McCoy v. Perris Union H.S. Dist. CA4/1

Filed 6/8/15 McCoy v. Perris Union H.S. Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

WARREN MCCOY, D067421

Plaintiff and Appellant,

v. (Super. Ct. No. RIC1101168)

PERRIS UNION HIGH SCHOOL
DISTRICT, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Riverside County, Matthew C.

Perantoni, Judge. Affirmed.

Law Offices of Dale M. Fiola and Dale M. Fiola, for Plaintiff and Appellant.

Walsh & Associates, Dennis J. Walsh and George E. Ordonez, for Defendants and

Respondents.

INTRODUCTION

Warren McCoy appeals a summary judgment granted in favor of Perris Union

High School District (District) and former principal Penelope Graham on his complaint
for: (1) violation of the Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et

seq.); (2) retaliation for asserting claims under the FMLA and for age and race

discrimination; (3) age discrimination; (4) race discrimination; and (5) intentional

infliction of emotional distress. McCoy contends the District retaliated against him and

discriminated against him based on his age, race, and FMLA requests when it placed him

on a performance improvement plan and gave him negative evaluations for a number of

years before he took service retirement. The trial court granted the District's summary

judgment, concluding McCoy was not entitled to FMLA leave to care for his mother-in-

law or to take his wife to routine doctor appointments and he received negative

evaluations based on poor performance rather than any retaliatory or discriminatory

purpose. Based on our independent review, we conclude the trial court correctly

determined the District was entitled to summary judgment. We, therefore, affirm the

judgment.

BACKGROUND

A

McCoy was employed with the District as a teacher from 1983 until he took

service retirement in August 2012. For most of his career, McCoy taught physical

education (P.E.) at Perris Lake High School (Perris Lake). He also taught history, math,

reading, English, adult school and driver's education. He served as the commissioner of

the Serrano Athletics League from 1996 to 2006 and was allowed to leave campus during

the instructional day to handle league business.

2
 In 2003, McCoy was selected as the District's certificated employee of the year.

He received a performance review for the 2003-2004 school year in which he was

evaluated as meeting standards in all evaluated categories. His request to participate in a

five-year evaluation and assessment was granted such that his next performance

evaluation was scheduled to occur in the 2008-2009 school year.

B

When the District hired a new superintendent in 2007, its goal was to improve

student academic performance and student participation by implementing the District's

program improvement plan, which was prepared to comply with the federal No Child

Left Behind Act of 2001. Although the superintendent did not prepare new written

guidelines, his goal was to raise the bar on what was expected from district employees

and students, which he felt was pretty low when he arrived. In the new superintendent's

view, the number one way to improve student achievement was to improve the quality of

instruction in the classroom. The District attempted to increase employee performance

and preferred more frequent teacher evaluations. Steve Swartz, the assistant

superintendent of human resources explained, "more frequent evaluations allows for

more frequent constructive criticism, this helps to increase the potential of improved

teacher performance in the District, resulting in improved student performance."

In June 2007 the principal at Perris Lake retired and was replaced by an interim

principal for a year. In July 2008 Penelope Graham became the new principal at Perris

Lake. She made many classroom visits to assess teaching proficiency and she analyzed

data to assess student performance. She shifted the focus to high-level interactive

3
instruction. Graham performed more informal observations of teachers during the year of

their scheduled evaluation to provide feedback so they could make needed improvements

before formal observation and evaluation. She felt some teachers were complacent and

did not believe the continuation students at Perris Lake could benefit from structured

teaching environments. She also believed, based on her experience as an educator, that

implementation of structured lesson plans helps increase student engagement and

learning.

C

In September 2008 the assistant principal notified McCoy that he had left his class

unattended before the bell rang. The students reported McCoy had locked up and left

before the bell rang and McCoy was seen talking to another staff member in another area.

On another occasion, Graham asked to see McCoy about her observation of half of his

students playing volleyball while the other half sat in the bleachers.

In February 2009 Graham observed one of McCoy's classes and issued an

observation report stating 14 students sat on the bleachers talking while 16 students

played volleyball. Of the eight to 10 students assigned to play basketball, only three or

four actively participated in the activity. The others stood in groups talking. McCoy

walked around periodically talking to his students, but did not offer instruction.

Additionally, Graham observed six different students who were not in his P.E. class stop

by to talk to his P.E. students for extended periods of time. McCoy did not ask those

students to leave. Graham also observed several boys loudly using profanity and McCoy

did not ask them to stop. McCoy ended the class 10 minutes early. Graham

4
recommended McCoy require all students to actively participate in his class. She also

recommended he instruct and monitor his students throughout the class period, including

not allowing his students to use profanity or other students to "hang-out" in his P.E. class.

