Filed 5/13/15 Johnson v. County of Los Angeles CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
YOLANDA JOHNSON, B255587
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC481413)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard E. Rico, Judge. Affirmed.
The Law Offices of Marvin L. Mathis and Marvin L. Mathis for Plaintiff and
Appellant.
Gutierrez, Preciado & House and Calvin House for Defendant and Respondent.
******
In this employment case, plaintiff Yolanda Johnson, a longtime employee of the
County of Los Angeles (the County), alleged retaliation, disability discrimination, and
harassment. Johnson appealed from the judgment of dismissal for the County after the
trial court granted the County’s summary judgment motion. We affirm. The County
proffered sufficient evidence of legitimate, nondiscriminatory reasons for its actions. In
addition, the conduct of which Johnson complains does not fall within the meaning of
harassment.
FACTS AND PROCEDURE
1. Allegations of Complaint
Johnson is a 25-year employee with the County. In February 2007, the County
promoted her to Departmental Human Resources Manager III of the Probation
Department. Her duties included supervising the implementation of county, state, and
federal disability discrimination laws.
On December 21, 2009, she injured her upper extremities, neck, and back when
she was moving employee personnel files from one location to another. Johnson also
alleged her job-related stress and strain resulted from retaliation and harassment because
she objected to the County’s unlawful employment practices.
The County initiated a baseless investigation of Johnson after she took time off for
physical and mental health treatment and missed a meeting from which her immediate
supervisor had excused her. On March 31, 2010, her treating physician took her off work
due to a temporary inability to perform her duties. Also on March 31, she received a
negative performance evaluation, notwithstanding her history of receiving a rating of
“outstanding” or “very good” on all prior performance evaluations. The County issued
her a “Notice of Intent to Reduce” (NIR) from Departmental Human Resources Manager
III to Administrative Service Manager III. This demotion caused a reduction in
responsibilities, salary, and benefits.
2
Johnson’s first cause of action alleged retaliation, citing Government Code section
12653.1 Specifically, she alleged the County retaliated against her for complaining of or
reporting disability discrimination against Probation Department employees. Her second
cause of action alleged disability discrimination under section 12940, subdivision (a),
part of the California Fair Employment and Housing Act (FEHA). (§ 12900 et seq.) Her
third cause of action alleged harassment under section 12940, subdivision (k).
2. Summary Judgment Motion
The County moved for summary judgment, arguing (1) the cause of action for
retaliation under section 12653 failed because section 12653 falls under the False Claims
Act (§ 12650 et seq.), and the False Claims Act did not protect Johnson’s complaints; (2)
the cause of action for disability discrimination failed because no person who had a role
in Johnson’s demotion knew she had a disability, the County had nondiscriminatory
reasons for the demotion, and there was no evidence those reasons were pretextual; and
(3) the cause of action for harassment failed because those who allegedly harassed
Johnson did not know she had a disability, and the conduct was not severe or pervasive.
A. Evidence Supporting the Motion
As of November 2005, Johnson was Head of Personnel Operations for the
Probation Department. The County promoted her to Departmental Human Resources
Manager III for the Probation Department in February 2007. The promotion came with
additional compensation, though her job duties remained the same as before. Essentially,
Johnson was head of human resources for the Probation Department. Johnson was
responsible for Probation’s personnel operations, payroll operations, examinations,
recruitment and selection, performance management, classifications, the return-to-work
1 Further undesignated statutory references are to the Government Code unless
otherwise noted.
3
program,2 background investigations, employee relations, and grievances. She
supervised 60 to 65 employees when she took over in 2005.
In response to interrogatories, Johnson stated her disability arose when she injured
her shoulders, right hand, right wrist, and lower back on December 21, 2009. She
reported the injuries to her supervisor, Robert Smythe, at the time they happened. On
January 21, 2010, she filled out a claim for workers’ compensation benefits and described
the injuries mentioned above, as well as neck pain, headaches, and anxiety attacks.
Also in response to interrogatories, Johnson identified her demotion as the adverse
employment action at issue. The County submitted voluminous evidence of the process
and investigation that led to the March 31, 2010 NIR. The NIR stated the basis for the
demotion was failure to meet guidelines for ethical behavior, failure to follow established
rules and policies, and failure to perform job duties.
i. Performance Issues
The NIR relied on Johnson’s most recent performance review for the period
July 1, 2009, to March 31, 2010, and identified unresolved performance deficiencies
going back several years. The NIR asserted Johnson had failed to take corrective actions
that the Chief Executive Office (CEO) and the Department of Human Resources
identified in several different performance audits. Much of the County’s summary
judgment evidence consisted of declarations and deposition testimony of the individuals
who performed the audits and Johnson’s superiors, who were responsible for managing
or evaluating her. The County also proffered documentary evidence such as audit reports
and email correspondence. The performance audits and deficiencies identified in the NIR
included the following.
