Taite v. City of Long Beach CA2/2

Filed 9/15/16 Taite v. City of Long Beach CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

NONA TAITE, B265240

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC515864)
v.

CITY OF LONG BEACH,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Michelle R. Rosenblatt, Judge. Affirmed.

Jeffrey Alan Sklar for Plaintiff and Appellant.

Charles Parkin, City Attorney, Howard D. Russell and Victoria Silcox, Deputy
City Attorneys, for Defendant and Respondent.

* * * * * *
 Nona Taite (plaintiff) resigned “for personal reasons” from her job as a trainee
public safety dispatcher a week before her final training benchmark, a benchmark she
later admitted she would not have met. Plaintiff sued her employer for (1) racial
discrimination, (2) harassment, (3) retaliation, and (4) failure to investigate a complaint
of protected activity. The trial court granted summary judgment to plaintiff’s employer.
We conclude this was correct, and affirm.
FACTS AND PROCEDURAL HISTORY
I. Facts
A. Dispatch training program
In March 2011, the City of Long Beach (City) hired plaintiff and four others as
Public Safety Dispatchers I, which is a probationary, trainee position. Plaintiff’s class of
trainees consisted of three Black trainees (including plaintiff), one Hispanic trainee, and
one White trainee. The White trainee and one of the Black trainees (other than plaintiff)
had previous experience as a dispatcher.
The City’s dispatcher training program is rigorous. City dispatchers are tasked
with taking incoming 911 calls and dispatching police officers and fire fighters to assist
callers. To impart the skills necessary for this job, the City requires its trainees to attend
classroom training followed by nine months of hands-on training where the trainees
answer 911 calls and dispatch field officers while being shadowed and supervised by the
communications training officer (CTO) assigned to them. A CTO assists his or her
trainee with calls and dispatches, and also documents the trainee’s performance in weekly
written evaluations that rate the trainee’s performance numerically (on a scale of one to
four) and with narrative comments. To progress through this training program, trainees
are required to successfully meet five skill-based benchmarks of ever-increasing
difficulty—at seven weeks, nine weeks, three months, six months and nine months. Only
if a trainee masters the skills required at every benchmark will he or she be transitioned
into “solo” status for the remaining portion of his or her one-year probationary period.
Historically, only about half of the trainees achieve the final benchmark.

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 B. Plaintiff’s CTOs and performance as a trainee
The City’s protocol is to assign trainees to different CTOs as they pass the various
benchmarks, and plaintiff had four CTOs during the period of her hands-on training,
which started in May 2011. Plaintiff did not consider her assignment to different CTOs
to be punitive.
Plaintiff’s first CTO was Sarah Day (CTO Day). Plaintiff felt that Day was a good
and “fair” trainer.
After plaintiff passed the three-month benchmark, she was assigned to her second
CTO, Tony Thuong (CTO Thuong). Plaintiff believed that CTO Thuong’s evaluations of
her were accurate and fair, but thought he was “mean,” “rude” and “belittling” to her. He
also occasionally “scream[ed] at her.” Plaintiff complained about CTO Thuong’s
demeanor to Leslie Griggs (Griggs), who oversaw the supervision of all trainees, and
Griggs assigned plaintiff to a new CTO.
Plaintiff’s third CTO was Julie Kahai (CTO Kahai). Plaintiff felt she had a
“good” relationship with CTO Kahai.
After passing her six month benchmark, plaintiff was assigned to CTO Sarah
Stephenson (CTO Stephenson). Plaintiff described CTO Stephenson as a “very high
intens[ity]” person who would bounce her leg, hit tables with her hand, and yell. Plaintiff
felt CTO Stephenson was “disrespectful,” “condescending” and “belittling,” although
plaintiff did not know whether CTO Stephenson treated all of her trainees the same way.
Plaintiff complained about CTO Stephenson, and was moved to a different CTO a few
weeks before the nine-month benchmark.
Plaintiff was reassigned to her first CTO, CTO Day. Although plaintiff stated in
her interrogatory answers that, in this second assignment to CTO Day, CTO Day treated
her “as cruelly as [CTO] Thuong and [CTO] Stephenson,” plaintiff subsequently testified
at her deposition that her interrogatory answers were wrong and that CTO Day treated her
“fairly” and was an “okay” CTO.
The four CTOs’ evaluations of plaintiff’s performance were largely consistent.
All of the CTOs, including CTO Thuong and CTO Stephenson, reported in their

