Filed/ 5/23/22 Robinson v. Compton Unified School Dist. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ERIC ROBINSON, B310764
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC714394)
v.
COMPTON UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Law Offices of Pelayes & Yu, Tristan G. Pelayes and
Tom Yu for Plaintiff and Appellant.
Olivarez Madruga Lemieux O’Neill, Thomas M. Madruga
and Edward B. Kang for Defendant and Respondent.
____________________________
Eric Robinson, a police officer for the Compton School
Police Department, filed two grievances with the Personnel
Commission of the Compton Unified School District (the District)
after the police chief selected another candidate for promotion to
school police sergeant. When he still was not promoted after
filing these grievances, Robinson filed a whistleblower lawsuit
alleging retaliation in violation of Labor Code section 1102.5
(section 1102.5). That statute prohibits an employer from
retaliating against an employee for disclosing information
concerning a violation of “state or federal statute, or a violation of
or noncompliance with a local, state, or federal rule or
regulation . . . .” (§ 1102.5, subd. (b).)
We affirm summary judgment in favor of the District for
two independent reasons. First, Robinson’s failure to file a
government claim prior to filing his lawsuit bars the
whistleblower claim before us. Second, taking all inferences in
favor of Robinson and interpreting his operative pleading
liberally, we conclude the trial court did not err in granting
summary judgment of Robinson’s whistleblower claim. Assuming
arguendo that Robinson alleged he engaged in protected activity
when he filed grievances identifying violations of the District’s
Personnel Commission’s Classified Rules and Regulations, the
undisputed evidence demonstrates as a matter of law that the
protected activity was not a contributing factor to his failure to
promote to the sergeant position. To the extent Robinson bases
his whistleblower claim on a complaint he made directly to the
police chief, he not only has abandoned that claim, but also he
failed to support it with evidence. We affirm the judgment in
favor of the District.
2
BACKGROUND
1. Events preceding Robinson’s lawsuit
According to Robinson, as of July 2018, he worked for the
Compton School Police Department for 21 years. The parties
agree that the District has a merit system of employment, i.e., a
civil service system covering classified employees including
Robinson.1 Although the parties agree Robinson was a classified
employee, they do not further define that term. The parties,
however, agree that as a classified employee, Robinson’s
employment was governed by the District’s Personnel
Commission’s Classified Rules and Regulations (Rules and
Regulations).
In May 2018, the District published a job bulletin
advertising an opening for a school police sergeant. Robinson
applied for the position. On June 14, 2018, Robinson participated
in an oral Qualifications Appraisal Interview (QAI) and scored
the highest of all applicants. On July 17, 2018, Robinson
participated in a second oral interview, which Robinson describes
as an improper second QAI but the District describes as an oral
departmental selection interview.
According to Robinson’s opposition to summary judgment,
William Wu, the District’s chief of police, and Captain Thomas
McFadden participated in this second interview along with a
third unidentified individual. According to Robinson, the second
1 We note that in his separate statement in opposition to
summary judgment, Robinson, however, asserts that the “civil
service commission system . . . is not at issue before this Court
in . . . Plaintiff’s allegations . . . in his Second Amended
Complaint . . . .”
3
interview should have been a “final certification meeting” with
the chief. Robinson believed that the chief should have had a
conversation with Robinson to discuss the chief’s goals and how
Robinson could contribute to those goals. Robinson believed
“based on past practices,” that the meeting with the chief “was to
have been an informal one-on-one Chief’s interview” in which the
chief would “express the expectations and goals to the soon-to-be-
promoted Sergeant.” Prior to the second interview, Robinson told
Chief Wu that the only permitted QAI had already occurred and
that he was first on the eligibility list. Robinson testified in his
deposition that the chief was not required to select the person
with the highest score but that selecting the person with the
highest score was consistent with “past practices.” As we explain
in our Discussion, on appeal, Robinson no longer contends the
District was not permitted to hold a second interview.