2 The return-to-work program referred to the efforts to literally return injured or ill
employees to work, whether in the same, temporary, permanently modified, or alternate
positions.
4
Department of Human Resources Audit of 2006 to 2007: Analysts with the
County’s Department of Human Resources conducted an audit of the Probation
Department’s human resources division. The audit identified 32 deficiencies within
Probation’s performance management, operations, health and safety, and employee
relations functions. The audit generated corrective actions for each. The analysts created
periodic status reports to monitor the status of corrective actions. The January 2008
status report concluded Probation had not corrected a number of problem areas, including
a backlog of disciplinary actions, noncompliance with Skelly3 guidelines, untimely
processing of grievances, the failure to maintain current medical certification for
employees on leaves of absence, and the failure to resolve pending return-to-work cases.
A June 2009 audit concluded the corrective actions still had not been fully implemented.
(We further discuss the June 2009 audit below.)
February 2008 Directive Regarding Officer Examinations: In January 2008, the
state changed its scoring methodology for the juvenile corrections officer’s and probation
officer’s written tests. The County’s Department of Human Resources directed Johnson
and her subordinates to implement a series of changes to bring Probation into compliance
with the new methodology. They had until March 31, 2008, to comply. By April 23,
2008, Probation had not made the necessary changes, and the County’s Department of
Human Resources tried to assist Probation with implementing the changes. The
June 2009 audit determined Probation still had not fully implemented the changes.
February 2008 Intervention Regarding Detention Services Officer Examinations:
Sometime between 2007 and 2008, Department of Justice monitors recommended that
Probation increase its juvenile hall daytime supervision staff, or Detentions Services
3 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly) held that permanent
civil service employees are entitled to minimum preremoval safeguards, including
“notice of the proposed action, the reasons therefor, a copy of the charges and materials
upon which the action is based, and the right to respond, either orally or in writing, to the
authority initially imposing discipline.” (Id. at p. 215.)
5
Officers (DSO). Probation required approximately 200 additional daytime staff as a
result. Probation had a large backlog of applications for the DSO exam awaiting review
and was not efficiently scheduling exam interviews and pre-employment medical exams.
In or around February 2008, the County’s Department of Human Resources sent staff to
intervene at Probation and oversee the DSO hiring process. The intervention included
written recommendations for the process. After the Department of Human Resources
staff completed their time at Probation, Johnson failed to continue to follow the staff’s
recommendations.
June 2009 Department of Human Resources Audit: On June 29, 2009, the
Department of Human Resources commenced an audit of Probation because the County’s
CEO was concerned about a backlog of unprocessed employment applications and the
efficiency of Probation’s examination administration process. The 24-page audit report
found Probation had approximately 8,166 applicants at various stages of the application
process, but no plan or process for handling the applications and testing. The backlog
extended back to 2007. The audit also concluded Probation had significant deficiencies
in the administration of examinations, including Johnson’s failure to implement
corrective actions or recommendations from prior audits. The auditors recommended a
six-month evaluation period for monitoring Probation’s efforts to resolve the backlog and
examination issues. The audit report contained specific recommendations for correcting
the deficiencies.
September 2009 CEO Audit: In September 2009, the County’s Board of
Supervisors instructed the CEO to evaluate the effectiveness of Probation’s return-to-
work program. Probation provided the CEO with 440 open return-to-work cases, and the
CEO selected 10 percent of the files for review. The audit identified a number of
deficiencies in the files, such as failure to show ongoing communications with the
employee and employee’s supervisor, failure to show a long-term action plan, failure to
document attempts to explore reasonable accommodations, and failure to document the
interactive process meetings and their outcomes.
6
December 2009 to January 2010 Audit by Probation Technical Assistance Team:
In December 2009, the CEO created the Probation Technical Assistance Team to assess
business processes in Probation, identify deficiencies, and provide assistance in
correcting them. The team assessed Probation in the areas of discipline/advocacy,
examination administration, item control/organization/staffing, and the return-to-work
program. The auditors determined Probation had a backlog of 477 disciplinary actions
and 192 unresolved grievances. The auditors also determined previous interventions
from the Department of Human Resources in the area of examination administration (the
2006-2007 audit, the February 2008 intervention, and the June 2009 audit) had not
resulted in “substantive changes” in examination practices. The auditors found
Probation’s human resources division still was “not effectively or appropriately
administering the examination program.” Further, the auditors found Probation had made
no progress on the corrective action plans for the small number of return-to-work files
reviewed during the September 2009 audit.
At the beginning of 2010, the Department of Human Resources gathered
documentation relating to the various assessments of Probation’s human resources
division and presented it to the acting head of Probation, Acting Chief Probation Officer
Calvin Remington. After reviewing the documentation and consulting with individuals
from the Department of Human Resources, the CEO, and Probation, Remington decided
to demote Johnson.