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evaluations that plaintiff had a good attitude and competently received 911 calls and
ordered dispatches when the call volume was slow. All of the CTOs also reported several
areas where plaintiff’s skills were lacking. Their chief concern was that plaintiff made
numerous mistakes in receiving calls and in dispatching officers whenever the call
volume was anything but slow due to her failure to listen carefully, her poor typing skills,
her tendency to document irrelevant call details, and her inability to multi-task. Plaintiff
also lacked a mastery of the City’s geography necessary to dispatch public safety officials
efficiently. CTO Stephenson and CTO Day reported that plaintiff’s inability to keep up
with heavier call volume posed a public safety risk to the officers she dispatched. These
very same deficiencies were also noted by CTOs who evaluated plaintiff when her
assigned CTO was absent, by field officers who called in to complain about poorly
handled dispatches, and by plaintiff herself, who acknowledged that her performance was
not “exemplary” and that she was not “ready to go solo” by the time of her nine-month
benchmark.
None of plaintiff’s CTOs ever made any comments to her about her race. On one
occasion, CTO Thuong told plaintiff that he had in the past been teased about his Asian
accent. Although plaintiff later said she viewed CTO Thuong’s comment “in my mind
indirectly” as a comment on people not liking her because she is Black, plaintiff never
complained to the City’s human resources department about any racial bias or
mistreatment despite being trained on how to report such matters.
C. Changes in trainee evaluation procedures
In the midst of plaintiff’s time as a trainee, Lieutenant Kenneth Rosenthal (Lt.
Rosenthal), who oversaw the entire dispatcher training program, reviewed plaintiff’s
weekly evaluations. He noted a fundamental “inconsisten[cy]” between the scores and
narrative comments in plaintiff’s evaluations that identified plaintiff’s deficient
performance on the one hand, and her CTOs’ willingness to pass her through the
benchmarks despite those deficiencies and without following up on them. To ensure that
the trainees’ progress through the program better matched their evaluation scores, Lt.
Rosenthal in November 2011 ordered several changes to how all CTOs were to supervise

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their trainees: (1) CTOs were to conduct daily evaluations rather than weekly
evaluations; (2) CTOs were to attach the actual call reports to their evaluations rather
than merely summarizing them; and (3) CTOs were to focus on the weak areas of
performance rather than on giving positive feedback. Lt. Rosenthal also declared that
trainees were no longer allowed to write comments on their own evaluations and would
be penalized for asking their CTO the same question twice. Despite these new rules,
CTO Stephenson and CTO Day continued to give plaintiff positive feedback on her
evaluations and allowed her to write comments on her evaluations. At the time Lt.
Rosenthal’s changes took effect, only the three Black trainees in plaintiff’s class
remained because the Hispanic trainee had dropped out and the White trainee had been
“solo’ed out” early.
D. Plaintiff’s resignation
Plaintiff’s nine-month benchmark was scheduled for February 4, 2012. Just six
days before, on January 29, 2012, plaintiff resigned from her job, citing “personal
reasons.”
II. Procedural History
A. Complaint
In the operative first amended complaint, plaintiff sued the City for violating the
Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) Specifically,
she alleged claims for (1) racial discrimination, (2) harassment, (3) retaliation, and
(4) failure to investigate a protected complaint.
B. Motion for summary judgment
The City filed a motion for summary judgment.
Plaintiff opposed the motion, relying primarily on evidence adduced in three other
FEHA lawsuits brought against the City—by Griggs and by the two other Black trainees
in her class—and that the parties stipulated could be used in plaintiff’s case.
The admissible evidence plaintiff proffered in opposition to summary judgment
falls into three broad categories.