In his declaration, Chief Wu described the purpose of the
second interview as an opportunity for “the Chief of Police to
interview the three highest scoring candidates in the QAI to
determine which of the three candidates is the best fit for the
position.” Chief Wu criticized Robinson’s understanding that “the
initial QAI interview was the only interview necessary under the
Rules and Regulations and that the second oral interview was
merely a congratulatory interview to the highest scoring
applicant” and explained that Robinson’s understanding was
“wrong.”
It is undisputed that on July 17, 2018, Chief Wu selected
another candidate to fill the sergeant position. Robinson so
concedes in his appellate briefing: “Chief Wu had already made
his decision to promote [another candidate] immediately
following the second interview.”
4
On July 18, 2018, Robinson filed a complaint with the
District’s Personnel Commission alleging that the July 17, 2018
interview violated the Rules and Regulations. Robinson quoted
rule 40.200.8 (provided in its entirety in the next section), and
criticized Chief Wu for asking the same questions during the
second interview as posed in the initial interview. Robinson
believed this was improper because “ ‘Wu is not employed by the
Personnel Commission and did not possess any testing
authority.’ ”
According to the District, it decided to hold another
interview after learning that the department interview included
the same questions as the QAI. According to Robinson, this third
interview “was not a ‘misunderstanding’ but rather an
intentional act to violate” the Rules and Regulations.
Robinson then participated in a third interview on July 23,
2018. According to Robinson, Captain McFadden also
participated in that interview and his participation was
unauthorized under rule 40.200.13, quoted below.
Also on July 23, 2018, Robinson amended his prior
grievance filed with the District’s Personnel Commission. His
amended grievance did not repeat the alleged violations of the
District’s Rules and Regulations. Instead, Robinson alleged
discrimination as well as violation of several state statutes
unrelated to the current appeal.2
2 Specifically, Robinson referenced Education Code
sections 45308, 45309, 45298, governing layoffs and
reinstatement after a layoff.
5
2. The pertinent District Rules and Regulations
As noted above, the District has Rules and Regulations,
which Robinson contends either the District violated or he
reasonably believed the District violated. Robinson’s operative
complaint references rule 40.200.8, and on appeal Robinson relies
on that rule, as well as rule 40.200.13.
Rule 40.200.8 is entitled “Examination Procedures” and
provides:
“A. Classified employees in any written test must take the
test on the prescribed date unless in military service during a
national emergency declared by the President or during any war
in which the United States is engaged.
“B. Copies of the questions in a test shall not be made by
competitors or other unauthorized persons.
“C. Where written tests are required, they shall be so
managed that none of the test papers will disclose the name of
any competitor until all papers of all competitors in a given
examination shall have been marked and rated.
“D. Any competitor in any examination who places any
identifying mark upon his test papers . . . or makes any attempt
to disclose to others the identity of his papers prior to the
completion of the examination shall be disqualified.
“E. The Commission may designate examinations for
specified classes as continuous examinations. When so
designated, the examination shall be administered as applicants
are available, and the areas of the service indicate, and
applicants shall be accepted every working day. Procedures for
review of written tests shall be suspended.
6
“F. The proceedings of all oral examinations shall be
electronically recorded. Such tapes shall be retained 90 days
following establishment of an eligibility list.”
Rule 40.200.13 is entitled “Qualifications Appraisal
Interview: Oral Examination” and provides:
“A. If an examination includes a Qualifications Appraisal
Interview (QAI), The Qualifications Appraisal Interview Board
shall consist of at least two members.
“B. Unless specifically directed to evaluate the candidates’
technical knowledge and skills, the oral examination panel shall
confine itself to evaluating general fitness for employment in the
class.
“C. When the oral panel is directed to evaluate technical
knowledge and skills, at least two members of the panel shall be
technically qualified in the specified occupational area.
“D. A district employee may serve on an oral examination
board if she/he is not the first or second level of supervision over
a vacant position in the class for which the examination is held.