Remington also decided to give Johnson a rating of “failed to meet expectations”
on her March 2010 performance review, based in large part on the determination that she
had failed to implement corrective actions identified in the foregoing audits. Johnson’s
review stated: “[Y]ou have demonstrated a pattern of willful disregard to implement
corrective measures in numerous areas . . . . This has led to the current malfunctioning
state of many of the HR programs in the Probation Department. This complete failure of
organizational responsibility has defeated any trust or confidence in your ability to
manage the Department’s human resources organization effectively.”
7
ii. Administrative Investigation
Aside from the performance issues, Johnson’s poor rating in the March 2010
performance review was based on her response to an administrative investigation into her
absence at a December 23, 2009 meeting with County Supervisor Gloria Molina. The
NIR likewise cited her failure to be “forthcoming” in the administrative investigation as a
basis for the NIR. Johnson attended a December 22, 2009 meeting with Supervisor
Molina to discuss Probation’s return-to-work program. The supervisor ordered everyone
to return the following day for a further meeting. Johnson indicated she would attend,
but she did not. This meeting was “critical” because Probation’s executive team and
human resources staff were to meet with Supervisor Molina’s office and the CEO on
what was considered a “high-priority assignment”—specifically, Probation was to
demonstrate to the CEO and the supervisor that it had, indeed, acted on the concerns
raised in the September 2009 audit of return-to-work files. Johnson had requested time
off from December 28, 2009, to January 6, 2010. Because of the nature of the meeting,
and allegations that Johnson had improperly failed to attend the meeting because of her
planned vacation that was to start several days later, the County’s Department of Human
Resources conducted an investigation into her absence.
Epifanio Peinado, Assistant Director for the County’s Department of Human
Resources, conducted the investigation. Peinado commenced the investigation on or
around January 11, 2010, at the request of the County’s CEO. He interviewed Johnson,
her immediate supervisor, Smythe, and eight more individuals. Smythe informed
Peinado that he had received a call from Johnson on the night of December 22. Johnson
told Smythe she had a family emergency in Atlanta, Georgia relating to the care and
custody of her daughter’s children and could not attend the meeting on December 23.
Johnson had received a call from her teenage granddaughter that her mother (Johnson’s
daughter) had been arrested, and the four minor grandchildren were left alone as a result.
Smythe recalled that Johnson said she needed to fly out that evening. Other participants
at the December 23 meeting reported that Smythe said Johnson had a family emergency
and was “‘on a plane’ or words to that effect.” Peinado asked Johnson to provide proof
8
of her air travel. Johnson responded that she did not fly, but instead started driving to
Atlanta because she needed to bring her four grandchildren back with her. She began
driving on the evening of December 22 and turned around halfway there because she
received a call that the emergency had been resolved. Because of the inconsistencies in
the evidence about her mode of travel, Peinado asked Johnson to produce receipts for gas
or lodging during her drive, but Johnson stated she did not have any and thus did not
produce any documentation.
In his investigative report, Peinado concluded that the allegation Johnson had
misrepresented her need to be off on December 23 was not substantiated, but it was still
“unclear if there was a family emergency the night of December 22, 2009 that
necessitated [her] need to be out-of-town, because of the conflicting information she
provided to her supervisor and to the investigators about her travel arrangements to
Atlanta, Georgia. In addition, [she] has not provided to date any documentation to
support her statements, regarding her travel arrangements that caused her to be out-of-
town.” Peinado further concluded Johnson (1) reported inaccurate information to Smythe
regarding her travel arrangements when she sought approval to miss the December 23
meeting, and (2) reported inaccurate and incomplete information during the
administrative investigation. Therefore, the investigation determined she had violated
departmental “Directive 1211 that require[d] all employees to cooperate with internal
departmental and external County administrative investigations by providing truthful and
complete responses to questions asked by investigator(s) and provid[ing] any and all
requested information or evidence.”
iii. Skelly Hearing and Final Notice
Johnson’s attorney obtained the materials on which the NIR was based and
Johnson reviewed them. Johnson’s Skelly hearing to respond to the charges in the NIR
took place on April 21, 2010, and was presided over by Cynthia McCoy-Miller, Senior
Deputy Director of the County’s Department of Children and Family Services. Peinado
also attended the Skelly hearing “to be of technical assistance” to McCoy-Miller. After
9
hearing Johnson’s testimony and evidence and the County’s evidence, McCoy-Miller
recommended that the County move forward with its decision to demote Johnson.
On or about May 28, 2010, Johnson received a permanent notice of reduction
signed by Remington, notifying her that she was being demoted as explained in the NIR.
