Russell v. City and County of San Francisco CA1/4

Filed 3/24/21 Russell v. City and County of San Francisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JOSEY RUSSELL et al.,
Plaintiffs and Appellants,
A159579
v.
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO, Super. Ct. No. CGC-17-562245)
Defendant and Respondent.

Josey Russell and Nadia Mohamed (collectively, Plaintiffs) are
employees of the Police Department (the Department) of the City and County
of San Francisco (the City). They brought this action under the Fair
Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) alleging
the City discriminated against them based on their gender and sexual
orientation, unlawfully retaliated against them, and failed to maintain an
environment free from harassment. The trial court granted summary
judgment to the City on all causes of action, and Plaintiffs appeal the ensuing
judgment. We shall affirm.

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 FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs’ Relationship and Work Assignments
Plaintiffs both work for the Department, Russell as a sergeant and
Mohamed as a police officer. Both are women, and they have been in a
romantic relationship since 2014.
Beginning in August 2015, Plaintiffs were assigned to the same police
station, the Mission Station. They both worked the swing shift, and their
shifts overlapped a few days a week. Although Russell was not Mohamed’s
direct supervisor, she sometimes signed off on Mohamed’s police reports and
directed her to handle calls for service.
Mohamed became a field training officer (FTO) in 2016 with
responsibility to train recruits to perform as solo officers. This role provided
an additional $450 or $500 per paycheck. Russell was the training
coordinator for the FTO office and was responsible for scheduling and
assigning recruits to officers.
Training of Officer Newman
In September 2016 a recruit, Officer Newman, was assigned to the
Mission Station for field training. Newman’s father was a lieutenant with
the Department, which also employed three other members of Officer
Newman’s extended family.
In October 2016, Russell assigned Mohammed to train Officer Newman
during “phase two” of his training. Another sergeant, Sergeant Petuya, was
his phase two FTO sergeant. In phase three of his training, Newman was
assigned to Officer Prieto, with Russell as his FTO sergeant. Both Mohamed
and Russell documented problems with Newman’s performance during his
training, as did others with responsibility for training Newman.

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 After completing phase two of his training, on December 27, 2016,
Officer Newman wrote a memorandum to the commanding officer of the
training academy, raising concerns about the training he had received from
Mohamed. He said Mohamed did not evaluate his work fairly or impartially,
that she questioned his competence and his integrity, accused him of lying in
a police report, told him he was sexist and abused his powers over detainees,
and avoided speaking with him. He said he had felt compelled to sign “Daily
Observation Reports” from Mohamed, although he did not agree with the
reports, because of the romantic relationship between Mohamed and Russell.
Now in phase three, he asked to be assigned to a new FTO sergeant or a new
training station. In a second memorandum the same day, he reported that a
lieutenant had told him he did not have to sign Daily Observation Reports if
he disagreed with their contents. In a third memorandum, on January 8,
2017, Officer Newman reiterated these complaints and said that his current
FTO officer was also unduly harsh on him, raising officer safety and civil
rights issues and evaluating him unfairly.
Officer Newman spoke with his father, who told him Plaintiffs might be
in a relationship and he should not “address anything” to Russell, although
Newman had previously found Russell to be approachable, helpful, and an
asset to all the recruits. Newman noticed that Russell and Mohamed drove
into work together and spent time together, and he was told that they were a
couple. Because of this, he testified, and because Sergeant Petuya and
Russell were friends, he did not feel comfortable raising his concerns about
the way he was being treated during phase two with his supervisors, but
chose to submit the written complaint instead.

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Plaintiffs’ 2017 Complaints
Weeks later on February 17, 2017, Russell wrote a lengthy
memorandum to Captain Peter Walsh alleging she was being retaliated
against because Officer Newman, whom she described as a “ ‘Legacy kid,’ ”
was not receiving passing scores in the FTO program. She complained that
Newman’s father, Lieutenant J. Newman, and other family members had
made numerous phone calls to the field training office and the Mission
Station to ensure Officer Newman passed the FTO program, and that
Lieutenant Newman told her superiors that she and Mohamed were in a
lesbian relationship and were conspiring to cause Officer Newman to fail the
FTO program. According to Russell, she had been forced to have closed-door
discussions with her superiors and forced to discuss her personal life and her
relationship with Mohamed. She also said her supervisors had questioned
officers with whom she was friendly, as well as other sergeants, as to whether
the rumors of a romantic relationship between her and Mohamed were true.
A lieutenant suggested that she change her schedule because of the alleged
relationship with Mohamed and told her their relationship was common
knowledge, to which she replied it was a rumor.
Another lieutenant, Lieutenant Caturay, spoke to Russell privately and
told her that others had noticed her relationship with Mohamed and had seen
Mohamed and her patrol partner hanging out in the sergeant’s office, and
that some believed Russell gave Mohamed preferential treatment. Russell’s
memorandum states Lieutenant Caturay could cite no specific instance where
she had given Mohamed preferential treatment, that other officers involved
in the FTO program had also given Officer Newman bad marks without being
accused of improperly conspiring against him, that male officers had hung
out with male sergeants in the Sergeants’ room, and that there were