[According to Robinson, Captain McFadden was the second level
supervisor over a sergeant.]
“E. Members of the governing board or Personnel
Commission shall not serve on an oral examination board.
“F. All oral examinations for regular classified positions
shall be electronically tape recorded. In no case will an oral
examination panel be provided with confidential references on
employees of the District who are competing in promotional
examinations. Scores achieved by the candidates on other parts
of the examination shall not be made available to the oral
panelists.
7
“G. A candidate may review the QAI rating within five
work-days following the mailing of notification of examination
results. The purpose of the review is to counsel a candidate
relative to his/her general QAI performance. Test material which
has been rented, leased, or obtained under a contract where the
terms of such rental or leasing, or contract prohibit such review
or inspection, shall not be subject to review or inspection by a
candidate.
“H. If a candidate wishes to protest the QAI rating, she/he
must submit the written protest to the Personnel Director during
the five work-day review period. Such protest shall state
specifically the parts of the QAI protested, or wherein errors are
alleged to have occurred, citing authorities or references to
support such protest, and stating the remedy to which the
candidate believes she/he is entitled. The Personnel Director
shall review and answer the QAI protests and shall make any
necessary corrections. Such corrections shall be applied
uniformly to all candidates. Candidates who have protested shall
be notified in writing of the disposition of their protests.”
“I. If the protest is not sustained, the candidate may
appeal to the Personnel Commission within five work days after
notice of the decision of the Personnel Director was mailed to the
candidate. Such appeal to the Commission shall be in writing
and shall be based upon a charge that the rejection constitutes a
violation of law, misapplication of the Rules and Regulations of
the Classified Service, or that the reasons for rejection are
inconsistent with the facts; the facts supporting such a charge
shall be clearly set forth in the appeal and shall include the
remedy sought by the candidate. Upon this written appeal to the
Personnel Commission, a candidate may request to review the
8
qualifications appraisal interview paperwork and the recording of
his/her interview. Such request shall be granted as soon as
practicable and the review shall be conducted by a Personnel
Commission staff member. The Commission’s decision shall be
transmitted in[ ] writing to all concerned and shall be final. No
eligibility list will be approved by the Personnel Commission, or if
the eligibility list has already been approved, no appointments
will be made from the eligibility list until the Personnel
Commission has ruled on the appeal of the employee.”
3. Robinson’s lawsuit
On July 23, 2018, Robinson filed his original complaint. On
September 10, 2018, he filed a first amended complaint. On
November 28, 2018, Robinson filed a second amended complaint,
the operative pleading. The second amended complaint alleges a
single cause of action for violation of section 1102.5.
In the second amended complaint, Robinson alleged that, in
early June 2018, he applied for a promotion to police sergeant.
On June 14, 2018, Robinson participated in the QAI. Robinson
received the highest score of all applicants and was placed on the
promotion eligibility list.
Robinson alleged that on July 13, 2018, Chief Wu told
plaintiff to “ ‘study up’ for the July 17, 2018 meeting” and
Robinson “protested.” Robinson told Wu the only permissible
QAI already had occurred and Robinson received the highest
score.
Robinson alleged that the District improperly held a second
QAI on July 17, 2018 which, he alleged “is against the Rules and
Regulation[s] of the Personnel Commission. . . . Plaintiff
appeared before an unauthorized panel that consisted of:
Captain Thomas McFadden, Wu, and an unknown third person.
9
Plaintiff protested the fact that Wu is not employed by the
Personnel Commission and did not possess any testing authority.
More importantly, Wu should not have been in possession of the
questions . . . which Wu used in the [QAI].”
Robinson further alleged: “On July 18, 2018, . . . Plaintiff
filed a grievance with the Personnel Commission outlining the
specific violations of the [District’s] Classified Rules and
Regulation[s], under 40.200.8 . . . .” About an hour later,
Robinson received an e-mail indicating that the District did not
select him as police sergeant.