Finally, she recommended McCoy teach until the bell rang, noting there was no reason to

end the class 10 minutes before the bell rang because the students did not change clothes

for P.E. class.

McCoy was placed on an improvement plan in March 2009. Specifically, the plan

suggested McCoy adhere to the P.E. curriculum and actively instruct students

accordingly. It required McCoy to submit daily lesson plans on a weekly basis. The

improvement plan recommended McCoy require all students to participate actively in his

class and to implement an incentive plan to encourage participation. It required McCoy

to monitor his students' progress, to redirect his students who were off task, and to stop

inappropriate conduct by his students such as the use of profanity or throwing balls at one

another. Finally, it required McCoy not to permit students who were not in his class to

"hang out" during P.E. The purpose of the improvement plan was to make McCoy aware

of deficiencies so he could improve prior to his upcoming evaluation.

When McCoy did not comply with the directives of the improvement plan,

Graham held a number of conferences with McCoy and his union representative. They

discussed the need for revisions to his lesson plans to comply with the model P.E. content

standards and ongoing problems during his classes with over half of his students sitting in

the bleachers or standing in groups talking rather than participating. They also discussed

the need for McCoy to actively and explicitly teach his students sport skills as well as

5
team play. An observation in April 2009 showed some improvement, but still noted not

all students were participating and practice was not organized or monitored. In McCoy's

formal evaluation dated April 21, 2009, 12 out of 17 evaluation categories were marked

as unsatisfactory and five were marked as needing improvement.

Prior to this written formal evaluation, McCoy submitted a complaint of racial and

age discrimination against Principal Graham. He added a claim of retaliation the day he

received his evaluation. McCoy complained: (1) he and another African-American

teacher had their classrooms moved to an isolated area; (2) he had been singled out and

held to higher performance expectations than other teachers and Graham held unrealistic

expectations of the students in his P.E. classes; (3) two teachers were terminated because

they were of Asian descent; and (4) his negative performance evaluation was in

retaliation to an informal observation by Graham when he had his students standing in the

shade on a hot day. The District's chief human resources officer responded to the

complaint and concluded there was no discrimination or retaliation.

By October 2009 Graham noted some improvements in McCoy's classes. She

commended him for working to increase student participation, noting the number of

students who were not engaged had reduced over previous observations. She also

commended him for adding a period of calisthenics to the beginning of each class.

However, she recommended he closely monitor all P.E. activities. She observed a group

of girls who were talking move to the center of the field where a game of flag football

was being played. Graham noted they were nearly run over several times while the game

6
continued. She also noted the importance of consistently approaching students who are

not participating to encourage them to participate.

The bell schedule changed in the 2009-2010 school year because bus routes were

changed within the District. Additionally, sports at Perris Lake changed to an after

school extra-curricular activity rather than an activity during the instructional day.

McCoy's P.E. class size increased from 45 students to 55 students due to an increase in

student attendance at Perris Lake, as well as other class scheduling. The class size was

within the maximum limit of 55 students required by the union collective bargaining

agreement (CBA).

In February 2010 McCoy filed a complaint with the Department of Fair

Employment and Housing (DFEH) asserting discrimination based on race, age and

retaliation. The case was closed in October 2010 because McCoy elected to pursue a

court action.

In March 2010 Graham conducted another observation and commended McCoy

for a clearly stated lesson plan, demonstration of every step of the lesson with

opportunity to practice before playing a game and debriefing the game. She encouraged

him to include all of these components every day.

McCoy's evaluation in May 2010 was improved with nine out of 17 evaluation

categories marked as meeting standards (the highest rating) and eight marked as needing

improvement. There were no unsatisfactory marks. McCoy was commended for

working to increase student participation, for adding calisthenics to the beginning of his

P.E. classes and for implementing well-planned lessons for both formal observations.

7
The evaluation recommended planning and delivering effective P.E. lessons every day,

instructing from the time of the first class bell to the end of class bell, consistently

encouraging students to participate, and arriving at staff meetings on time. It

recommended continuation of the improvement plan.

On May 4, 2010, McCoy submitted a request to take sick leave the next day for

two of his class periods to pick up his son from school. Graham informed him this did

not qualify as sick leave and he had already used his personal discretion leave for the

year. Graham also reminded him of his contractual work hours under the CBA. McCoy

then indicated the real reason he had to leave was because his mother-in-law was ill.

Although Graham directed McCoy to stay at work, he left in the middle of the day when

his mother-in-law called saying he had to come home due to an emergency.

Thereafter, District personnel met with McCoy to address his absences. At that

time, he had accumulated 27 days of full or half sick days for the year. McCoy explained

his mother-in-law and wife had health issues, which precluded them from driving.1 He

also said he needed to pick up his son a couple of days a week.2 Since McCoy had used

1 McCoy and his wife were in an automobile accident in 2002. His wife broke her
arm and leg, which required some initial therapy. Her leg injury required a rod and
apparently she did not drive. McCoy mentioned his wife's injuries when he spoke with
Schwartz about his absences. At that time, his wife was not undergoing therapy and only
required routine checkups.