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opposite-sex couples at Mission Station that had not been similarly “talked
to” because nobody had “complained about them.”
In her memorandum, Russell also raised complaints about
inappropriate conduct at the station. She said Lieutenant Caturay had made
inappropriate jokes during line-up; for example, when speaking with Russell
and two other sergeants about how to deal with the increase in prostitution
in the district, he said they should “ ‘just stick a finger in the dyke.’ ”1
Another lieutenant, Lieutenant Burke, referred to a female-to-male
transgender sergeant as “her” rather than “him,” even after Russell corrected
him. Russell also said she had seen a screen shot of Newman’s Facebook
page, at a time when it contained a homophobic slur.
Mohamed, too, made complaints about Lieutenant Caturay in February
2017, saying she felt he was harassing and retaliating against her. As
examples, she pointed to two incidents, one in October 2015 and one in
February 2016, when he raised concerns about her not wearing the correct
jacket. After Mohamed gave failing grades to Officer Newman in November
and December 2016 and Newman’s father, Lieutenant Newman, contacted
the lieutenants and captain of Mission Station, Caturay singled her out by
asking Mohamed’s current recruit if he felt Mohamed was neglecting him,
and Caturay asked officers about her sexual orientation and personal
relationships. Mohamed said she believed Lieutenant Caturay was targeting
her for her race, sex, and sexual orientation, and she requested an
investigation.
Others also began to treat Officer Mohamed unfairly, she thought. Her
superiors had already reviewed the Daily Observation Reports she wrote

1Because this alleged comment was spoken, it is unclear whether the
term should be spelled “dyke,” as Plaintiffs do, or “dike,” as the City does.

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regarding Newman’s training and commended her for them, but in January
2017 they reversed course and summoned her for counseling. Sergeant
O’Connor of the field training program raised with Mohamed several
instances in which he thought she should have intervened more quickly while
training Newman. This was in spite of the fact that failure to intervene had
not been an issue previously brought up in training FTO’s, according to
Mohamed’s patrol partner, who was also an FTO. After this reprimand,
Mohamed testified, Sergeant Montoya began giving her assignments that
required her to leave the district, and her recruits were assigned to take rape
reports and domestic violence reports, all tasks that “nobody wants.”
Mohamed thought Montoya was retaliating against her and singling her out.
She testified that Officer Prieto, who is male, took Officer Newman’s gun in a
misguided attempt to impress on the recruit a lesson about officer safety but
was not disciplined for doing so. Another officer testified that she heard
Sergeant Montoya comment, in a manner directed at Russell or Mohamed,
“ ‘She may have won the battle, but I will win the war.’ ” Although Montoya
denied making that statement, we take it as true for purposes of deciding this
motion.
The Department ultimately concluded Mohamed’s allegations, as well
as complaints she made later, either were untimely or did not raise an
inference of harassment, discrimination, or retaliation and did not merit
further investigation.
Before Newman’s complaint, Mohamed had chosen not to disclose her
sexual orientation at work out of concern that the Department treated the
LGBTQ community poorly. She testified at her deposition that some of her
co-workers thought being gay was “disgusting,” and she reported a

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conversation in which another officer said lesbians did not have sex “ ‘the
right way.’ ”
Mohamed’s Transfer to Central Station
The Department’s Human Resources Manager received a copy of a
policy the San Francisco Civil Service Commission adopted in February 2017,
which prohibited employees from making, participating in making, or
influencing an employment decision involving a “ ‘related person,’ ” a category
that includes those in romantic relationships. The Department then issued a
bulletin entitled “ ‘Policy on Family and Romantic Relationships at Work’ ” in
April 2017. The policy prohibited employees from supervising the work of
any related person and required employees to report to the manager if they
directly or indirectly supervised a related person.
Pursuant to the new policy, Plaintiffs reported their relationship to the
Department in May 2017. The Department then transferred Mohamed to
another station, the Central District Station, which was also a training
station that would give Mohamed the opportunity to continue acting as an
FTO. Her rank, pay, and patrol duties did not change, except that the
Central Station received fewer recruits than the Mission Station, so she had
fewer opportunities to work as an FTO.
Through her attorney, Mohamed complained about the transfer,
arguing the Central Station was less favorable than the Mission Station, that
she would lose income from less frequent FTO opportunities, and that the
locker she was assigned was next to that of a Sergeant Newman, a relative of
Officer Newman. Also, Officer Nicholas Buckley testified at his deposition
that the reputation of Central Station was that “people that have issues are
there.” The transfer order indicated Mohamed’s transfer was by “ ‘chief’s
order,’ ” which Mohamed believed suggested the transfer had been the result

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of a disciplinary action. The Chief of Police stated in a declaration that he
did not know of Mohamed and Russell’s complaints when he decided to
transfer Mohamed to Central Station. He described matters slightly
differently in his deposition, testifying that the complaints were not a
consideration when he decided to transfer Mohamed.
Before Mohamed was transferred, the Department’s human resources
manager, Benjamin Houston, determined that some of Russell’s and
Mohamed’s shifts overlapped. He did not look into how many shifts they
worked together and into whether Russell directly supervised Mohamed. He
recommended that the conflict be resolved by transferring the subordinate
officer, i.e., Mohamed, and did not consider having them assigned to different
shifts at the Mission Station.
One other couple in the Department reported a romantic relationship
involving employees at the same active duty station in which one supervised
the other, in that case a woman and a man. To bring that couple into
compliance with the policy, the Department also reassigned the lower-
ranking employee, a man, to another station.
On January 24, 2018, Mohamed submitted a request to be transferred
out of the Central Station, explaining that a few months after her transfer to
the station, an Arab officer was “targeted for hate” and was immediately
transferred. Because Mohamed, who is African American, also has a Muslim
name, she asked to be transferred as well. Her request was granted, but not
until June 2018.
Investigations After Plaintiffs’ Complaints
Mohamed was investigated or disciplined on a number of occasions
after Newman raised his concerns about her and Russell. Plaintiffs contend