Robinson also alleged that the District then held another
QAI on July 23, 2018 and “Plaintiff filed another grievance with
the Personnel Commission, protesting the unauthorized manner
in which the [QAI] was conducted.” According to Robinson, the
third QAI was conducted by “an unauthorized panel that
consisted of: Captain Thomas McFadden, Wu, and another
unknown third party [who was different from the unknown third
party that participated in the prior interview] . . . .” Later that
day, plaintiff received an e-mail indicating he was not selected for
the position.
According to the second amended complaint, Robinson
“engaged in legally protected activities . . . by disclosing to the
CUSD [District’s] Personnel Commission . . . information which
Plaintiff had reasonable cause to believe disclosed violations of
the CUSD Classified Rules and Regulations pertaining to the
Examination Procedures under 40.200.8. Plaintiff is informed
and believes that the reason he was not promoted to Police
Sergeant was due to the reporting and protesting of the Police
Sergeant examination procedure to Wu and the Personnel
Commission as an act of retaliation for Plaintiff’s actions . . . .”
10
4. Summary judgment
The District moved for summary judgment on multiple
grounds, including that as a matter of law, Robinson did not
engage in protected activity. The District also argued that
Robinson could not establish a causal link between the alleged
protected activity and retaliation.
Robinson countered that he engaged in protected activities
“when reporting rule violations.” (Capitalization & boldface
omitted.) Robinson also argued that he engaged in protected
activity when he disclosed reasonably based suspicions of rule
violations. “Plaintiff had a belief that his superior was violating
the Rules and Regs. of the [District], a public entity and a law
enforcement agency regarding the selection and promotion of an
officer to a supervisory position.” Robinson further argued that
the close temporal proximity between his protected activity and
the alleged retaliatory conduct showed a prima facie case of
causation.
The trial court found that Robinson did not engage in a
protected activity and relied on that ground to grant summary
judgment.
DISCUSSION
We review the judgment, not the trial court’s reasons for
the judgment. (Scheer v. Regents of University of California
(2022) 76 Cal.App.5th 904, 913.) In performing our de novo
review of the summary judgment, we must review the evidence in
the light most favorable to Robinson, the party opposing
summary judgment. (Ibid.) Summary judgment is proper if the
record shows no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
11
(Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, 1205.)
A defendant is entitled to summary judgment if the plaintiff
cannot establish one of the elements of a cause of action. (Ibid.)
It is well established that the “materiality of a disputed fact is
measured by the pleadings [citations], which ‘set the boundaries
of the issues to be resolved at summary judgment.’ [Citations.]”
(Conroy v. Regents of University of California (2009) 45 Cal.4th
1244, 1250.)
A. Robinson’s Failure to File His Government Claim
Before Filing His Complaint is Fatal to His
Whistleblower Cause of Action
The Government Claims Act (Gov. Code, § 810 et seq.)
establishes conditions for filing a lawsuit seeking money damages
against a public entity, including whistleblowing claims.
(Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.)
The prior filing of a government claim is an element of a
plaintiff’s whistleblower cause of action.3 (Willis, at p. 1119.)
Robinson filed his complaint on July 23, 2018. He filed his
government claim only on August 28, 2018. Robinson
acknowledges that he “filed the Complaint on July 23, 2018,
which is prior to the presentation of the government claim.”
Government Code section 945.4 precludes a “suit for money
or damages . . . against a public entity” absent a prior
presentation of the claim to the public entity. (See Gov. Code,
§ 945.4; see also State of California v. Superior Court (2004)
32 Cal.4th 1234, 1237.) The purpose of this statute is to afford
the public entity an opportunity to investigate and settle the
3 Government Code section 905 sets forth exceptions to
this general rule, none of which is relevant here.