2 McCoy's son was homeschooled from 2001 to 2008. Once a month, McCoy
would take his son to turn in assignments and pick up homework. The last year McCoy's
son was homeschooled (2008-2009), coaching hours were moved to after school. McCoy
did not coach that year because it interfered with his ability to get his son to and from
school.
8
all of his available paid time for the year, he was allowed to take time off without pay.

McCoy was provided with a memorandum memorializing their meetings regarding his

absences and directing him to adhere to all applicable policies and procedures for taking

and reporting short and long-term absences. It also reminded him of his duty under the

applicable CBA to make an effort to schedule medical appointments in a way to

minimize the disruption to the District's educational program.

McCoy submitted one request in June 2010 for FMLA intermittent leave to assist

with the care of his mother-in-law, but it did not provide a schedule of care or indicate a

specific day or time for which he would need to be absent. McCoy was told if he needed

to be absent from school to provide the care, he would need to submit a doctor's note.

McCoy did not submit FMLA leave requests thereafter. McCoy was never denied the

opportunity to take family leave or sick leave to care for his mother-in-law once he

completed the form.

In November 2010 District administrators met with McCoy regarding his failure to

use the required computer system to input his students' grades. He had some students

with no grades and some graded as "no mark" in the system for the grading period. He

also did not have assignments recorded. McCoy said he did not know how to use the

system. The District made arrangements for McCoy to receive computer training for the

grading system.

In December 2010 when the assistant principal performed a formal observation of

his classroom, the class was noisy and the majority of students were not engaged. Many

students were off task and engaged in conversation, which McCoy did not address. Some

9
students used profanity, which McCoy also did not address. The assistant principal

advised McCoy to adhere to the P.E. curriculum, submit daily lesson plans weekly,

require all his students to participate, actively monitor his students, redirect or implement

appropriate consequences for students using profanity or throwing balls at each other and

not permitting other students who were not in his P.E. class to "hang out" in the P.E. area.

By January 2011 McCoy had shown improvement in not allowing " 'wayward'

students to loiter in his P.E. class." However, he still needed improvement in six areas

and was rated unsatisfactory in five areas. McCoy was directed to plan and deliver

effective lessons, encourage student participation, arrive on time to staff meetings and

other functions, and input grades using the computer system as required by District

policy.

McCoy was provided with a continued improvement plan indicating a need to

improve in areas of instruction, adherence to adopted curriculum, student participation,

monitoring student progress and behavior, supervision and safety of students and use of

instructional time from first class bell to end of class bell. McCoy was warned about

being late for meetings and classes and advised he had incorrectly reported absences.

McCoy filed an amended complaint of discrimination with the DFEH contending

the District (1) violated numerous rules in the District's agreement and failed to perform

periodic reviews, (2) failed to grant leave under the FMLA and the California Family

Rights Act to tend to his mother-in-law's medical needs and to pick his son up from

school, and (3) retaliated against him. At McCoy's request, the DFEH issued an

immediate right-to-sue notice without taking action on the complaint.

10
 McCoy had job performance issues throughout the end of the 2010-2011 school

year and into the first semester of the 2011-2012 school year. These problems included

failure to submit substitute requests in accordance with District policy and procedures,

failure to input grades in a timely manner, and failure to provide instruction from the first

class bell to end of class bell. His students were not supervised and left during class to

hang out in the library. Students and parents complained about McCoy's failure to

accurately record student grades or attendance. His lesson plans were vague or he did not

follow them. This resulted in a warning letter of unsatisfactory performance in March

2011, a letter of reprimand issued in April 2011, and a notice of unsatisfactory

performance issued in December 2011. He was not suspended and McCoy's job

performance subsequently improved.

Principal Graham left the school at the end of 2011 and Dr. Narcisco Iglesias

became the principal. McCoy did not request a leave of absence in 2011-2012 and was

not denied any leave requests.

By February 2012 McCoy had shown improvement in supervision, bell-to-bell

instruction, and curriculum. There were still concerns with instructional issues and he

was requested to provide detailed lesson plans and to adhere to those plans daily.

McCoy's June 2012 performance evaluation by Dr. Iglesias showed improvement with

only two marks indicating a need for improvement in instructional areas. McCoy was not

disciplined and he was not threatened either with his job or with changes to his job duties.

McCoy did not believe Dr. Iglesias discriminated or retaliated against him in any way

related to his performance evaluation.