3. Johnson’s Evidence in Opposition to Summary Judgment Motion
Johnson’s opposition argued that the stated reasons for demoting her were
untrue—that is, she asserted the purported performance failures in the NIR had already
been addressed, and she truly had a family emergency to excuse her absence from the
December 23 meeting. Her immediate supervisor Smythe had signed and given her all
prior performance reviews since November 2005 to June 30, 2009. He consistently gave
her very good ratings and glowing reviews that indicated she had met or exceeded
expectations throughout that period. She had no history of disciplinary actions.
The NIR failed to acknowledge Probation’s written responses to some of the
audits, including quarterly status reports relating to the 2006-2007 audit and a finding-by-
finding response to the June 2009 audit, issued in January 2010.
Regarding her March 2010 performance review, Johnson also pointed to what she
thought were procedural improprieties. Remington had been acting head of Probation
less than 60 days when he approved Johnson’s performance review in March 2010.
County policy “suggested” that, when a person has supervised an employee for less than
60 days, another person who has supervised the employee for a longer period be
consulted for the employee’s performance review. In this case, however, neither
Remington’s predecessor nor Smythe was consulted for Johnson’s review. Although
Remington signed the NIR and the performance review, he relied on others in the
Department of Human Resources to draft them. Peinado and his supervisor prepared
these documents and consulted with Remington on them.
Regarding the administrative investigation, Johnson asserted Peinado’s
conclusions were unjustified. Specifically, the evidence did not support the conclusion
that she misrepresented her mode of transportation. Johnson testified she missed the
meeting with the supervisor on December 23 because she received the call that her
10
daughter had been arrested in Atlanta. She advised Smythe of the situation and her
concern that her grandchildren would be placed in protective custody. He approved her
request to be off. After finishing some work for the following day’s meeting, she went
home and began looking at flights. The next morning she decided to drive and left with
her son for Atlanta. En route, she received a call from her daughter saying that the
authorities had released her temporarily. Smythe testified at deposition that Johnson did
not know what mode of transportation she would use when they talked on the night of
December 22. He denied telling anyone that Johnson was going to “fly out of town.”
Johnson argued she was discriminated against because she was injured and
became disabled in December 2009, and she was harassed and retaliated against for
opposing an unlawful practice in return-to-work cases. In particular, Johnson testified
that at the December 2009 meeting with Supervisor Molina, the supervisor directed
Probation to deal with return-to-work cases by either (1) bringing employees back to
work “at their full capacity,” (2) demoting them to a position they could perform, or (3)
discharging them. Johnson responded that the process was not so simple that it could be
reduced to just those three outcomes, and she refused to implement the supervisor’s plan,
but the supervisor did not accept her response. Johnson asked for direction on
implementing the supervisor’s plan; Deputy County Counsel, also present at the meeting,
told her “such a plan would create a liability for the County if written.” Smythe was also
present for the meeting with Supervisor Molina, who was looking at and commenting on
Probation’s return-to-work files. He felt the supervisor’s tone toward him and Johnson as
she was examining the files was “very derogatory, very accusatory, [and] nasty.”
4. Trial Court’s Ruling
The court granted the County’s summary judgment motion in its entirety. First, it
held Johnson had no cause of action for retaliation under the section cited in her
complaint, section 12653, because the False Claims Act did not apply in this case. The
court noted that, even if the complaint cited section 12653 by mistake, Johnson did not
acknowledge the mistake. Second, the court held the disability discrimination cause of
action lacked merit because the County showed it had legitimate, nondiscriminatory
11
reasons for the demotion—namely, performance deficiencies and providing inaccurate
information in the administrative investigation. It found Johnson failed to dispute this
showing with evidence of pretext or discriminatory animus. The court, however,
expressly rejected the County’s argument that the decisionmakers were unaware she had
a disability. The court found Johnson had filed a workers’ compensation claim for her
December 2009 injury and reported the injury to her immediate supervisor. Third, and
finally, the court held the cause of action for harassment failed because there was no
evidence that Johnson was harassed because of a disability.
The court entered a judgment dismissing the complaint with prejudice. Johnson
filed a timely notice of appeal.
STANDARD OF REVIEW
A court shall grant a motion for summary judgment if all the papers show there is
no triable issue as to any material fact and the moving party is entitled to a judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).) As the party moving for summary
judgment, the employer in a FEHA action has the burden of establishing either (1) one or
more elements of the employee’s cause of action cannot be established, or (2) a complete
affirmative defense to the cause of action exists. (Code Civ. Proc., § 437c, subds. (o)(1),
(2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the
employer may show the employee does not possess evidence needed to support a prima
facie case and also cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, present
evidence conclusively negating an element of the cause of action. (Ibid.) Once the
employer has met its initial burden, the burden shifts to the employee to produce
evidence showing a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
On appeal from summary judgment, we review the record de novo and must
independently determine whether triable issues of material fact exist. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.) We resolve any evidentiary doubts or ambiguities and view all
inferences from the evidence in favor of the party opposing summary judgment. (Aguilar
12
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843; Saelzler v. Advanced Group 400,
supra, p. 768.)