12
claim without incurring litigation costs. (J.J. v. County of San
Diego (2014) 223 Cal.App.4th 1214, 1219.) It is undisputed that
Robinson did not file his government claim before filing his
original complaint. That failure bars him the whistleblower
claim before us. (Le Mere v. Los Angeles Unified School Dist.
(2019) 35 Cal.App.5th 237, 246–247.)
Robinson argues he substantially complied with the
Government Claim Act. He did not. Instead, he filed his lawsuit
before filing his claim with the District. At oral argument, he
mistakenly relies on the filing of his first amended complaint on
September 10, 2018 in asserting his filing of his government
claim on August 28, 2018 was substantial compliance. That
argument ignores the impact of failing to file a government claim
before bringing suit: “ ‘Timely claim presentation is not merely a
procedural requirement, but is a condition precedent to the
claimant’s ability to maintain an action against the public entity.
[Citation.] “Only after the public entity’s board has acted upon or
is deemed to have rejected the claim may the injured person
bring a lawsuit alleging a cause of action in tort against the
public entity.” [Citation.]’ ” (J.J. v. County of San Diego, supra,
223 Cal.App.4th at p. 1219.) Here, the District had no
opportunity to accept or reject Robinson’s whistleblowing claim
because Robinson filed it only after he initiated his lawsuit.
Robinson’s reliance on his amended complaint further ignores the
fundamental purpose of filing a government claim before
initiating a lawsuit—to allow the public entity to evaluate and
potentially settle the claim without incurring litigation costs.
In sum, because Robinson did not file a claim with the
District prior to seeking redress in the court, his lawsuit is
barred.
13
B. The Trial Court Did Not Err in Granting Summary
Judgment Because Robinson Cannot Establish the
Elements of His Whistleblowing Cause of Action
Section 1102.5 subdivision (b) provides: “An employer, or
any person acting on behalf of the employer, shall not retaliate
against an employee for disclosing information, or because the
employer believes that the employee disclosed or may disclose
information, to a government or law enforcement agency, to a
person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the
violation or noncompliance, or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s job duties.”
The purpose of section 1102.5 is to encourage workplace
whistleblowers to report unlawful acts without fearing
retaliation. (Lawson v. PPG Architectural Finishes, Inc. (2022)
12 Cal.5th 703, 709 (Lawson).) To demonstrate a claim of
retaliation an employee must demonstrate “ ‘by a preponderance
of the evidence’ that the employee’s protected whistleblowing was
a ‘contributing factor’ to an adverse employment action.”
(Lawson, at p. 712; see also Scheer v. Regents, supra,
76 Cal.App.5th at p. 914.) “Then, once the employee has made
that necessary threshold showing, the employer bears ‘the
burden of proof to demonstrate by clear and convincing evidence’
that the alleged adverse employment action would have occurred
‘for legitimate, independent reasons’ even if the employee had not
14
engaged in protected whistleblowing activities.” (Lawson,
at p. 712.)
As Robinson contends, Lawson recently held that the
framework established in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas Corp.), does not apply
to a cause of action under section 1102.5.4 (Lawson, supra,
12 Cal.5th at p. 712.) Also, as Lawson explains, a plaintiff
asserting a cause of action under section 1102.5 is not required to
show retaliatory intent, but instead, is required only to show that
the retaliation was a contributing factor to the adverse
employment decision. (Lawson, at pp. 713–714.)
A defendant moving for summary judgment must show
either that “one or more elements of the plaintiff’s cause of action
cannot be established or show there is a complete defense to the
plaintiff’s cause of action.” (Doe v. Good Samaritan Hospital
(2018) 23 Cal.App.5th 653, 661.) Here, the District demonstrated
that Robinson cannot establish essential elements of his
whistleblowing cause of action.