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 D

McCoy filed this action in January 2011. He retired in 2012, taking service

retirement. The trial court granted summary judgment concluding McCoy was not

eligible for FMLA to care for his mother-in-law because in-laws are not included within

the statute and he admitted his wife did not have a serious medical condition as defined

by the statute. Additionally, the court determined the District provided legitimate reasons

for its actions based on McCoy's poor performance rather than any retaliatory or

discriminatory purpose. Finally, the court concluded McCoy raised no triable issue of

material fact as to intentional infliction of emotional distress.

DISCUSSION

I

A defendant is entitled to summary judgment if it establishes a complete defense

to the plaintiff's cause of action or shows that one or more elements of the cause of action

cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 849.) "On appeal after a motion for summary

judgment has been granted, we review the record de novo, considering all the evidence

set forth in the moving and opposition papers except that to which objections have been

made and sustained. [Citation.] Under California's traditional rules, we determine with

respect to each cause of action whether the defendant seeking summary judgment has

conclusively negated a necessary element of the plaintiff's case, or has demonstrated that

under no hypothesis is there a material issue of fact that requires the process of trial, such

that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National,

12
Inc. (2000) 24 Cal.4th 317, 334 (Guz).) We liberally construe the evidence in support of

the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc.

(2004) 32 Cal.4th 1138, 1142) and assess whether the evidence would, if credited, permit

the trier of fact to find in favor of the party opposing summary judgment under the

applicable legal standards. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at

p. 850.)

II

Family and Medical Leave Act Claim

McCoy contends the District interfered with his right to take leave under the

FMLA to care for or take his mother-in-law and wife to doctor appointments. The

FMLA "provides job security to an employee who is absent from work because of the

employee's own serious health condition or to care for specified family members with

serious health conditions." (Chin, et al., Cal. Practice Guide: Employment Litigation

(The Rutter Group 2014) ¶ 12:6, p. 12-3; 29 U.S.C. § 2601(b)(1), (2).) To establish a

prima facie case of FMLA interference, an employee must establish (1) " 'he [or she] was

eligible for the FMLA's protections, (2) his [or her] employer was covered by the FMLA,

(3) he [or she] was entitled to leave under the FMLA, (4) he [or she] provided sufficient

notice of his [or her] intent to take leave, and (5) his [or her] employer denied him FMLA

benefits to which he was entitled.' " (Escriba v. Foster Poultry Farms, Inc. (9th Cir.

2014) 743 F.3d 1236, 1243.) An eligible employee is entitled to FMLA leave "to care for

the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter,

or parent has a serious health condition." (29 U.S.C. § 2612(a)(1)(C).)

13
 The Code of Federal Regulations expressly excludes "parents 'in law' " from the

definition of parent for purposes of FMLA leave. (29 C.F.R. § 825.122(c) (2015).)

Therefore, McCoy was not entitled to take FMLA leave for the care of his mother-in-law.

Similarly, McCoy has not established he was entitled to take FMLA leave to care

for his wife at the time he claims the District improperly interfered with his ability to take

leave. The Code of Federal Regulations defines serious health condition as "an illness,

injury, impairment or physical or mental condition that involves inpatient care . . . or

continuing treatment by a health care provider." (29 C.F.R. § 825.113(a) (2015).)

"Treatment does not include routine physical examinations." (29 C.F.R. § 825.113(c)

(2015).) McCoy admitted his wife, who had been in an automobile accident in 2002, was

not undergoing therapy and only required routine checkups in 2010 when McCoy spoke

with Swartz about his absences.

Even if we were to assume McCoy was entitled to take FMLA leave at the time in

question to care for his wife, he did not establish he gave notice of the need for leave or

that the District improperly denied his request for leave. There is one notation from

September 17, 2009, indicating McCoy submitted a request for sick leave for the

following afternoon and then, after the principal requested to meet with him the following

morning, he called back in the evening and left a message stating he needed to take off

the entire day for "family leave." However, McCoy cites no other evidence showing he

informed the District he needed to take time off due to a serious medical condition of

either his wife or mother-in-law until May 2010 when he discussed the matter with

Swartz. When he did submit a request for FMLA in June 2010, the District did not deny

14
the request, it simply asked for specific dates and medical confirmation. Thereafter,

McCoy was not denied FMLA leave or sick leave.

McCoy complains the District interfered with his ability to take FMLA leave by

asking him to adhere to work hours and attendance policies and to follow District

procedures for requesting and reporting both short and long-term absences. However, an

employer may make a reasonable request of an employee without interfering with FMLA

leave. (Chappell v. Bilco Co. (8th Cir. 2012) 675 F.3d 1110, 1115-1116 [action against

employee appropriate for failure to comply with call-in policy]; Kinds v. Ohio Bell Tel.

Co. (6th Cir. 2013) 724 F.3d 648, 652 [failure to provide medical certification may

preclude interference claim].) Therefore, we conclude McCoy cannot establish a cause of

action for violation of the FMLA.