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these incidents were due to her sexual orientation, and that other officers
were not disciplined for similar behavior.
In March 2017, Sergeant Montoya had a counseling session with
Mohamed after a lieutenant, Lieutenant Gutierrez, told him that Mohamed
showed disrespect when addressed by her superiors; specifically—unlike the
other officers—during lineup she did not come to attention when called to do
so, she would turn as if she was ready to leave before being dismissed, and
she would roll her eyes when information was being given. Montoya’s
memorandum regarding the session indicated Mohamed raised her voice and
became defensive and argumentative. Another sergeant who was working in
the room during the counseling session, Sergeant Petuya, confirmed in his
deposition that Mohamed got “a little defensive,” but did not recall her
raising her voice. In his deposition, Montoya testified that saluting during
lineups was not a written policy but “more of a tradition”; that he and other
officers sometimes did not salute at the end of lineups, depending on who was
in charge; that Gutierrez was “more old school” and liked officers to salute;
and that Mohamed was the only officer he had seen fail to salute Gutierrez.
He also testified that when counseling other officers for violating the
Department’s grooming policy, he spoke to the officer more than once before
putting the matter in writing.
Mohamed submitted a rebuttal to Sergeant Montoya’s account of the
counseling session on April 27, 2017. She said Sergeant Montoya had told
her angrily during the counseling session that she needed to improve her
attitude, but did not give examples of how she needed to improve. She
contended that for three years she had never saluted, that she had not
previously been told she should do so, and that other officers likewise did not
salute regularly. She said she was suffering discrimination and retaliation

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because she would not take part in nepotism, because she was in a
relationship with Russell, and because of her sexual orientation.
Sergeant Montoya wrote a memorandum two days later, alleging
Mohamed was disrespectful and repeatedly questioned his orders when he
directed her to prepare a memorandum about a collision involving a police
car in which she was a passenger. Montoya recommended the matter be
forwarded to Internal Affairs for investigation. In a declaration, Mohamed
averred she had never previously been required to write a statement—rather
than giving a verbal report—when a recruit was involved in a non-injury
collision, and that she did write the statement as ordered. According to
Montoya, Lieutenant Gutierrez ordered him to write the memorandum and
refer it to Internal Affairs. Mohamed was reprimanded and ordered for
retraining on the Department’s rule regarding respectfulness toward
superiors in September 2017, and the information was placed in her
personnel file.
In May 2018, Mohamed was admonished and retrained as a result of an
incident on January 23, 2017 in which a citizen complained she did not
display her star on her outermost garment and refused to provide her name
and star number during a service call after a traffic accident. This was in
spite of the fact that Mohamed had previously participated in mediation,
apparently with the complainant, and had been informed in August 12, 2017
that the case was closed.
Russell was also the subject of several Internal Affairs investigations in
2017. In connection with the January 23, 2017 incident that led to Mohamed
being reprimanded, Russell was investigated for failing to submit a citizen
complaint form to the Office of Citizen Complaints, for muting her body worn
camera while speaking with the citizen, and for showing preferential

10
treatment to Mohamed. She was reprimanded in August 2018 and retrained.
According to the notice of intent to impose discipline, Mohamed and her
partner responded to the collision, and a person involved in the collision, Ms.
Donofrio, requested a supervisor. Russell came to the scene, and Donofrio
said she would like to make a complaint against Mohamed. Although Russell
was “ ‘supportive,’ ” she did not actually take the complaint and did not tell
the lieutenants on duty about the complaint. She muted her body worn
camera during his conversation with Donofrio. This conduct, the Department
concluded, constituted neglect of duty for failing to take the complaint and for
muting her camera.
There are several things about this disciplinary action that are
troubling. Russell testified that Lieutenant Caturay investigated the
January 23, 2017 incident himself, that he called Donofrio months after the
incident and asked leading questions of Donofrio when she said nice things
about how Russell had handled the call, and that it was not a normal practice
for a lieutenant to try to elicit a complaint from a citizen. Russell also
testified that at the accident scene she had gone out of her way to explain to
Donofrio the process for making a formal complaint, and that Donofrio had
declined to do so at that time, saying she preferred to go home and consider it
further before deciding to lodge a complaint. Finally, Russell testified, and
Lieutenant Gutierrez confirmed, that the policy establishing standards for
muting body worn cameras did not come into effect until several months after
the incident, and neither Russell nor Gutierrez was aware of anyone being
counseled or reprimanded for muting their camera before the change in
policy.
In June 2017, Internal Affairs investigated Russell for improperly
inspecting Mohamed’s Performance Improvement Plan (PIP) binder, a

11
confidential personnel record. She was admonished and retrained in April
2018, but her job duties and salary were not affected. The order to admonish
and retrain her explained that Russell examined the binder at Mohamed’s
request and that Russell believed it was permissible to review it in those
circumstances, but that the Department’s manual “only permits sergeants to
review PiP folders of those members in their group.” The order noted the
admonishment “does not constitute discipline.” (Italics omitted.) As evidence
that Russell did not act improperly, Plaintiffs point to the deposition
testimony of Chief of Police William Scott that he thought there could be
situations in which an officer could give permission to someone not her direct
supervisor to inspect her PIP binder; to Sergeant Montoya’s testimony that
he had sometimes placed documents in the PIP binders of officers whom he
did not supervise directly; and to Sergeant Petuya’s testimony that as far as
he knew, he could look into the binder of someone for whom he was not the
PIP sergeant.
Russell was investigated a third time, along with other sergeants, for
failing to take appropriate action when officers were watching a pornographic
video that was not work-related in August 2017; three officers were also
investigated for watching the material. The case was closed for insufficient
evidence and no further action was taken. Russell believed Sergeant
Montoya brought the complaint anonymously and included her as retaliation,
and she testified she was off duty the day of the alleged incident.
Sergeant Montoya also made a complaint alleging Russell made an
inappropriate comment in front of other officers insinuating that, as a gay
man, he might have HIV. When Russell learned of the complaint in
December 2017, she denied having made such a comment, and again
concluded Montoya’s complaint was retaliatory. Nothing came of Montoya’s