C. Robinson’s Grievances Did Not Contribute to the
Adverse Employment Action
In his operative pleading, Robinson alleged he engaged in
protected activities “by disclosing to the CUSD [District’s]
4 Under McDonnell Douglas Corp., “[T]he employee must
establish a prima facie case of unlawful discrimination or
retaliation. [Citation.] Next, the employer bears the burden of
articulating a legitimate reason for taking the challenged adverse
employment action. [Citation.] Finally, the burden shifts back to
the employee to demonstrate that the employer’s proffered
legitimate reason is a pretext for discrimination or retaliation.”
(Lawson, supra, 12 Cal.5th at p. 708.)
15
Personnel Commission . . . information which Plaintiff had
reasonable cause to believe disclosed violations of the CUSD
Classified Rules and Regulations pertaining to the Examination
Procedures under 40.200.8. Plaintiff is informed and believes
that the reason he was not promoted to Police Sergeant was due
to the reporting and protesting of the Police Sergeant
examination procedure to Wu and the Personnel Commission as
an act of retaliation for Plaintiff’s actions and activities.”
On appeal, Robinson argues that the District violated
rule 40.200.8 because Chief Wu did not “ ‘possess any testing
authority’ ” and should not have had the examination questions.
Robinson contends that the second and third QAI panels “were
unauthorized” specifically because Captain McFadden and the
chief should not have been included. Robinson also argues that
he reasonably believed Wu was unauthorized based on his
reasonable belief that rule 40.200.8 covers oral examinations.
Even though he did not allege it in the operative complaint,
Robinson contends on appeal that including Captain McFadden
in the second and third interviews violated rule 40.200.13,
part D. In his reply brief on appeal, Robinson, for the first time,
cites to several sections of the Education Code, one of which is
arguably relevant—section 45273.5 Section 45273 governs
5 Education Code section 45273 provides:
“Examinations shall be administered objectively, and shall
consist of test parts that relate to job performance.
“For classes of positions deemed by the commission to
require an oral examination, the oral examination board shall
include at least two members. Where a structured objective
examination is to be administered to the entire field of
candidates, a single member oral examination board may be
16
examination and provides in pertinent part: “A district employee
may serve on an oral examination board if he or she is not at the
first or second level of supervision over a vacant position in the
class for which the examination is held.”
utilized. A ‘structured objective examination’ means, for this
purpose, an examination for which the examiner exercises no
discretion in the selection of the questions or in the evaluation of
the answers.
“Unless specifically directed to evaluate candidates’
technical knowledge and skills, the oral examination board shall
confine itself to evaluating general fitness for employment in the
class. When the oral examination board is directed to evaluate
technical knowledge and skills, at least two members of the board
shall be technically qualified in the specified occupational area.
Members of the governing board or personnel commission shall
not serve on an oral examination board. A district employee may
serve on an oral examination board if he or she is not at the first
or second level of supervision over a vacant position in the class
for which the examination is held.
“The personnel commission shall provide for the
proceedings of all oral examinations to be electronically recorded.
In no case will an oral examination board be provided with
confidential references on employees of the district who are
competing in promotional examinations. Scores achieved by the
candidate on other parts of the examination shall not be made
available to the oral examination board.”
Robinson also cites to Education Code section 45274, which
governs the retention and availability of examination records
and is not relevant to this case. He cites to Education Code
sections 45240 (permitting a school district to appoint a
personnel commission) 45260 (permitting a commission to
prescribe rules) and 45261 (describing the subject of rules), but
does not argue that the District violated any of those provisions.
17
Even though Robinson improperly raises new issues in his
opening and reply briefs, we assume (for purposes of this appeal
only) that Robinson made these allegations in his operative
complaint.6
As set forth above, our Supreme Court in Lawson described
an employee’s burden in a section 1102.5 retaliation claim: To
demonstrate a claim of retaliation an employee must
demonstrate “ ‘by a preponderance of the evidence’ that the
employee’s protected whistleblowing was a ‘contributing factor’ to
an adverse employment action.” (Lawson, supra, 12 Cal.5th at
p. 712.) Here, no evidence supports the inference that Robinson’s
protected whistleblowing (whether reporting actual or perceived
violations) was a contributing factor to an adverse employment
action.