III

Retaliation

McCoy contends the District retaliated against him in violation of either the

FMLA or California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900

et seq.) for engaging in protected activity such as asserting his FMLA leave rights and

filing charges of race and age discrimination on his own behalf and on behalf of others.

A

To establish a prima facie case of retaliation in violation of either the FMLA or

FEHA a plaintiff must show he or she was (1) engaged in protected activity, (2) the

employer subjected him or her to an adverse employment action and (3) there is a causal

connection between the protected activity and the employer's action. (Akers v. County of

15
San Diego (2002) 95 Cal.App.4th 1441, 1453; Dudley v. Department of Transportation

(2001) 90 Cal.App.4th 255, 261.) In reviewing summary judgment of a retaliation claim,

we bear in mind the burden-shifting analysis of McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792 to determining if triable issues of fact exist for resolution by a jury.

First, the " '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.' " (Loggins v. Kaiser

Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) In other words, a plaintiff

must show a nexus between the protected activity and the adverse employment action.

(Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at pp. 1258-1259.) Second, "[i]f the

employee successfully establishes these elements and thereby shows a prima facie case

exists, the burden shifts to the employer to provide evidence that there was a legitimate,

nonretaliatory reason for the adverse employment action." (Loggins v. Kaiser

Permanente Internat., supra, 151 Cal.App.4th at p. 1109.) Third, "[i]f the employer

produces evidence showing a legitimate reason for the adverse employment action, 'the

presumption of retaliation " ' "drops out of the picture," ' " ' [citation], and the burden

shifts back to the employee to provide 'substantial responsive evidence' that the

employer's proffered reasons were untrue or pretextual." (Ibid.)

Applying this analysis to summary judgment proceedings, an employer is entitled

to summary judgment if it "presents admissible evidence either that one or more of

plaintiff's prima facie elements is lacking, or that the adverse employment action was

based on legitimate, [nonretaliatory or] nondiscriminatory factors . . . unless the plaintiff

16
produces admissible evidence which raises a triable issue of fact material to the

defendant's showing." (Caldwell v. Paramount Unified School Dist. (1995) 41

Cal.App.4th 189, 203.)

Although the evidence must be viewed in the light most favorable to the plaintiff,

the plaintiff's subjective beliefs "do not create a genuine issue of fact." (King v. United

Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) Nor can a plaintiff avoid

summary judgment by merely providing some evidence suggesting an improper motive

for an [adverse employment action]. (Ibid.) Rather, the "plaintiff's evidence must relate

to the motivation of the decision makers to prove, by nonspeculative evidence, an actual

causal link between prohibited motivation and [the adverse employment action]." (Id. at

pp. 433-434.)

B

Assuming, without deciding, McCoy could meet his prima facie burden of

establishing a causal connection between protected activity and any adverse employment

action, the District met its burden for the second prong of the analysis by presenting

creditable evidence of legitimate nonretaliatory reasons for the alleged adverse

employment actions.

1

After a change in administration, including a new superintendent in 2007 and a

new principal at Perris Lake in 2008, the District increased teacher evaluations to

17
enhance teacher and student performance.3 Graham began observing all teachers,

particularly teachers such as McCoy who were due for formal evaluation that year.

McCoy was placed on a performance improvement plan in March 2009, before he filed

any claims for discrimination. He was directed to actively instruct students according to

P.E. curriculum, to submit lesson plans and to require students to actively participate in

class. The improvement plan required McCoy to actively monitor student progress, to

redirect students who were off task, and to stop inappropriate conduct such as the use of

profanity or throwing balls at one another. Finally, it required McCoy not to permit other

students to stop by the class to "hang out." The District submitted evidence McCoy's

negative evaluation in April 2009 followed several observations and conferences and was

the result of McCoy's poor teaching performance and failure to comply with directives

and recommendations rather than any retaliatory purpose. McCoy continued to have

performance issues over the next several years, but he showed improvement. In 2012,

before he took his service retirement, McCoy met standards in all evaluated areas except

two instructional areas where he still needed improvement.

3 McCoy claims the District conducted too many observations and evaluations
under the terms of the CBA. However, a plain reading of the CBA does not limit the
number of informal or formal evaluations. The CBA states members "shall have at least
one (1) formal observation no later than March 1, if they are being evaluated" and shall
receive advance notice of formal evaluations. (Italics added.) The CBA does not
prohibit informal evaluations. Nor does Education Code section 44664, subdivision (a),
prohibit more frequent evaluations, it provides a minimum number of evaluations: "[a]t
least every other year for personnel with permanent status."