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 First, plaintiff submitted evidence of conduct by Lt. Rosenthal—namely, that
(1) Sherriel Murry (Murry), the City’s senior human resources officer and Griggs’s
friend, believed that Lt. Rosenthal is a “bigot” based on what she has heard from others
who say he is two-faced, even though Murry has never heard him use racial epithets or
seen him treat White people better than Black people; (2) when Griggs asked Lt.
Rosenthal why she was made training supervisor, he told her to “go home and look in the
mirror”; (3) Lt. Rosenthal did not give Griggs a further promotion when Griggs scored
higher than the other candidates, and instead ordered a second round of interviews in
which Griggs was scored less favorably; (4) Lt. Rosenthal once called Griggs a “bitch”;
(5) Lt. Rosenthal once got off of the phone with one of the Black trainees and told
Griggs, “I don’t think he’s gonna make it”; (6) Lt. Rosenthal ordered CTO Dave Barrow
to write a memo detailing Barrow’s concerns that Griggs was favoring Black trainees,
and Barrow ended that memo by stating, “I hope this is what you wanted. I need to go
take a shower now” and later explained that the contents of his memo were true but that
he was upset with Lt. Rosenthal for making him put his concerns in a written memo
rather than allowing him to report them informally; (7) Lt. Rosenthal ordered CTO
Stephenson to reduce plaintiff’s numerical scores on her January 2, 2012 evaluation; and
(8) Lt. Rosenthal once asked plaintiff what she and Griggs (who was on medical leave at
the time) were discussing in the parking lot when, in actuality, plaintiff had been talking
with her own sister.
Second, plaintiff cited conduct by some of the City’s CTOs—namely, that
(1) CTO Jason Hunter had joked about Black and Samoan last names; (2) CTO
Stephenson once told another Black trainee that the trainee did not want to sound “like”
plaintiff because “other officers” had commented that plaintiff sounded too “ethnic,”
although CTO Stephenson did not agree with those comments; (3) CTO Hunter and CTO
Eileen Rodriguez told her that they “had a problem” with her personalized license plate,
which read “♥BNBLQ” (presumably code for “Love Being Black”); and (4) one of the
Black trainees suing the City felt that some unnamed CTOs were cliquish and less
friendly to Black employees.

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 Lastly, plaintiff cited CTO Michelle Johnson’s statement that CTO Barrow had
once mimicked Black callers in a derogative fashion, although one of CTO Barrow’s
Black trainees said CTO Barrow was “very supportive” and “very good” as his CTO.
C. Trial court’s ruling
In an eight-page tentative ruling, which the trial court subsequently adopted as its
final ruling, the court granted summary judgment to the City on all of plaintiff’s claims.
The court granted summary judgment on plaintiff’s racial discrimination claim
because she had not established two elements of a prima facie case of discrimination—
namely, that (1) she suffered an adverse employment action, and (2) the City acted with a
discriminatory motive. The court rejected plaintiff’s argument that she was
constructively discharged by the City, relying upon the undisputed facts that plaintiff’s
performance was below what was needed to pass the upcoming and more difficult nine-
month benchmark, that there was no indication that the City was planning to fire her, and
that Lt. Rosenthal’s November 2011 changes to the trainee evaluation procedures had no
effect on plaintiff’s scores as her evaluations before and after those changes were “on
par” with one another. The court also rejected plaintiff’s further arguments that she
suffered any lesser adverse employment action: It was undisputed that plaintiff was not
yet eligible for a promotion, so the City’s failure to promote her was not actionable; it
was undisputed that plaintiff’s transfers to different CTOs were common practice and, in
two instances, requested by plaintiff herself; and it was undisputed that Lt. Rosenthal’s
new procedures, as noted above, had no effect on plaintiff’s evaluations. The court
further concluded that, even if plaintiff’s resignation were considered a constructive
discharge, that plaintiff had not adduced substantial evidence to show that the City’s
concerns about plaintiff’s inability to master the skills necessary to be a “solo” dispatcher
were pretextual. Specifically, the court explained that Murry’s personal belief that Lt.
Rosenthal is a bigot was “unconnected to [any] decision making,” and that none of the
CTOs who made racially derogatory comments were ever plaintiff’s CTO.
The court granted summary judgment on plaintiff’s remaining claims. The court
rejected plaintiff’s harassment claim because neither of the CTOs who allegedly harassed