It is undisputed Chief Wu selected another person as
sergeant on July 17, 2018. In his opening brief, Robinson asserts,
“Chief Wu had already made his decision to promote [another
6 It is well established that the “pleadings play a key role
in a summary judgment motion. ‘ “The function of the pleadings
in a motion for summary judgment is to delimit the scope of the
issues . . . ” ’ and to frame ‘the outer measure of materiality in a
summary judgment proceeding.’ [Citation.]” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493.) Moreover,
Robinson cannot raise the issue for the first time in his reply
brief. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.)
Robinson also mischaracterizes the record. In his separate
statement opposing summary judgment, Robinson stated that the
state statutes were not relevant to this case, the exact opposite of
the argument in his reply brief. Specifically, in opposition to
summary judgment, Robinson claimed that Education Code
section 45240 et seq. is “not at issue before this Court . . . .”
18
candidate] immediately following the second interview.”7 The
second interview took place July 17, 2018. Robinson filed a
grievance on July 18, 2018 and an amended grievance on July 23,
2018, the claimed protected whistleblowing activity. The
challenged adverse employment action occurred before Robinson’s
alleged whistleblowing activity. This is not a case in which
Robinson’s whistleblowing activity was a contributing factor to
his failure to promote—the adverse employment decision.
Instead, Robinson blew the whistle because the District did not
promote him. Accordingly, the trial court did not err in granting
summary judgment in favor of the District.
D. Robinson’s Discussion With Wu Was Not Protected
Conduct
Prior to Chief Wu’s selection of another candidate as
sergeant, Robinson told Chief Wu that the only permitted QAI
had already occurred and he was first on the eligibility list. In
his second amended complaint, Robinson included “protesting of
the Police Sergeant examination procedure to Wu” as a basis for
his section 1102.5 cause of action.
We disagree that this “protest” rescues Robinson’s
whistleblower claim. First, Robinson abandoned the contention
on appeal, and, second, it fails on its merits. On appeal, Robinson
7 At oral argument, Robinson appears to have retreated
from this representation in his appellate briefing. We
nevertheless rely on his appellate briefs, which are “ ‘reliable
indications of a party’s position on the facts as well as the law,
and a reviewing court may make use of statements therein as
admissions against the party. [Citations.]’ [Citations.]”
(Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn.2.)
19
concedes that his challenge to “the second round of interviews”
was “not correct.” Robinson now acknowledges that “a second
job-performance interview is required.” Robinson’s concession on
appeal that he erred in complaining to Chief Wu that only one
QAI was permissible is thus fatal to his whistleblowing claim
based on that complaint.
Even if Robinson did not abandon this challenge, it is not
well-founded. Robinson does not allege he disclosed to Chief Wu
in advance of the second interview any real or perceived
“violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or
regulation . . . .” (§ 1102.5, subd. (b).) Robinson’s alleged protest
to Chief Wu identified no specific rule, regulation, or statute that
was violated. Further, Robinson cites no evidence to support the
conclusion that he had “reasonable cause to believe that the
information [provided to Wu] discloses a violation of state or
federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation . . . .” (Ibid.) Additionally, in
his deposition, Robinson admitted that the chief was not required
to select the candidate with the highest score in the QAI, the
ultimate basis for Robinson’s complaint to the chief prior to
Robinson’s second interview. In short, interpreting the evidence
in the light most favorable to Robinson, he identifies no evidence
supporting the inference that his statements to Chief Wu prior to
the second interview constituted protected conduct under section
1102.5. (See Carter v. Escondido Union High School Dist. (2007)
148 Cal.App.4th 922, 933 [disclosing that coach had
recommended a protein shake to a student was not protected
activity because it did not disclose a violation of state or federal
statute or regulation].)
20
DISPOSITION
The judgment is affirmed. The Compton Unified School
District shall have its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
MORI, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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