
28 convenience.
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1 Dated: July 24, 2017 Respectfully Submitted,

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3 _____________________________
Felicia Medina
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5 Felicia Medina
Jennifer Orthwein
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MEDINA ORTHWEIN LLP
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Xinying Valerian
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Kevin Love Hubbard
9 SANFORD HEISLER SHARP, LLP
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Attorneys for Plaintiff Zola Mashariki
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