DISCUSSION
1. Disability Discrimination Cause of Action
The trial court did not err in granting the motion on the disability discrimination
cause of action. FEHA prohibits employers from discriminating against employees
because of their physical disabilities “in compensation or in terms, conditions, or
privileges of employment.” (§ 12940, subd. (a).) A prima facie case of disability
discrimination under FEHA requires the employee to show he or she (1) suffered from a
disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to
adverse employment action because of the disability. (Faust v. California Portland
Cement Co. (2007) 150 Cal.App.4th 864, 886.) Once the employee establishes a prima
facie case, “the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action.” (Deschene v. Pinole Point
Steel Co. (1999) 76 Cal.App.4th 33, 44.) The employee may still defeat the employer’s
showing with substantial evidence that the proffered reason is pretextual or with other
evidence that the employer acted with discriminatory animus. (Ibid.; Horn v. Cushman &
Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806.) The employee may
demonstrate pretext by showing the proffered reason had no basis in fact, the proffered
reason did not actually motivate the adverse employment action, or the proffered reason
was insufficient to motivate the adverse employment action. (Villanueva v. City of
Colton (2008) 160 Cal.App.4th 1188, 1195.)
An employee does not demonstrate pretext merely by showing “the employer’s
decision was wrong, mistaken, or unwise.” (Horn v. Cushman & Wakefield Western,
Inc., supra, 72 Cal.App.4th at p. 807.) Rather, the employee must show “‘“weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons”’” such that a reasonable factfinder would rationally find the
reasons not credible, and would therefore infer the employer did not act for legitimate
reasons. (Ibid.)
13
Assuming Johnson had evidence to support a prima facie case, the County
proffered substantial, legitimate, nondiscriminatory reasons for her demotion. To begin
with, the County showed significant performance issues. Her March 2010 performance
review covered the period July 1, 2009, through March 31, 2010. Remington
appropriately considered the results of the June 2009 audit, which only commenced on
June 29, for that review period. The results of this audit showed, among other things, that
corrective actions identified in the 2006 to 2007 audit and the 2008 directive regarding
officer examinations still had not been implemented. The June 2009 audit also showed a
large continuing backlog of applicants dating back to 2007. In addition, Remington
appropriately considered the results of the September 2009 audit of the return-to-work
function—showing deficiencies in the administration of return-to-work cases—and the
December 2009 to January 2010 audit by the Probation Technical Assistance Team—
showing deficiencies in disciplinary actions, grievances, examinations, and return-to-
work cases. These audits provided evidence for the conclusion in the performance
review and the NIR that Johnson was not effectively managing the human resources
division of Probation, particularly in that problems from prior years were persisting into
the latest review period.
Johnson contends she presented substantial evidence that these performance issues
were a pretext, but we disagree. She argues pretext is shown by the fact that her prior
performance reviews from November 2005 to June 2009 were all very positive. This
argument is unpersuasive. Those earlier reviews predated the audits in June 2009 and
later, which showed prior problems persisted and identified newer issues. Thus, the
earlier reviews could not possibly have taken into account the results of audits not yet
conducted. She also asserts the performance issues “had been properly addressed by
Probation” before the NIR, and one of the authors of the NIR (Peinado’s colleague in the
Department of Human Resources) acknowledged Probation had properly addressed the
issues. Peinado’s colleague acknowledged being familiar with Probation’s written
response to the June 2009 audit, which Probation sent in January 2010. She did not,
however, say the response properly addressed the issues in the audit. She said that while
14
the Department of Human Resources accepted Probation’s response, it “did not agree
with it.”4 At best, this evidence shows Probation disagreed with the findings of
deficiencies in the audit. This might show the auditors were wrong or mistaken in their
conclusions in the June 2009 audit. But this is not sufficient; the evidence does not show
the decision to demote was based on weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions such that a reasonable factfinder would find the decision
to be incredible. Moreover, Probation’s response addressed the June 2009 audit only, and
not the other findings of deficiencies in the later audits.