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her (CTO Thuong and CTO Stephenson) ever made racial comments. Because plaintiff’s
objection was to “supervisor’s training styles, not harassment,” there was no racially
driven harassment. The court rejected plaintiff’s retaliation claim because plaintiff at no
time lodged any complaint regarding racial discrimination or harassment and the City
consequently had no reason to retaliate against her. The court discarded as legally
unfounded plaintiff’s argument that the City “should have known” that her complaints
about two of her CTOs “went to discrimination.” The court was also unpersuaded that
the departure of all three Black trainees was evidence of retaliation. For the same reason,
the court rejected defendant’s claim that the City failed to investigate a FEHA complaint
that plaintiff never made.
D. Judgment and appeal
After the trial court entered judgment for the City, plaintiff filed a timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting the City’s motion for summary
judgment.
A party is entitled to summary judgment if it can “show that there is no triable
issue as to any material fact and that [it] is entitled to a judgment as a matter of law.”
(Code Civ. Proc., § 437c, subd. (c).) The party moving for summary judgment must
show either that the opposing party cannot establish “[o]ne or more of the elements of
[her] cause of action” or by showing a valid affirmative defense. (Code Civ. Proc.,
§ 437c, subds. (o) & (p)(2).) If the moving defendant meets this initial showing, the
burden shifts to the plaintiff to present evidence showing that a triable issue of material
fact(s) exist. (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1032.) “A triable
issue of material fact exists if, and only if, the evidence reasonably permits the [court] to
find the contested fact in favor of the plaintiff in accordance with the applicable standard
of proof.” (Rondon v. Hennessy Industries, Inc. (2016) 247 Cal.App.4th 1367, 1374.)
We review a trial court’s grant of summary judgment de novo. (Burgueno v. Regents of
University of California (2015) 243 Cal.App.4th 1052, 1057.)

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 In evaluating a motion for summary judgment on appeal, we consider only the
evidence the trial court considered unless we conclude that the trial court erred in its
evidentiary rulings. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526-527). In this case,
plaintiff’s briefs on appeal rely in part on evidence that the trial court excluded. Plaintiff
has ignored the trial court’s evidentiary rulings, and has done so by not mentioning those
rulings in her briefs and by not including in the record on appeal the court’s tentative
ruling containing those rulings or its subsequent order adopting the tentative ruling as its
final ruling. We take judicial notice of the trial court’s orders. (Evid. Code, §§ 452
& 459.) Because plaintiff does not attack the court’s evidentiary rulings (Dina v. People
ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1048 [failure to object on
appeal leaves evidentiary ruling intact]), we will not consider the following items of
excluded evidence: (1) Murry’s summary of Griggs’s statement that Lt. Rosenthal told
Griggs that he did not want plaintiff to pass probation (because it was admitted for its
effect on Murry, not for its truth); (2) Griggs’s opinion that Lt. Rosenthal’s comment
about the Black trainee not “mak[ing] it” was based on the sound of the trainee’s voice
(because that opinion was speculative); (3) Griggs’s opinion that Lt. Rosenthal ordered a
second round of interviews for her promotion due to Griggs’s race (because that opinion
was speculative); and (4) Lt. Rosenthal’s dismissal of the idea of “solo’ing” out one of
1
the other Black trainees early (because it was irrelevant). The court’s evidentiary rulings
are not an abuse of discretion in any event. (Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 852.)