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 2

With regard to the change of coaching duties, the District presented evidence

coaching was not a part of McCoy's employment duties with the District. In the years he

coached, he received a stipend in addition to his regular pay. In 2008-2009, McCoy

received stipends for teaching four team sports. When he coached those sports during

P.E. classes, he received both his regular pay and a stipend for the same hour of

instruction. Additionally, McCoy would pull students out of classes for sports. In 2009-

2010, team coaching was moved to after school. McCoy did not apply for a coaching

position in 2009 due to his son's school schedule and the change in Perris Lake's

classroom bell schedule that year. In September 2010 an e-mail was sent to all

certificated staff announcing the availability of coaching positions, which were open on a

first-come, first-served basis. McCoy admitted he did not receive the e-mail regarding

the availability of coaching positions on the Friday it was sent because he was involved

in union negotiations and he was sick the following Monday. By the time he came back

to school on Tuesday, the positions were filled. He was allowed to co-coach a team and

split the stipend with the other coach.

3

The District presented evidence McCoy's classroom was moved because he was

assigned to teach driver's education and the room was more suitable for those classes due

to its size. Additionally, his former classroom was needed for other school purposes.

The District presented evidence it did not construct a weight room because there was no

budget for the structural changes necessary.

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 4

McCoy was denied an opportunity to attend a particular training course during the

school year because he failed to follow directives to improve his job performance and the

District did not believe he would benefit from the program. However, he was not denied

the opportunity to attend a P.E. instructional course over the summer.

5

Graham took the school's walkie-talkie radio and master key away from McCoy

because he was not a security officer and he did not need those items for teaching. No

other teachers had walkie-talkie radios. He was still able to perform his job duties

without the key and the radio. He did not file a grievance because it was not a violation

of the contract for him not to have master key.

C

Because the District provided evidence of legitimate nonretaliatory reasons for

their actions, the burden shifted to McCoy to show the District's articulated nonretaliatory

reasons for their actions were merely pretextual. He has not done so.

To show pretext, McCoy relies primarily on the temporal proximity of various

claims he submitted and when alleged adverse actions occurred. However, evidence of

temporal proximity alone is not sufficient to avoid summary judgment. "[T]emporal

proximity, although sufficient to shift the burden to the employer to articulate a

[nonretaliatory or] nondiscriminatory reason for the adverse employment action, does

not, without more, suffice also to satisfy the secondary burden borne by the employee to

show a triable issue of fact on whether the employer's articulated reason was untrue and

20
pretextual. [A] contrary argument, if accepted, would eviscerate the McDonnell Douglas

[v. Green, supra, 411 U.S. 792] framework for resolving claims at the demurrer or

summary judgment stage, because the same minimal showing required of the plaintiff to

raise a prima facie case would also suffice to preclude the employer from obtaining

summary judgment notwithstanding otherwise unrebutted proof of articulated legitimate

reasons for the employment termination. Instead, an employee seeking to avoid summary

judgment cannot simply rest on the prima facie showing, but must adduce substantial

additional evidence from which a trier of fact could infer the articulated reasons for the

adverse employment action were untrue or pretextual." (Loggins v. Kaiser Permanente

Internat., supra, 151 Cal.App.4th at pp. 1112-1113.)

McCoy has not shown substantial additional evidence from which a trier of fact

could infer the articulated reasons for the alleged adverse employment actions were

untrue or pretextual. An inference of pretext may not be drawn from evidence the

employee believed he or she performed well or had performed well in prior years. The

relevant inquiry is whether the decision makers genuinely believed the employee had

performance problems. (See Koski v. Standex Int'l Corp. (7th Cir. 2002) 307 F.3d 672,

677-678; Gross v. Akin (D.D.C. 2009) 599 F.Supp.2d 23, 31.)4 There is no evidence

McCoy's evaluators did not actually believe McCoy had performance issues between

2009 and 2012. Even considering the declaration McCoy submitted from another

4 "Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes." (Guz, supra, 24 Cal.4th at p. 354.)
21
physical education teacher taking issue with the substance of the performance

evaluations, which, viewed most favorably to McCoy, might show the District's

evaluation decisions were unwise or based on incorrect information, the evidence does

not show the District's decisions were a pretext.

Additionally, McCoy contends an e-mail denying his request to participate in a

week-long seminar during the school year provides evidence of retaliation. In response

to an inquiry about whether the District would allow and partially pay for McCoy to

attend the conference if he dropped his lawsuit and his complaint to the Public

Employment Relations Board (PERB), Swartz stated, "[I]n addition to the lawsuit and

PERB complaint, Mr. McCoy has shown little attempt or interest in following any of the

directives provided him for improvement in his job performance as documented . . . .