12
allegation except that on December 30, 2017, Russell was made to sign a
statement that she understood retaliation was prohibited.
Procedural History
Plaintiffs brought this action against the City, alleging causes of action
for unlawful discrimination based on gender and sexual orientation, unlawful
retaliation for engaging in activity protected under FEHA, failure to
maintain an environment free from harassment, and unlawful discrimination
against Mohamed based on race.
The City moved for summary judgment. The trial court granted the
motion. It ruled that all causes of action failed because Plaintiffs could not
demonstrate an adverse employment action, that Plaintiffs had failed to
demonstrate more than isolated and sporadic remarks that did not amount to
harassment, that there was no evidence Chief Scott harbored any animus
toward Plaintiffs, and that the evidence was not susceptible to a “ ‘cat’s
paw’ ” theory of liability as numerous people were involved with Plaintiffs’
discipline. The court further concluded Mohamed had failed to exhaust
administrative remedies on her claim of racial discrimination, a conclusion
Plaintiffs do not contest on appeal. The court entered judgment accordingly.
This timely appeal ensued.
DISCUSSION
I. Legal Standards
Our standard of review is well settled. We review the grant of
summary judgment de novo, deciding independently whether the undisputed
facts negate the Plaintiffs’ claims. (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 253 (Nazir).) We review the evidence in the light most
favorable to the Plaintiffs, liberally construing their evidentiary submissions

13
and resolving any evidentiary doubts or ambiguities in Plaintiffs’ favor. (Id.
at p. 254.)
California uses a burden-shifting procedure to resolve employment
discrimination cases. The plaintiff has an initial burden to establish a prima
facie case of discrimination by showing actions taken by an employer from
which it can be inferred, if the actions are not explained, that it is more likely
than not the actions were based on an improper discriminatory criterion.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–355 (Guz).) This
showing generally requires evidence that the plaintiff was a member of a
protected class, that she was qualified for the position sought or was
performing competently, that she suffered an adverse employment action,
and that some other circumstance suggests the motive was discriminatory.
(Id. at p. 355.) An adverse employment action is not shown by “[m]inor or
relatively trivial adverse actions or conduct by employers or fellow employees
that, from an objective perspective, are reasonably likely to do no more than
anger or upset an employee.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1054 (Yanowitz).) But “adverse treatment that is reasonably
likely to impair a reasonable employee’s job performance or prospects for
advancement or promotion” is sufficient. (Id. at pp. 1054–1055.)
If the plaintiff establishes a prima facie case, the burden shifts to the
employer to produce admissible evidence sufficient to raise a genuine issue of
fact that the action was taken for a legitimate, nondiscriminatory reason.
(Guz, supra, 24 Cal.4th at pp. 355–356.) If the employer does so, the
presumption of discrimination disappears and, to prevail, the plaintiff has
the burden to offer substantial evidence that the stated nondiscriminatory
reason was untrue or pretextual, or evidence the employer acted with

14
discriminatory animus, or a combination of the two. (Foroudi v. The
Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007 (Foroudi); Guz, at p. 356.)
In the context of summary judgment, this framework is modified. The
employer, as the moving party, “ ‘ “has the initial burden to present
admissible evidence showing either that one or more elements of plaintiff’s
prima facie case is lacking or that the adverse employment action was based
upon legitimate, nondiscriminatory factors.” ’ ” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 577 (Ortiz).) If the employer does so, the
burden shifts to the employee to demonstrate a triable issue of fact with
“ ‘ “substantial evidence that the employer’s stated reasons were untrue or
pretextual, or that the employer acted with discriminatory animus, such that
a reasonable trier of fact could conclude that the employer engaged in
intentional discrimination or other unlawful action.” ’ ” (Id. at pp. 577–578.)
Although “ ‘an employee’s evidence submitted in opposition to an
employer’s motion for summary judgment is construed liberally, it “remains
subject to careful scrutiny.” [Citation.] The employee’s “subjective beliefs in
an employment discrimination case do not create a genuine issue of fact; nor
do uncorroborated and self-serving declarations.” [Citation.] The employee’s
evidence must relate to the motivation of the decision makers and prove, by
nonspeculative evidence, “an actual causal link between prohibited
motivation and termination.” ’ [Citation.] Moreover, the ‘stronger the
employer’s showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable inference of a
discriminatory motive.’ ” (Foroudi, supra, 57 Cal.App.5th at pp. 1007–1008,
quoting Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1159 (Featherstone).)

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 To show an employer’s stated reasons are pretextual, it is not enough
simply to “ ‘show that the employer’s decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.’ ” (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1005, accord, Featherstone, supra, 10 Cal.App.5th at
p. 1159.) Instead, the employee must “ ‘demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them “unworthy of credence[]” [citation], and
hence infer “that the employer did not act for [] [the asserted] non-
discriminatory reasons.” ’ ” (Hersant, at p. 1005, bracketed deletions added.)
The rules for resolving retaliation claims under FEHA are similar. To
establish a prima facie case of retaliation under FEHA, a plaintiff must show
she “engaged in a ‘protected activity,’ the [employer] subjected [her] to an
adverse employment action, and a causal link existed between the protected
activity and the [employer’s] action.” (Thompson v. City of Monrovia (2010)
186 Cal.App.4th 860, 874 (Thompson).) A retaliatory motive is proved by
showing that the plaintiff engaged in a protected activity, that her employer
was aware of the protected activity, and that the adverse action took place
within a relatively short time afterward. (Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 69 (Morgan).) Once the employee meets
this burden, the burden shifts to the employer to “offer a legitimate,
nonretaliatory reason for the adverse employment action.” (Yanowitz, supra,
36 Cal.4th at p. 1042.) If the employer does so, the burden returns to the
employee to prove intentional retaliation. (Ibid.) Pretext may be established
either directly by showing a discriminatory reason more likely motivated the