1 The trial court at one point appears to exclude all evidence adduced from
discovery in the cases involving Griggs and the other two Black trainees, but this ruling is
inconsistent with the parties’ stipulation to rely upon this evidence and with the court’s
subsequent citation in its opinion and during its oral argument to this very same evidence.
In light of this uncertainty, we will treat this evidence as generally admitted absent any
specific exclusion.

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I. Discrimination
Among other things, FEHA makes it unlawful “[f]or an employer, because
of . . . race . . . to discriminate against [a] person in compensation or in terms, conditions,
or privileges of employment.” (Gov. Code, § 12940, subd. (a); Wallace v. County of
Stanislaus (2016) 245 Cal.App.4th 109, 122.) In evaluating such claims, California uses
a burden-shifting mechanism. The plaintiff-employee must first establish a prima facie
case of discrimination by producing evidence to show that “(1) [s]he was a member of a
protected class, (2) [s]he was qualified for the position [s]he sought or was performing
competently in [her] position . . ., (3) [s]he suffered an adverse employment action, such
as termination, demotion, or denial of an available job, and (4) some other circumstance
suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
355 (Guz).) If she meets this burden, it is rebuttably presumed that the employer engaged
in discrimination and the burden shifts to the employer to set forth a legitimate,
nondiscriminatory reason for the “adverse employment action” the plaintiff-employee
suffered. (Id. at pp. 355-356, 361; Swanson v. Morongo Unified School Dist. (2014)
232 Cal.App.4th 954, 964-965.) Once the employer sets forth such a reason, the
presumption disappears and the burden shifts back to the plaintiff-employee to
“‘“produc[e] substantial evidence that the employer’s stated reasons were untrue or
pretextual, or that the employer acted with a discriminatory animus, such that a
reasonable trier of fact could conclude that the employer engaged in intentional
discrimination or other unlawful action.”’” (Swanson, at p. 965, quoting McGrory
v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1529.)
A. Adverse employment action
Plaintiff first attacks the trial court’s conclusion that she did not establish, as part
of her prima facie case, that she was subjected to any “adverse employment action.”
Plaintiff asserts that she was (1) constructively discharged, (2) not promoted,
(3) transferred among various CTOs, and (4) subject to Lt. Rosenthal’s new evaluation
procedures.

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 An employee who resigns will be treated as being constructively discharged by her
employer if she demonstrates that her resignation was “employer-coerced, [and] not
caused by the voluntary action of the employee or by conditions . . . beyond the
employer’s reasonable control.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1248.) Thus, “[i]n order to establish a constructive discharge, an employee must plead
and prove . . . that [her] employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the employee’s
resignation that a reasonable employer would realize that a reasonable person in the
employee’s position would be compelled to resign.” (Id. at p. 1251; accord, Vasquez
v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 826.)
“‘[S]ingle, trivial, or isolated acts’” are generally not sufficient to support a finding of
constructive discharge. (Turner, at p. 1247; Valdez v. City of Los Angeles (1991)
231 Cal.App.3d 1043, 1056.) Whether the conditions were so intolerable as to justify an
employee’s decision to resign is normally a question of fact, but summary judgment may
be appropriate where the plaintiff-employee’s decision to resign is unreasonable as a
matter of law. (Vasquez, at p. 827.)
Plaintiff points to several working conditions that she claims were “intolerable or
aggravated.” First, she argues that CTO Thuong and CTO Stephenson treated her poorly.
However, plaintiff admits that neither CTO made racially charged comments, plaintiff
never proved that they had a different demeanor with their other trainees, their
evaluations of plaintiff were equivalent to the evaluations of the CTOs she liked, and
plaintiff was moved to different CTOs once she complained about their demeanor.
Second, plaintiff argues that Lt. Rosenthal changed the evaluation procedures, but those
changes affected all of the remaining trainees and did not affect plaintiff’s evaluation
scores, which remained relatively the same both before and after the changes. Third,
plaintiff argues that other CTOs made racially disparaging comments, and that CTO
Thuong once commented about being ridiculed for his Asian accent. However, plaintiff
introduced no evidence that she was aware of the other CTOs’ disparaging comments,
and such comments could not have affected plaintiff’s working conditions if she did not