Johnson next relies on purported procedural irregularities relating to the March
2010 performance review and the Skelly hearing. None of these things demonstrate her
performance issues were a pretext. She points out that Remington did not prepare her
review and depended on others to prepare it before signing it. It is unclear why the acting
head of Probation had to personally prepare the document or the NIR. While he relied on
others to prepare the documents, he reviewed the documentation underlying them. The
fact that he did not draft them does not show they were a pretext. Likewise, the fact that
he signed the performance review when he had been acting head of Probation for less
than 60 days does not show the review was a pretext for discrimination. Johnson
contends this violated County policy. There was no evidence of a hard and fast policy
prohibiting Remington from signing the review if he had been department head for less
than 60 days. Peinado testified merely that it was “suggested” a department head consult
with the employee’s immediate supervisor if he or she had been in the position for less
than 60 days. Remington’s predecessor, the prior Chief Probation Officer, had signed
Johnson’s previous reviews along with Smythe. But Remington’s predecessor was no
4 Peinado’s colleague was Sandra Taylor, who headed the County’s Department of
Human Resource’s “Impact Division” at the time of the relevant events. The Impact
Division “assist[ed] County departments with assessing the effectiveness and efficiency
of Human Resources functions such as performance management, employee relations,
classifications and compensation.” The Impact Division employed some of the analysts
who conducted the audits at issue.
15
longer with Probation at the time of the review, and Smythe was also no longer with
Probation at the time. Johnson additionally contends it was improper for Peinado to sit in
on her Skelly hearing because he conducted the administrative investigation and lacked
objectivity. She asserts Remington recognized the impropriety in having him there. Her
argument does not accurately represent his testimony, though. Remington testified that in
the case of a high-level manager like Johnson, typically a manager from another County
department would preside over the hearing, and normal practice was to have someone
uninvolved in the investigation serve as the Skelly hearing officer to ensure objectivity.
Remington’s understanding is consistent with case law holding that implied in the Skelly
“right to respond” is a right to respond “before a reasonably impartial, noninvolved
reviewer.” (Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736-737.) In this
case, McCoy-Miller, a manager from the County Department of Children and Family
Services, served as the Skelly hearing officer and decided to recommend demotion.
Peinado’s presence at the hearing does not demonstrate that he was the hearing officer or
that the Skelly hearing lacked objectivity. Johnson and her attorney were also present.
McCoy-Miller considered both the County’s and Johnson’s evidence before making a
decision. There was no showing that McCoy-Miller was partial or an involved reviewer.
The results of the administrative investigation into Johnson’s absence from the
December 23, 2009 meeting provided the second basis for the NIR, and specifically the
findings that she provided inaccurate and incomplete information in requesting time off
and subsequently during the investigation. Johnson contends this was a pretext because
the findings were wrong; she told the truth about the family emergency, and there were
no inconsistencies in the story because Smythe testified at deposition he never told
anyone she was flying to Atlanta. Despite Smythe’s deposition testimony, the evidence
collected by Peinado was, indeed, conflicting. His report of the investigation indicates
Smythe told him Johnson said she would fly to Atlanta. Other witnesses reported that
Smythe said Johnson was flying. Johnson insisted she did not fly but drove and had no
receipts to corroborate this. These inconsistencies caused Peinado, who personally
interviewed the witnesses, to conclude Johnson was not entirely forthcoming. While one
16
might disagree with Peinado’s conclusion or believe he was wrong, his conclusion was
not so implausible, incoherent, or contradictory as to lack credibility. “‘“[A]n employer’s
judgment or course of action may seem poor or erroneous to outsiders, [but] the relevant
question is . . . whether the given reason was a pretext for illegal discrimination”’” or
other illegal conduct. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)
Furthermore, even if his conclusion did lack credibility, the performance issues provided
an independent, legitimate basis for Johnson’s demotion, which Johnson did not show
was pretextual.
In sum, the trial court did not err in concluding there were no triable issues of fact
on the disability discrimination claim. The County proffered ample evidence of
legitimate, nondiscriminatory reasons for demoting Johnson, and she did not refute this
evidence.
2. Retaliation Cause of Action
The trial court granted the County’s motion on the retaliation cause of action
because the complaint cited section 12653, a section of the False Claims Act, and
Johnson did not assert facts supporting a violation of the False Claims Act. We do not
agree completely with the reasoning, but ultimately, the result was not erroneous. The
County was entitled to judgment on this cause of action for another reason.
A. Citation to the False Claims Act in the Complaint
Even though the complaint cited section 12653, we think it abundantly clear from
a fair and common sense reading of the complaint that the cause of action for retaliation
fell under FEHA.
Below, the County’s sole argument on the retaliation cause of action was that the
False Claims Act targets those who present false claims for payment or approval to the
government, and because Johnson did not complain about such fraud against the
government, she could not establish an essential element of the cause of action. The
argument relied entirely on the citation to the False Claims Act in the complaint. Yet the
County’s motion expressly acknowledged that Johnson based her retaliation cause of
action “on the fact that she ‘refused to participate in the on-going discrimination against
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Probation Department personnel that had work injuries and were working in modified
duties, or off work under the care of a physician.’”
“The pleadings play a key role in a summary judgment motion.” (Hutton v.
Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) They delimit the scope of
the issues and set the boundaries of materiality in summary judgment proceedings.