16
employer, or indirectly by showing the proffered reasons are unworthy of
credence. (Morgan, supra, 88 Cal.App.4th at p. 68.) On summary judgment,
the plaintiff must establish a material factual dispute as to whether the
employer’s conduct was in retaliation for protected conduct. (Thompson, at
p. 876.)
II. Adverse Employment Actions
We first consider whether Plaintiffs suffered adverse employment
actions for purposes of their causes of action for discrimination and
retaliation. The trial court concluded neither Russell nor Mohamed suffered
adverse employment actions for purposes of FEHA. (See McRae v.
Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 392
(McRae) [letter of instruction not adverse action where there was no evidence
it was likely to lead to denial of employment benefits and privileges]; cf.,
Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471, 485 [pretextual
investigation may be adverse employment action].) For purposes of summary
judgment, we disagree.
An adverse employment action does not mean merely a change contrary
to the employee’s interests or not to the employee’s liking. (Akers v. County of
San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers); McRae, supra, 142
Cal.App.4th at p. 386.) Neither is the concept limited to “ ‘ultimate’
employment acts, such as a specific hiring, firing, demotion, or failure to
promote decision.” (Akers, at p. 1455.) Rather, an employer’s action is
treated as adverse only if it had a substantial and material adverse effect on
the terms and conditions of the plaintiff’s employment. (Ibid.) This
requirement guards against the risk that courts “will be thrust into the role
of personnel officers, becoming entangled in every conceivable form of
employee job dissatisfaction.” (Ibid.)

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 In some cases, an employee might be subjected to a series of
employment actions, some of which might not, standing alone, constitute a
material adverse change in the conditions of employment. (McRae, supra,
142 Cal.App.4th at p. 387.) In those cases, courts use a totality of the
circumstances approach, bearing in mind that there “is no requirement that
an employer’s retaliatory acts constitute one swift blow, rather than a series
of subtle, yet damaging, injuries.” (Yanowitz, supra, 36 Cal.4th at p. 1055;
see McRae, supra, 142 Cal.App.4th at pp. 387–388.)
Thus, in Yanowitz, our high court concluded that supervisors’ alleged
retaliatory acts in actively soliciting negative information about the plaintiff
and using the information to criticize her and undermine her job performance
constituted “a pattern of systemic retaliation” which, if proved, would satisfy
the adverse action element of a prima facie case of retaliation. (Yanowitz,
supra, 36 Cal.4th at pp. 1060–1061.)
In Akers, adverse action was shown after a deputy district attorney who
had made a complaint of discrimination received a negative performance
review and a counseling memorandum accusing her of inefficiency,
incompetence, dishonesty, and insufficient productivity—matters that could
be “ ‘career ender[s]’ ”—was told she would never again work in the domestic
violence unit, handling a case type in which she excelled. (Akers, supra, 95
Cal.App.4th at pp. 1449–1450, 1456.)
But in McRae, our colleagues in Division One concluded “a series of
events, each bearing little relationship to the others” did not support a
finding of retaliation. (McRae, supra, 142 Cal.App.4th at p. 390.)
Commenting on two complained-of events responding to an employee’s
unauthorized absence from work, the McRae court concluded that a
supervisor’s memoranda to his files and a letter of instruction placed in the

18
employee’s personnel file did not, standing alone, rise to the level of an
adverse action: they did nothing more than require the plaintiff to remain at
her post, and, even if they might later be cited as part of the reason for an
employment decision, there was no evidence—unlike in Akers—that the
employer was likely to deny employment benefits or privileges to an employee
who received a letter of instruction. (McRae, at p. 392.)
We turn to the facts before us in this case. While it is a close issue, we
bear in mind that we must construe the record liberally and resolve
evidentiary doubts in Plaintiffs’ favor. (Nazir, supra, 178 Cal.App.4th at
p. 254.) Some of the actions of which Plaintiffs complain—including
transferring Mohamed to an equivalent position at the Central Station based
on the Department’s newly enacted policy for romantic relationships, and the
closed investigation of Russell for failing to intervene when officers were
viewing pornography—do not appear on this record to be adverse for
purposes of FEHA, either viewed in isolation or as part of a continuing course
of conduct.
But there is at least some evidence that other actions could affect
Plaintiffs’ opportunities for promotion, and a number of these took place after
Plaintiffs raised their complaints in February 2017. Mohamed was counseled
for failing to salute; two days after she submitted a rebuttal asserting this
allegation was an act of discrimination and retaliation, Lieutenant Gutierrez
ordered Sergeant Montoya to write a memorandum accusing her of
insubordination and refer the matter to Internal Affairs; and the resulting
letter of reprimand for insubordination was placed in her personnel file.
Russell and Mohamed were both subject to investigation several months after
the January 2017 traffic incident; after Mohamed was originally told the
matter had been resolved through mediation, she was nonetheless

19
admonished and retrained, and Russell was investigated by Internal Affairs
and received a disciplinary reprimand from the Chief of Police. The record
contains evidence that personnel files are reviewed when employees seek
promotions, that the personnel files include Internal Affairs reprimands and
adjudicated matters, and that Department and Internal Affairs discipline are
considered in decisions regarding promotion. These facts, we conclude,
suffice to establish a triable issue as to at least the adverse action element of
Plaintiffs’ causes of action for discrimination and retaliation.
III. Discrimination and Retaliation
We next consider whether there is a triable issue of fact as to the other
elements of Plaintiffs’ causes of action for discrimination based on gender or
sexual orientation and for retaliation. At the outset, we note that the City
does not dispute that Plaintiffs’ actions in bringing complaints of
discrimination based on gender and sexual orientation are protected conduct
under FEHA. (See McRae, supra, 142 Cal.App.4th at p. 386 [no dispute that
filing FEHA claims was protected conduct]; Akers, supra, 95 Cal.App.4th at
p. 1453 [complaining of discrimination based on gender and pregnancy
treated as protected].)
Inquiries into Plaintiffs’ Relationship
Plaintiffs’ complaints originated in the questions raised about the
nature of their relationship after Officer Newman objected that Mohamed
was unfairly harsh on him and said he was uncomfortable complaining about
her to Russell. Sergeant Montoya testified that Lieutenant Caturay asked
him if Montoya knew anything about Plaintiffs being in a relationship.
Caturay testified he had been told about a meeting at which the sergeants
discussed Plaintiffs’ relationship. He also testified he and another lieutenant
had talked about rumors that Plaintiffs were a couple, because it “might