11
know about them. What is more, CTO Thuong’s single comment was a one-time
occurrence that had no link to plaintiff or her race. Fourth, plaintiff recites that Lt.
Rosenthal ordered CTO Stephenson to change the numerical scores on her January 2,
2012 evaluation of plaintiff, but this was a single occasion that was ameliorated by CTO
Stephenson’s subsequent evaluations giving plaintiff higher ratings and by plaintiff’s
subsequent transfer back to CTO Day. Even taken together, the incidents plaintiff points
to do not amount to working conditions that a reasonable person would find “intolerable
or aggravated.” Plaintiff’s decision to resign was not the product of employer coercion,
but rather the product of being days away from a benchmark deadline she later admitted
she would not have passed.
Nor was plaintiff subjected to other adverse employment actions. FEHA prohibits
adverse employment actions short of discharge if they are “reasonably likely to adversely
and materially affect an employee’s job performance or opportunity for advancement in
his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054
(Yanowitz).) The actions plaintiff cites do not meet this definition. Plaintiff asserts she
was not promoted, but frankly admitted she lacked the skills to satisfy the nine-month
benchmark needed for promotion. Plaintiff notes that she was transferred among four
different CTOs, but this was common practice, plaintiff requested two of the transfers,
and plaintiff’s evaluations remained relatively the same no matter who was serving as her
CTO. Plaintiff finally points to the implementation of Lt. Rosenthal’s new evaluation
procedures, but these changes affected all trainees from that point forward and also did
not alter plaintiff’s performance or her CTOs’ evaluations of her performance.
B. Discriminatory motive
Plaintiff also attacks the trial court’s ruling that she did not make a prima facie
showing of discriminatory motive. Even if we assume plaintiff made this showing, as our
Supreme Court has observed, “an 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.” (Guz, supra, 24 Cal.4th at p. 361.)

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 It is undisputed that none of plaintiff’s four CTOs ever said anything to her that
was racially derogatory and that her evaluation scores were consistent across CTOs and
were consistently declining as she neared the final and most difficult benchmark.
Plaintiff directs us to three categories of evidence that, in her view, nevertheless justify a
rational inference that the City’s treatment of her was motivated by racial discrimination.
First, she cites Murry’s opinion that Lt. Rosenthal is a “bigot,” and argues that
Murry’s opinion is effectively a binding admission of discriminatory animus in light of
the City’s designation of Murry as a “person most knowledgeable” in the other pending
racial discrimination cases. As the trial court noted during the hearing on the summary
judgment motion, Murry’s opinion is entitled to little or no weight because it is “not
supported” by anything Murry personally observed and because it is based solely on the
view of others that Lt. Rosenthal is “two-faced,” even though Murry has never heard him
make racial slurs or treat Black persons less favorably than others. Even if Murry’s
opinion had any basis, FEHA “does not purport to outlaw discriminatory thoughts [or]
beliefs” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231), and there was no
evidence that Lt. Rosenthal’s “two-faced” personality that never before prompted him to
treat Blacks differently was connected in any way to his decision to implement changes
to the evaluation procedures or order CTO Stephenson to modify one of plaintiff’s daily
evaluation ratings. Nor does Murry’s status as a person most knowledge somehow
transform her foundationless opinion that Lt. Rosenthal is a “bigot” into a binding
stipulation of discriminatory animus on behalf of the City. Plaintiff cites O’Mary
v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570-571 and Dart
Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1077-1078, but
those cases deal, respectively, with the admissibility of an authorized employee’s
statement under Evidence Code section 1222 and an agent’s authority to bind his
principal. They do not support the sweeping proposition plaintiff advances.
Second, plaintiff cites several pieces of evidence of the City’s discriminatory
conduct against other employees, which is generally relevant as so-called “me too”
evidence. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92, 113.) She points to Lt.