(Ibid.) Thus, a defendant moving for summary judgment must refute the theories alleged
in the complaint, but not some theoretical possibility not included in the pleadings.
(Ibid.) We should liberally construe the complaint with a view to attaining substantial
justice between the parties. (American Airlines, Inc. v. County of San Mateo (1996) 12
Cal.4th 1110, 1118.)
Retaliation under FEHA was an issue fairly framed by the complaint. The
complaint is sprinkled with references to alleged “retaliation” for objecting to the
County’s practices with respect to disabled workers and allegations that Johnson
complained of disability discrimination against Probation employees. The complaint
clearly invokes the relevant section of FEHA, section 12940 (albeit not the precise
subdivision), in the general recitals preceding the statement of the causes of action, and in
the causes of action other than retaliation. If the County needed any clarification—which
it did not—discovery certainly provided it. The County propounded interrogatories
relating to the alleged retaliation, and Johnson’s responses plainly indicated she was
asserting retaliation prohibited by FEHA, not retaliation prohibited by the False Claims
Act. The County asked her to state all actions she initiated that resulted in retaliation; she
responded that she “refused to cooperate in the disability discrimination against injured
Probation Department employees.”
Retaliation under FEHA was not merely some theoretical possibility left out of the
complaint. On the contrary, the facts alleged in the complaint provided a more than
sufficient basis for such a theory, even if the complaint mistakenly cited the False Claims
Act. (See American Airlines, Inc. v. County of San Mateo, supra, 12 Cal.4th at p. 1131
[noting we should determine whether the facts alleged provide the basis for a cause of
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action under any theory].) The County could not willfully close its eyes to the allegations
and pretend they did not exist.
B. Retaliation Under FEHA
Though the County did not discuss the substance of a FEHA retaliation cause of
action in its motion, and the trial court did not reach the substance, we consider it. “We
may affirm the summary judgment on any correct legal theory, as long as the parties had
an adequate opportunity to address the theory in the trial court.” (Drake v. Pinkham
(2013) 217 Cal.App.4th 400, 406.) As we discuss in the following paragraphs, the
pivotal issue on the retaliation cause of action is also the County’s evidence of legitimate,
nondiscriminatory reasons for its adverse employment action. Below, the parties had an
adequate opportunity to address this issue and the issue of pretext in connection with
disability discrimination. The reasons that warranted summarily adjudicating the
discrimination cause of action also warrant summarily adjudicating the retaliation cause
of action.
FEHA makes it unlawful “[f]or any employer . . . to discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices forbidden
under [FEHA] or because the person has filed a complaint, testified, or assisted in any
proceeding under [FEHA].” (§ 12940, subd. (h).) To establish a prima facie case of
retaliation under FEHA, “a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse employment action, and
(3) a causal link existed between the protected activity and the employer’s action.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) The
employee’s burden of establishing a prima facie case is fairly minimal. (Arteaga v.
Brink’s, Inc., supra, 163 Cal.App.4th at p. 353.)
Just like a discrimination case, once an employee establishes a prima facie case of
retaliation, the employer may obtain summary judgment by offering legitimate,
nonretaliatory reasons for the adverse employment action. (Yanowitz, supra, 36 Cal.4th
at p. 1042.) And again, if the employer does so, the presumption of retaliation
disappears, and the burden shifts back to the employee to show the legitimate reasons for
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the employer’s action were untrue or pretextual, or to show other evidence of retaliatory
motive. (Ibid.; Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102,
1109.)
Johnson presented prima facie evidence of protected activity. Opposing practices
forbidden by FEHA constitutes protected activity, and specifically, “[o]pposing
employment practices that an individual reasonably believes to exist and believes to be a
violation of [FEHA].” (Cal. Code Regs., tit. 2, § 11021, subd. (a)(1)(C).) FEHA need
not actually prohibit the complained-of conduct, so long as the employee reasonably
believed the conduct was discriminatory. (Yanowitz, supra, 36 Cal.4th at p. 1043.)
Johnson’s evidence indicated she opposed a plan for return-to-work cases that meant the
County either returned disabled Probation employees to their positions “at their full
capacity,” demoted them, or terminated them. Johnson objected that the process could
not be so simplified. She reasonably believed the plan violated FEHA. To the extent the
plan as presented to her did not provide for (1) reasonable accommodations in existing
positions, or (2) an interactive process to determine whether employees could return to
their positions with such accommodations, as opposed to “at their full capacity,” the plan
arguably violated FEHA. FEHA prohibits an employer from failing to make reasonable
accommodations for known disabilities of employees and from failing to engage in a
timely, good faith, interactive process with employees to determine whether reasonable
accommodations are available. (§ 12940, subds. (m), (n).)