20
become a personnel issue which involves the station.” Russell raised
complaints that her supervisors questioned officers and other sergeants about
whether the rumors about a relationship between herself and Mohamed were
true, and that she herself had been “pulled into” closed-door sessions with
three lieutenants at the Mission Station and asked about her relationship
with Mohamed. While we recognize the personal and sensitive nature of
these inquiries and discussions, there is nothing to indicate they were
motivated by animus based on Plaintiffs’ gender or sexual orientation, as
opposed to the potentially relevant fact of a sergeant and an officer at the
station being in an undisclosed romantic relationship.
None of the comments Plaintiffs point to persuade us otherwise.
Lieutenant Caturay testified that during a conversation about the rumors of
Plaintiffs’ relationship, Russell became teary-eyed and said he was only
questioning her because she “look[ed] like a lesbian,” to which he replied he
had not “accused” her of being a lesbian. This phrasing, Plaintiffs argue,
reveals his bias against their sexual orientation. While the verb choice was
unfortunate, Plaintiffs can hardly argue it was inappropriate to inquire into
whether they were in a romantic relationship—which, in fact, they were—in
response to allegations that Russell had a conflict of interest to the extent she
supervised Mohamed.
As to Plaintiffs’ cause of action for retaliation, this investigation into
whether they were a romantic couple does not support that claim for the
additional reason that the investigation preceded their complaints of
discrimination based on gender and sexual orientation.
Mohamed’s Transfer
Plaintiffs also argue that Mohamed’s transfer to the Central Station,
which she viewed as an unfavorable assignment, was the result of retaliation

21
and discriminatory animus. We are not persuaded that the evidence in the
summary judgment record would allow a reasonable factfinder to reach this
conclusion. There is no dispute that the City promulgated a policy on family
and romantic relationships in February 2017, that the Department shortly
thereafter established its own policy, that under the policy it was improper
for one Department employee to supervise another employee with whom he
or she was in a romantic relationship, and that Russell on occasion found
herself supervising Mohamed at the Mission Station. There is nothing to
suggest the Department’s policy was directed toward Plaintiffs. Only one
other couple working at the Department—an opposite-sex couple—found
themselves in the same situation, and there, too, the Department transferred
the lower-ranking employee to a different station. And the Central Station,
although apparently it had fewer recruits than the Mission Station, also
allowed opportunities for Mohamed to continue her work as an FTO.
Nothing in these events is susceptible to an inference that the reasons the
Department gave for the transfer were pretextual for purposes of a cause of
action for discrimination or retaliation.
Plaintiffs point out that in the case of the opposite-sex couple who
reported a relationship, the lower-ranking employee was transferred to an
adjoining station, but Mohamed was not initially transferred to the Bayview
Station, which adjoined the Mission Station and which she would have
preferred to the Central Station. They note Chief Scott’s testimony that if
Mohamed had been transferred to an adjoining training station, the Bayview
Station, Russell might find herself indirectly supervising Mohamed if they
responded to the same call. But the evidence does not show whether the
same concern would arise in the case of the other couple, a captain and a
police officer, and in any case Mohamed’s request to transfer out of the

22
Central Station was later approved and she was moved to the Bayview
Station. Even if Mohamed was initially treated less favorably than the other
couple, these facts do not suggest that the transfer was based on Mohamed’s
gender or sexual orientation or on her previous complaints. Nor does the fact
that Mohamed was assigned a locker at the Central Station next to a relative
of Officer Newman suggest that her transfer was based on improper factors.
Other Investigations and Discipline
Plaintiffs were also subject to investigations and discipline after they
complained in February 2017 of retaliation for Newman’s failing scores in the
FTO program and of discrimination based on their gender and sexual
orientation. While it is a close question, we conclude there is no triable issue
as to whether these actions were the result of discrimination or retaliation for
having complained of discrimination.
The most significant action taken against Russell was the investigation
into the January 23, 2017 traffic accident involving Donofrio, which led to her
being admonished and retrained. The Department proffered evidence of a
legitimate reason for the investigation, that is, that a person involved in the
accident claimed that Russell improperly failed to take her complaint against
Mohamed, a matter that appropriately gave rise to an investigation. There is
also evidence that the Chief of Police had reprimanded other officers
including white male officers for violating the Department’s policy on body-
worn cameras, and that he was unaware of any other officer who had failed to
take a citizen’s complaint under similar circumstances.
Against this showing, Plaintiffs provided evidence they assert calls into
question the basis for the Department’s investigation and discipline, that is,
that Lieutenant Caturay—contrary to normal practice—called Donofrio
personally and asked leading questions to elicit a complaint from her; that in