The district, therefore, is disinclined to agree to send Mr. McCoy to the Survive and

Thrive program." Even if refusal to send McCoy to this particular program could be

considered an adverse employment action, which is debatable, this e-mail does not give

rise to a reasonable inference of retaliatory intent. The e-mail states the District was

disinclined to grant the request because McCoy was not complying with

recommendations to improve his job performance and Swartz did not believe McCoy

would benefit from the program. If retaliation or leverage were behind the denial, one

would expect a different response to a proposal to withdraw the lawsuit and PERB

complaint if he was sent to a conference. We also note McCoy was not denied the

opportunity to attend a conference for P.E. teachers and coaches over the summer.

22
 Therefore, we conclude McCoy has not met his burden of raising a triable issue of

fact regarding his retaliation claim. "[A] plaintiff's 'suspicions of improper

motives . . . primarily based on conjecture and speculation' are not sufficient to raise a

triable issue of fact to withstand summary judgment." (Kerr v. Rose (1990) 216

Cal.App.3d 1551, 1564.)

IV

Discrimination Claims

A

FEHA makes it unlawful for an employer to discriminate against an employee

based on the employee's race or because of the employee's age, if the employee is 40

years old or older. (Gov. Code, §§ 12926, subds. (b), (o), 12940, subd. (a).) To establish

a prima facie case of discrimination the plaintiff must provide evidence: (1) he or she

was a member of a protected class (e.g., race or age); (2) he or she was performing

competently in the position he or she held; (3) he or she suffered an adverse employment

action; and (4) some other circumstance suggesting discriminatory motive such as the

fact he or she was replaced with someone not within the protected class. (Guz, supra, 24

Cal.4th at p. 355; Rose v. Wells Fargo & Co. (9th Cir. 1990) 902 F.2d 1417, 1421 [age];

Fragante v. Honolulu (9th Cir. 1989) 888 F.2d 591, 595 [race].)

When moving for summary judgment, an employer may proceed directly to the

second prong of the McDonald Douglas test and present competent, admissible evidence

showing it took the challenged action for legitimate, not discriminatory reasons. (Guz,

supra, 24 Cal.4th at p. 357.) The employer's reasons need not have been wise or correct.

23
Rather, " 'legitimate' reasons [citation] in this context are reasons that are facially

unrelated to prohibited bias, and which, if true, would thus preclude a finding of

discrimination." (Id. at p. 358.)

The plaintiff then has the burden of rebutting the employer's showing "by pointing

to evidence which nonetheless raises a rational inference that intentional discrimination

occurred." (Guz, supra, 24 Cal.4th at pp. 357, 361.) "[A]n inference of intentional

discrimination cannot be drawn solely from evidence, if any, that the company lied about

its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.

[Citation.] Proof that the employer's proffered reasons are unworthy of credence may

'considerably assist' a circumstantial case of discrimination, because it suggests the

employer had cause to hide its true reasons. [Citation.] Still, there must be evidence

supporting a rational inference that intentional discrimination, on grounds prohibited by

the statute, was the true cause of the employer's actions." (Id. at pp. 360-361.) "[A]n

employer is entitled to summary judgment if, considering the employer's innocent

explanation for its actions, the evidence as a whole is insufficient to permit a rational

inference that the employer's actual motive was discriminatory." (Id. at p. 361.) Thus,

"even after the plaintiff has presented prima facie evidence sufficient to establish an

inference of prohibited discrimination in the absence of explanation, and has also

presented evidence that the employer's innocent explanation is false, the employer is

nonetheless necessarily entitled to judgment as a matter of law unless the plaintiff

thereafter presents further evidence that the true reason was discriminatory." (Ibid.)

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 " 'Whether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors. These include the strength of the plaintiff's prima facie

case, the probative value of the proof that the employer's explanation is false, and any

other evidence that supports the employer's case.' " (Guz, supra, 24 Cal.4th at p. 362.) A

court may grant summary judgment for an employer "where, given the strength of the

employer's showing of innocent reasons, any countervailing circumstantial evidence of

discriminatory motive, even if it may technically constitute a prima facie case, is too

weak to raise a rational inference that discrimination occurred." (Ibid.)

B

Again, assuming without deciding McCoy can meet his prima facie burden of race

or age discrimination, as we have described ante, the District presented evidence its

actions were based on legitimate nondiscriminatory reasons: (1) the District

implemented efforts to improve student performance by improving teacher performance

through increased teacher evaluations and increased emphasis on structured teaching

methods; (2) over the course of several years, McCoy consistently failed to meet the

standards required, although he showed improvement over time; (3) McCoy's coaching

opportunities changed as a result of a change in the time sport activities were conducted,

because he had family commitments, and because he failed to timely respond to a notice

of availability of coaching positions; (5) and McCoy's classroom was changed to a room

more suitable for his driver's education class. Graham and Swartz both stated in

declarations they did not take any action against McCoy based on his age or race. The

District's showing of its reasons was made by competent and admissible evidence and

25
was sufficient to establish McCoy's discrimination causes of action have no merit. (Guz,

supra, 24 Cal.4th at p. 360.)