Johnson also presented prima facie evidence of an adverse employment action—
her demotion. Ultimate employment acts such as refusing to hire, terminating, demoting,
or failing to promote are classic examples of adverse employment actions. (Guz v.
Bechtel National, Inc., supra, 24 Cal.4th 317, 355; Jones v. Department of Corrections &
Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.)
Further, Johnson presented prima facie evidence of a causal link between her
protected activity and the adverse employment action. Temporal proximity between an
employee’s protected activity and a subsequent adverse action may satisfy the prima facie
causation requirement. (Arteaga v. Brink’s, Inc., supra, 163 Cal.App.4th at p. 353.)
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Here, Johnson objected to the supervisor’s plan for return-to-work cases at the
December 22, 2009 meeting. A little over two weeks later, the administrative
investigation commenced, and sometime in the first three months of 2010, the
Department of Human Resources presented Remington with the documentation and
information on Johnson’s performance. This proximity between Johnson’s protected
activity and the process that set in motion her demotion was prima facie evidence of
causation.
Still, as we discuss above, the County rebutted the presumption that arises from a
prima facie case with legitimate, nondiscriminatory reasons for Johnson’s demotion, and
Johnson did not refute this evidence as pretextual or otherwise show retaliatory motives.
Hence, the County was entitled to judgment on this cause of action as well.
3. Harassment Cause of Action
Lastly, we conclude the court did not err in granting the County’s motion on the
harassment cause of action. FEHA prohibits an employer from harassing an employee
because of a physical or mental disability, among other protected classes. (§ 12940,
subd. (j)(1).) Johnson brought suit under section 12940, subdivision (k), which provides
for liability when the employer fails to take reasonable steps to prevent harassment. To
prevail on a cause of action for failure to prevent harassment, the plaintiff must show
actual harassment occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th
986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
For conduct to constitute actionable harassment, it must be so severe or pervasive
that it alters the conditions of the victim’s employment and creates an abusive working
environment. (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431,
446, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003)
29 Cal.4th 1019, 1031, fn. 6.) “‘In determining what constitutes “sufficiently pervasive”
harassment, the courts have held that acts of harassment cannot be occasional, isolated,
sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a
repeated, routine or a generalized nature.’” (Muller, at p. 446.)
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“‘[H]arassment consists of conduct outside the scope of necessary job
performance, conduct presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives. Harassment is not conduct of a type
necessary for management of the employer’s business or performance of the supervisory
employee’s job.’” (Reno v. Baird (1998) 18 Cal.4th 640, 645-646.) “[T]he Legislature
intended that commonly necessary personnel management actions such as hiring and
firing, job or project assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not attend
meetings, deciding who will be laid off, and the like, do not come within the meaning of
harassment.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.)
The regulations implementing FEHA define harassment as including verbal
harassment, such as epithets, derogatory comments, or slurs; physical harassment, such as
assault, impeding or blocking movement, or any physical interference with normal work
or movement; visual forms of harassment, such as derogatory posters, cartoons, or
drawings; and sexual harassment, such as conditioning an employment benefit on an
exchange of sexual favors. (Cal. Code Regs., tit. 2, § 11019, subd. (b).) “Thus,
harassment focuses on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal, physical, or visual)
communicates an offensive message to the harassed employee.” (Roby v. McKesson
Corp. (2009) 47 Cal.4th 686, 706.)
Here, no material factual dispute exists as to harassment. The administrative
investigation, poor performance review, and demotion of which Johnson complains were
the type of necessary personnel management decisions that do not fall within the meaning
of harassment. Instead, FEHA addresses these types of official employer actions as
“explicit changes in the ‘terms, conditions, or privileges of employment’” under the
discrimination subdivision. (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 706.)
Moreover, even if these actions constituted harassing conduct, Johnson still had to
show the pertinent individuals harassed her because she belonged to a protected class.
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Again, the County proffered ample evidence that it based the March 2010 performance
review and the NIR on legitimate, nondiscriminatory reasons. The County’s evidence
also showed it commenced the administrative investigation for legitimate reasons—
Johnson missed a high-priority meeting, and there was some reason to suspect she was
not truthful because she had a vacation scheduled in close temporal proximity.
Johnson contends she was also subjected to harassing conduct when Supervisor
Molina threw return-to-work files to the floor and ordered her and Smythe to clean them
up. The record contains no evidence of such an incident. Instead, Johnson attaches
exhibits to her appellate brief describing such an incident (a page from Smythe’s
deposition and a memorandum she wrote in January 2010). This material is not properly
before us. On appeal from summary judgment, we confine our review to the record the
trial court had before it. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717;
Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 627.) We may not
consider evidence the trial court did not have when it ruled on the motion. (Government
Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4.)
DISPOSITION
The trial court did not err in granting summary judgment. The judgment is
affirmed. In the interest of justice, the parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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