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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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

8
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

9
(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

11
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

16
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.

17
 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.”].)

18
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.

19
 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

20
(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

21
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

22
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

23
[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.

24
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.

25
 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

26
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).)

27
 ____________________________
BROMBERG, J.

WE CONCUR:

____________________________________
GREENWOOD, P. J.

____________________________________
DANNER, J.

Harmon v. The Romero Institute et al.
H053222