McCoy was, therefore, required to raise a triable issue rebutting the District's

showing "by pointing to evidence which nonetheless raises a rational inference that

intentional discrimination occurred." (Guz, supra, 24 Cal.4th at pp. 357, 361.) He has

not done so.

McCoy admitted no one at the District made any derogatory comments about his

age or race. He admitted in deposition that he did not believe anyone at the District

discriminated against him based on his age or race. McCoy's salary and benefits

remained the same even when his teaching assignments changed. To the extent McCoy's

declaration contradicts this testimony, we disregard it. (D'Amico v. Board of Medical

Examiners (1974) 11 Cal.3d 1, 22 (D'Amico); Scalf v. D. B. Log Homes, Inc. (2005) 128

Cal.App.4th 1510, 1521-1522 [the D'Amico rule "bars a party opposing summary

judgment from filing a declaration that purports to impeach his or her own prior sworn

testimony."].)

To establish pretext, McCoy relies on declarations of other union members—Paul

Clay, Susan Stever and Gary Orme—the language of which is substantially identical in

many places. These declarations purport to establish a pattern and practice of age or race

discrimination by giving anecdotal accounts of other District employees they believe

were subjected to age or race discrimination. The District objected to these declarations

as speculative and lacking in foundation. The trial court did not rule on the objections.

"Evidence submitted for or against a motion for summary judgment must be admissible if

26
being offered at trial." (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82.) Although

the California Supreme Court has not decided the matter (Reid v. Google, Inc. (2010) 50

Cal.4th 512, 535), the majority view is that an appellate court reviews the trial court's

evidentiary rulings on summary judgment for abuse of discretion. (Kincaid v. Kincaid,

supra, at pp. 82-83.) However, since the court did not exercise its discretion, we may

consider them de novo. (Reid v. Google, Inc., supra, at p. 535.)

The declarations submitted contain no foundational facts showing any of these

witnesses had personal knowledge of the circumstances around which other older or

minority workers were either terminated or suffered alleged adverse employment actions

or that their age or race was the reason for the action (as opposed to performance,

retirement, job changes, or other neutral circumstances). The declarants only present

conclusory opinions. Absent such foundation, any inferences to be drawn from the

declarations are speculative and irrelevant. Evidence is not relevant if it has a tendency

to prove or disprove a disputed material fact only by resort to speculative or conjectural

inferences or deductions. (Evid. Code, § 210; People v. Parrison (1982) 137 Cal.App.3d

529, 539; Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446.) Therefore, we do not

consider the declarations for this purpose.

McCoy also relies on some statistical data his attorney gathered regarding the race

and age of teachers and administrators at Perris Lake. However, the statistical sample is

very small. Although " 'statistics have a place in disparate treatment cases, their utility

"depends on all of the surrounding facts and circumstances." ' [Citation.] [Courts have

declined] to consider the employee's statistical evidence because ' "statistical evidence

27
derived from an extremely small universe" . . . "has little predictive value and must be

disregarded." ' [Citations.] The problem with a small number, of course, is that slight

changes in the data can drastically alter the result." (Aragon v. Republic Silver State

Disposal (9th Cir. 2002) 292 F.3d 654, 663.) The statistics presented by McCoy do not

show " ' "a stark pattern of discrimination unexplainable on grounds other than [race] [or

age]" ' " such as job performance. (Ibid.) Therefore, McCoy's statistics are insufficient to

raise an inference of discrimination.

Because McCoy has not presented substantial and specific evidence required to

demonstrate the District's actions were pretext for discrimination, summary judgment was

proper.

V

Intentional Infliction of Emotional Distress

McCoy's final contention is that he established a triable issue of fact regarding his

intentional infliction of emotional distress claim based on discrimination and retaliation.

To establish a claim for intentional infliction of emotional distress, a plaintiff must prove:

(1) the defendant's conduct was outrageous; (2) the defendant intended to cause the

plaintiff harm; (3) the plaintiff suffered severe emotional distress; and (4) the defendant's

conduct was a substantial factor in causing plaintiff's severe emotional distress. (CACI

No. 1600; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) An essential element of a

claim of intentional infliction of emotional distress is outrageous conduct beyond the

bounds of human decency. (Coleman v. Republic Indemnity Ins. Co. (2005) 132

Cal.App.4th 403, 416.)

28
 Given our conclusion McCoy is unable to meet his burden to establish the District

engaged in discriminatory or retaliatory action, there is no triable issue of material fact as

to his intentional infliction of emotional distress claim. Personnel management decisions

are not outrageous conduct. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th

55, 80.)

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.

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