23
fact Russell explained the process for making a complaint at the scene of the
accident and that Donofrio had declined to do so; and that the policy against
muting body worn cameras, which Russell was found to have violated during
the incident, did not come into effect until after the traffic accident. But,
whether or not Caturay’s actions were suspect, he did not make the decision
to discipline Russell, nor was it he who recommended that Chief Scott impose
discipline. Rather, Chief Scott, who has ultimate responsibility for deciding
whether to impose discipline, testified in a declaration that complaints of
misconduct are sent to Internal Affairs, which conducts an investigation and
presents a recommendation to him. Chief Scott also testified Internal Affairs
recommended that Russell receive a disciplinary reprimand for this incident,
he concurred with the recommendation, and he did not consider as a factor in
considering this or any other incident that either Russell or Mohamed had
filed complaints. And there is no indication Caturay’s statements or
recommendation contributed substantially to Chief Scott’s final decision.
(See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1251
[declining to impute knowledge of plaintiff’s disability to decision maker
where there was no evidence any coworker who knew of illness was a
“ ‘substantial contributor’ ” to decision to discharge him]; Choochagi v.
Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 461 [no triable issue
regarding retaliation where evidence failed to show decision makers “acted as
mere instrumentalities” of employee with retaliatory motive]; cf., Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 110 [ignorance of decision
makers does not “categorically shield the employer from liability if other
substantial contributors to the decision bore the requisite animus”].)
By this account, there is no basis to conclude Russell’s discipline was
the result of her gender, her sexual orientation, or her complaint. No

24
evidence suggests any employee in Internal Affairs who investigated the
incident or recommended discipline knew of, or was influenced by, Plaintiffs’
complaints, or that Internal Affairs employees or Chief Scott acted out of
animus toward Plaintiffs’ gender or sexual orientation. And, as explained in
McRae, a plaintiff’s subjective belief that defendants were lying about their
motivations is not sufficient to show retaliation absent “substantial evidence
from which the jury can find that defendants’ reasons for their actions are
false or pretextual.” (McRae, supra, 142 Cal.App.4th at p. 398.) Plaintiffs
have failed to show a reasonable connection between their complaints and the
formal discipline imposed on Russell.
As for the other investigations of which Russell complains—regarding
Mohamed’s confidential PIP binder, officers’ improper viewing of
pornography, and the alleged HIV comment—these did not result in
discipline, and none supports a claim the Department’s stated reasons for its
conduct were pretextual.
We recognize that these events were distressing to Russell. We
recognize also that Russell had received numerous commendations in the
past and suffered no previous pattern of discipline. But the evidence is
insufficient to support a reasonable inference that animus against Russell’s
gender or sexual orientation motivated anyone responsible for these events,
or that she suffered adverse employment actions in retaliation for conduct
protected under FEHA.
We reach the same conclusion about Mohamed’s claims of
discrimination and retaliation. Sergeant O’Connor of the Field Training
Program documented a counseling session he had with Mohamed in January
2017 to discuss several occasions when she should have intervened more
quickly while training Officer Newman. But even if this counseling session

25
could be seen as an adverse action, Plaintiffs have not provided evidence the
Department was motivated by discriminatory animus when it scrutinized
Mohamed’s training reports after Newman complained of the treatment he
received while assigned to her. (See McRae, supra, 142 Cal.App.4th at p. 392
[letter of instruction that has no effect on terms and conditions of
employment except to require plaintiff to remain at her post not adverse].)
The fact that another officer disarmed the recruit without facing
consequences is a sufficiently different circumstance that it does not support
an inference of discrimination based on gender or sexual orientation. And
this event could not have been in retaliation for Mohamed’s complaint about
Caturay, which she had not yet made.
Plaintiffs also point to disciplinary actions that took place shortly after
Mohamed made her complaint in February 2017. In connection with the
January 2017 traffic accident, Mohamed points to a photograph she contends
shows she was, in fact, wearing her star on her outermost garment during
the call.2 But the report prepared by Mohamed’s partner shows Mohamed
did not provide her star number when Donofrio asked for it, and Russell
acknowledged to the Department that she—Russell—was the one who gave
Mohamed’s name and star number to Donofrio. Even recognizing that
Mohamed was initially told the matter had been resolved through mediation
and was later admonished and retrained, Plaintiffs point to no evidence that
would support an inference that the Department’s stated reasons for this
investigation were pretextual. Nor have they provided evidence that would
support an inference that the Internal Affairs employees who recommended

2Plaintiffs do not explain why the time stamp on the photograph
appears to be several hours after the incident, but the City makes nothing of
this apparent discrepancy.

26
she be admonished and retrained, or Chief Scott who concurred with those
findings, acted out of discriminatory animus or were motivated by her
complaints.
On two occasions after she complained, Mohamed was also accused of
insubordination, once when she failed to salute Lieutenant Gutierrez in
March 2017 and was counseled by Sergeant Montoya, and once when she
questioned Montoya’s order that she write a report in April 2017. The second
event took place two days after Mohamed submitted a rebuttal to Montoya’s
account of the first incident, complaining she was suffering discrimination
and retaliation because of her refusal to take part in nepotism, her
relationship with Russell, and her sexual orientation. Against the City’s
showing that Mohamed was in fact insubordinate, Plaintiffs provided
evidence that other officers did not salute regularly and were not disciplined;
that Mohamed had never saluted in lineup over the previous three years and
had never until then been criticized; that, contrary to Montoya’s account,
Mohamed did not raise her voice during the counseling session; and that she
had never previously had to write a report in similar circumstances.
Despite the proximity in time between Mohamed’s complaints and
these actions, we conclude the evidence is insufficient to show the
investigations were the result of either retaliation for her complaints or
discrimination based on her gender or sexual orientation. We recognize that,
similar to Russell, Mohamed received recognitions and commendations for
outstanding work on several occasions before February 2017, and suffered no
pattern of discipline before that date. But both Gutierrez and Montoya
testified that, as of the time Gutierrez directed Montoya to counsel Mohamed
in April and document his interactions with her, neither knew of Mohamed’s
or Russell’s complaints, and such knowledge is an essential part of proving