13
Rosenthal’s comment that another Black recruit was “not gonna make it,” but this
comment by itself evinces no racial animus. Plaintiff also points to Lt. Rosenthal’s
conversation with Griggs in which she asked why she had been promoted and he
responded that Griggs should “go home and look in the mirror.” Although Lt. Rosenthal,
by his answer, may well have been indicating to Griggs his belief that she had been given
favorable treatment through a promotion due to her race, his answer does not lead to the
inference that Lt. Rosenthal is willing to treat Griggs or any other Black employee less
favorably. Indeed, neither Murry nor plaintiff ever heard Lt. Rosenthal make any racially
disparaging comments. Along the same lines, Lt. Rosenthal’s decision to subject the
candidates for the further promotion Griggs sought to an additional round of interviews,
and his statement that Griggs was a “bitch,” do not reflect any racial bias. Plaintiff next
notes that CTO Stephenson had told another trainee that “other officers” had commented
that plaintiff sounded “too ethnic,” but CTO Stephenson did not mention race and did not
feel that the other officers’ comments were accurate. Plaintiff cites the belief of one of
the other Black trainees suing the City that some of the CTOs were cliquish and less
friendly to Black employees and evidence that other CTOs had made racially disparaging
remarks and commented on her personalized license plate, but there is no evidence that
plaintiff worked with any of the CTOs who were cliquish and it is undisputed that none
of plaintiff’s CTOs said anything racially derogatory or treated her differently because of
her race. Plaintiff lastly cites the fact that the White trainee was “solo’ed” out early, but
at the hearing on the summary judgment motion, disavowed any notion that the White
trainee “promoted out when she did because she’s White.”
Lastly, plaintiff cites a mélange of other, circumstantial evidence. She points to
the timing of Lt. Rosenthal’s decision to implement changes to the evaluation program,
which occurred after the White trainee had been promoted and the Hispanic trainee had
resigned, leaving only the three Black trainees remaining. However, Lt. Rosenthal
contemporaneously documented his reasons for the change, those reasons are supported
by the evaluations he studied in concluding that there was a mismatch between
evaluations and graduation through the various benchmarks, and those reasons had

14
nothing to do with race. Plaintiff cites the language at the end of CTO Barrow’s
memorandum reporting Griggs’s favoritism toward Black trainees, but CTO Barrow
explained that the content of his memo was accurate and that this language reflected his
distaste for having to document his concerns. Plaintiff argues that Lt. Rosenthal’s
mistake in believing that plaintiff was talking with Griggs rather than someone else
reflects a paranoia about Black employees conspiring against him, but plaintiff
acknowledged that Lt. Rosenthal might be paranoid because Griggs was supposed to
have been on medical leave (and thus not supposed to be in the parking lot) at the time.
Plaintiff finally cites the City’s failure to investigate her complaint of racial animus (e.g.,
Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1344-1345
[inadequate investigation can be evidence of pretext]), but plaintiff never filed a
complaint that would have put the City on notice that there was anything to investigate.
II. Harassment
FEHA also makes it unlawful “[f]or an employer . . . to harass an employee”
“because of race.” (Gov. Code, § 12940, subd. (j)(1).) To prevail on this claim, a
plaintiff-employee must establish that “‘(1) [she] belongs to a protected group; (2) [she]
was subject to unwelcome [racial] harassment; (3) the harassment complained of was
based on [her race]; (4) the harassment complained of was sufficiently pervasive so as to
alter the conditions of employment and create an abusive working environment.’
[Citation.]” (Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1377.) Because “‘“[h]arassment consists of conduct outside the
scope of necessary job performance [citation]”’” (Roby v. McKesson Corp. (2009)
47 Cal.4th 686, 707), “commonly necessary personnel management actions such as hiring
and firing, job or project assignments, . . . promotion or demotion, [and] performance
evaluations . . . , and the like” typically “do not come within the meaning of harassment”
(Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65) unless those
personnel actions “have a secondary effect of communicating a hostile message” (Roby,
at p. 709).

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 Plaintiff argues that the trial court erred in concluding she was not subject to
harassment, and cites (1) Murry’s opinion that Lt. Rosenthal is a “bigot,” and (2) how she
was treated by CTO Thuong and CTO Stephenson. As discussed above, Murry’s opinion
is without foundation. More pertinent here, Lt. Rosenthal never did anything to or
toward plaintiff that was racially harassing. He modified the evaluation procedures and
ordered CTO Stephenson to change her scores on a single day’s evaluation, but the first is
not racially driven and the second was a one-time event and not “pervasive.” Plaintiff’s
treatment by CTO Thuong and CTO Stephenson may have felt harassing to plaintiff, but
it was not racially harassing for the reasons discussed above.
III. Retaliation
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 this part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (Gov. Code, § 12940, subd. (h).) To prevail on a retaliation
claim, the plaintiff-employee must prove that “(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, supra, 36 Cal.4th at p. 1042.) A claim for retaliation uses the same, three-step
burden-shifting mechanism as a claim for discrimination. (Ibid.)
Plaintiff asserts that the trial court erred in granting summary judgment on her
retaliation claim because (1) she was subjected to an adverse employment action, and
(2) the City should have known that her complaints about CTO Thuong and CTO
Stephenson were based on racial discrimination. We reject both arguments. As
discussed above, plaintiff did not suffer any adverse employment action. Plaintiff’s
second argument rests on an misunderstanding of the pertinent law. Although a plaintiff
need not file a complaint or “explicitly inform [her] employer that she believed [a
particular action she opposed] was discriminatory,” the plaintiff must nevertheless
establish that the “employer knows that the employee’s actions” were “based upon a
reasonable belief that the employer was engaging in discrimination”; “an employee’s

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unarticulated belief that an employer is engaging in discrimination will not suffice.”
(Id. at p. 1046, second italics added.) Here, plaintiff’s complaints about CTO Thuong
and CTO Stephenson were grounded solely on their demeanor, not on anything racially
derogatory that they said or did. Plaintiff also never filed a complaint. There is no
evidence to support a finding that the City knew plaintiff’s dissatisfaction with either
CTO was due to the CTO’s racially discriminatory behavior, and plaintiff’s contention
that the City “should have known” is not legally cognizable. Also, because plaintiff took
no action in support of the discrimination or harassment claims brought by any of the
other City employees, whether the City knew of those other employees’ complaints is of
no consequence.
IV. Failure To Investigate a Complaint
FEHA further prohibits “an employer” from “fail[ing] to take all reasonable steps
necessary to prevent discrimination and harassment from occurring.” (Gov. Code,
§ 12940, subd. (k).) This claim is by its nature auxiliary: Without actionable
discrimination, harassment or retaliation, there can be no claim for failure to prevent
discrimination or harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th
860, 880.) For the reasons discussed above, plaintiff has not established sufficient
evidence to create a triable issue of fact as to whether she was the victim of
discrimination, harassment or retaliation. This is fatal to her failure-to-investigate claim.
DISPOSITION
The judgment is affirmed. The City is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.
HOFFSTADT
We concur:

_________________________, P. J.
BOREN

_________________________, J.
ASHMANN-GERST

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