27
retaliatory motive. (See Morgan, supra, 88 Cal.App.4th at p. 69.) Gutierrez
and Montoya also testified that neither was involved in conducting the
Internal Affairs investigation of Mohamed nor in the ultimate decision to
impose discipline. And Chief Scott averred that he did not consider Plaintiffs’
discrimination complaints in accepting Internal Affairs’ recommendation to
issue a disciplinary reprimand. Nothing but speculation untethered to
evidence suggests these statements are false.
Our colleagues in Division Two of this court have cautioned that “many
employment cases present issues of intent, and motive, . . . issues not
determinable on paper [and] rarely appropriate for disposition on summary
judgment.” (Nazir, supra, 178 Cal.App.4th at p. 286.) Nevertheless, to
continue with their claims after the City has met its burden to produce
evidence of a legitimate motive for its actions, Plaintiffs must produce
nonspeculative evidence to support a reasonable inference of discriminatory
motive (Foroudi, supra, 57 Cal.App.5th at pp. 1007–1008) or to create a
triable issue of a causal link between the protected activity and the adverse
action (Morgan, supra, 88 Cal.App.4th at p. 70). In McRae, the court rejected
a claim of retaliation where the “allegedly wrongful acts were taken by many
different persons, for different reasons, some of which indisputably had
nothing to do with [the plaintiff’s] protected conduct.” (McRae, supra, 142
Cal.App.4th at p. 391.) The same is true here. The links Plaintiffs seek to
draw between the allegedly adverse actions and either retaliation or
discrimination are too tenuous to support their claims.
We conclude, therefore, that Plaintiffs’ causes of action for
discrimination based on gender or sexual orientation and for retaliation fail.
In reaching this conclusion, we acknowledge there is evidence—as when
Montoya reportedly said he would “win the war”—that caused Plaintiffs to

28
believe they were being targeted unfairly for refusing to give special
treatment to a legacy recruit. But, however reasonable these concerns may
have been, they have not shown the requisite connection between adverse
employment actions and conduct protected by FEHA.
IV. Harassment
Plaintiffs’ third cause of action is for failure to maintain an
environment free of harassment and discrimination. This cause of action
requires a showing of actual harassment or discrimination under FEHA.
(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925,
fn. 4; Gov. Code, § 12940, subd. (k); Cal. Code Regs., tit. 2, § 11023,
subd. (a)(2).) We have already concluded Plaintiffs’ claim for discrimination
fails.
To establish a prima facie case of harassment, an employee must show
that “(1) she is a member of a protected class; (2) she was subjected to
unwelcome harassment; (3) the harassment was based on her protected
status; (4) the harassment unreasonably interfered with her work
performance by creating an intimidating, hostile, or offensive work
environment; and (5) defendants are liable for the harassment.” (Ortiz,
supra, 37 Cal.App.5th at p. 581; see Thompson, supra, 186 Cal.App.4th at
p. 876.) On this last point, defendants are liable “if the entity, or its agents or
supervisors, knows or should have known of this conduct and fails to take
immediate and appropriate corrective action.” (Gov. Code, §12940, subd.
(j)(1).)
A showing that the harassment created a hostile work environment
requires a showing “ ‘that the defendant’s conduct would have interfered with
a reasonable employee’s work performance and would have seriously affected
the psychological well-being of a reasonable employee.’ ” (Aguilar v. Avis

29
Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130–131; accord, Galvan v.
Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 564–565; see also Gov.
Code, § 12923, subds. (a) & (b).) 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.’ ” (Aguilar, at
p. 131.) Put another way, “[t]he law prohibiting harassment is violated
‘[w]hen the workplace is permeated with discriminatory intimation, ridicule
and insult that is “ ‘sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.’ ” ’ ”
(Nazir, supra, 178 Cal.App.4th at p. 263.)
On these standards, the City has met its burden to show Plaintiffs
cannot establish they were subjected to actionable harassment. Russell
reported only isolated comments arguably referring to sexual orientation or
gender identity—e.g., a lieutenant’s comment about “a finger in the d[y]ke,”
and another lieutenant referring to a transgender sergeant by the wrong
pronoun. Mohamed also reported hearing other officers express negative
views about gays and lesbians, but there is no evidence she brought this
conduct to the attention of a supervisor. (See Gov. Code, §12940, subd. (j)(1).)
All of these comments are offensive, hurtful, and entirely inappropriate in the
workplace. But there is no evidence that the comments were directed against
Russell or Mohamed, that they were pervasive or intimidating, or that they
unreasonably interfered with Russell’s or Mohamed’s work performance. As
to the screen shot of Newman’s Facebook page containing a homophobic slur,
there is no indication Newman posted the offensive language himself or
displayed it to Russell or anyone else in the Department; rather, another
sergeant, a friend of Russell’s and a board member of the Department’s Pride
Alliance, found it while “snooping” and showed it to Russell.

30
 We do not ignore the context of this case—that is, the evidence that
after Officer Newman complained about Mohamed and the conflict posed by
Russell’s relationship with her, members of the Department raised questions
about the nature of their relationship. It is not surprising that Plaintiffs
found these inquiries into their personal lives, and into matters they had
sought to keep private, distressing. But we have already concluded the
Department could reasonably investigate the suggestion of an undisclosed
conflict of interest that had been raised. And the remaining comments do not
rise to the level of actionable harassment.
We recognize the Legislature’s admonishment that “[h]arassment cases
are rarely appropriate for disposition on summary judgment.” (Gov. Code,
§ 12923, subd. (e); see Nazir, supra, 178 Cal.App.4th at p. 286.) But rarely is
not the same as never, and here the alleged harassing acts are sufficiently
isolated and sporadic that the trial court correctly concluded this claim was
subject to summary judgment.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties are to
bear their own costs on appeal.

TUCHER, J.

WE CONCUR:

POLLAK, P. J.
BROWN, J.

Russell et al. v. City & County of San Francisco (A159579)

31