Gordon v. City of Los Angeles CA2/1 ( 2016 )

Filed 2/11/16 Gordon v. City of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JAMES GORDON, B256995
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC 491800)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard
L. Fruin, Jr., Judge. Reversed.
Law Offices of Gregory W. Smith, Gregory W. Smith; Christopher Brizzolara;
Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz for Plaintiff and
Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Philip Reznik and
Christine T. Heoffner for Defendant and Respondent.
_________________________________
Los Angeles Police Department (LAPD) Sergeant II James Gordon sued the City
of Los Angeles (City) for alleged adverse employment action in retaliation for his
assistance with a California Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.) action filed by an LAPD detective. The trial court granted City’s motion
for summary judgment, and Gordon timely appealed. We conclude triable issues of
material fact exist with respect to both grounds upon which the trial court granted
summary judgment and reverse, without prejudice to future motions.
BACKGROUND
1. Allegations of the operative complaint
Gordon’s complaint, filed September 10, 2012, alleges that in late 2010 he was
appointed to the positions of Acting Commander’s Aide for Commander Blake Chow and
Acting Officer in Charge (OIC) of the Counter-Terrorism/Special Operations Bureau
(CTSOB) Liaison Section. The latter position had been held by Detective Mike Kozak
and became vacant when he went on military leave. Chow was one of the commanding
officers of the CTSOB.
The complaint alleges that around February of 2011, Chow directed Gordon “to
locate a supervisor from one of the five LAPD Division Commands that had the
necessary skills to serve as the OIC of the CTSOB.” Based upon his research, Gordon
recommended Detective II Dan Garcia for the position. At Chow’s request, Garcia was
notified and an interview with Chow was scheduled. Chow thereafter ordered Gordon to
cancel the interview and find someone else to fill the position. Chow would not explain
his reasons to Gordon and told Gordon to speak to Deputy Chief Michael Downing, who
told Gordon they were not going to select Garcia.
The complaint further alleges that, as part of his duties as Acting Commander’s
Aide, Gordon subsequently reviewed an adjudicated personnel complaint investigation in
which Garcia complained of discrimination and retaliation in violation of FEHA by
command staff and several supervisors at the Major Crimes Division (MCD). Gordon
“was and is aware that when an employee files such actions against LAPD command
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staff or supervisors,” command staff retaliates. He therefore “believed that Chow and
Downing made their decision not to select Garcia for the position as the OIC of the
CTSOB Liaison Section as a result of Garcia having filed such complaint(s) against
MCD command and supervisors.” Gordon informed Garcia of his belief, and Garcia told
Gordon he was pursuing legal action against City for retaliation and discrimination.
Thereafter, Gordon “was identified as a witness in, interviewed by Defendants in
connection with, and otherwise participated in the prosecution of” Garcia’s action against
City, including preparing a declaration in support of Garcia on or about August 6, 2011.
The complaint alleges that on August 16, 2011, Chow angrily confronted Gordon
about speaking to Garcia and said “‘now Garcia was suing’” Chow. Soon thereafter, the
deputy city attorney who prepared a summary judgment motion against Garcia phoned
Gordon and asked to meet with him “to discuss matters regarding Garcia.” Soon
thereafter, Gordon was summoned for drug testing, and when he returned, he discovered
he had been “removed from Chow’s proxy and locked out of Chow’s calendar and
email.” On August 17, 2011, Chow and another officer interviewed Gordon and other
candidates to fill the OIC position. Chow was curt and, “in violation of LAPD policies,
practices, and procedures,” asked Gordon about a 13-year-old complaint, even though
“Chow was already well aware of the facts, events, and circumstances surrounding the
complaint” because he had been one of Gordon’s watch commanders. Gordon was not
selected for the position even though he was the most qualified applicant. Chow also
removed Gordon as his aide, saying Gordon could not be trusted because of his
involvement with Garcia.
The complaint alleges that thereafter Gordon was stripped of his supervisory
duties; he was assigned to answer telephones, perform menial tasks, and write
documents; and he was ostracized by LAPD command staff and excluded from CTSOB
operational issues and matters. He was subsequently moved to the Major Crimes
Analysis section, where he conducted assessments at LAX that would normally be
assigned to an officer of lower rank.
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The complaint alleges the retaliatory conduct caused Gordon to lose income, will
hinder him from being promoted in rank or assigned to “coveted positions,” and will
impair his future earnings.
2. The City’s summary judgment motion
City filed a motion for summary judgment or, alternatively, summary adjudication
of issues. City set forth four theories regarding summary judgment: Gordon did not
engage in protected activity, he was not subjected to any adverse employment action, he
cannot establish a causal connection between his preparation of a declaration for Garcia
and any cognizable adverse employment action, and City had legitimate, nonretaliatory
reasons for the employment actions of which Gordon complains.1
The trial court granted summary judgment for City on the grounds (1) Gordon did
not suffer any adverse employment action and (2) City established a nonretaliatory,
legitimate reason for not selecting Gordon for the OIC position and Gordon failed to
provide substantial evidence that City’s reason was a pretext for retaliation. With respect
to the first ground, the trial court stated that Gordon had not alleged or provided evidence
that his removal from being Chow’s aide caused him any economic loss or resulted in a
change in his rank, pay grade, benefits, or promotional opportunities. The court then
reasoned that because Gordon’s removal as aide was not actionable, it provided no
“secondary support” for his claim that not selecting him as OIC was retaliatory. With
respect to the second ground, the court cited Downing’s testimony that he selected
Sergeant II Mike Seguin for the OIC position because he knew him, liked his background
in community outreach, and thought he was a good fit, whereas Downing had a concern
about Gordon. The court rejected Gordon’s argument that Chow’s involvement in the
interviews and in reporting results of the interviews to Downing tainted the process,
although the court accepted that Chow “had issues with Gordon.”
1
City’s “issues” for summary adjudication were (1) City was entitled to summary
judgment and (2) Gordon failed to exhaust administrative remedies with respect to events
subsequent to September 16, 2011.
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DISCUSSION
1. Principles regarding summary judgment motions
A “party moving for summary judgment bears the burden of persuasion that there
is no triable issue of material fact and that he [or she] is entitled to judgment as a matter
of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue
of material fact exists if “the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion.” (Ibid.) The moving party
also bears the initial burden of producing evidence “to make a prima facie showing of the
nonexistence of any triable issue of material fact.” (Ibid.)
A defendant moving for summary judgment must show, with respect to each of
plaintiff’s causes of action, that either one or more elements of the cause of action cannot
be established or there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) Upon such a showing, the burden shifts to the plaintiff to prove the
existence of a triable issue of material fact regarding the element or defense addressed by
the defendant’s motion. (Ibid.)
We review a trial court’s grant of summary judgment de novo. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We view all of the evidence in a light
favorable to the responding party, liberally construing the responding party’s evidence
while strictly scrutinizing the moving party’s showing, and resolving any doubts or
ambiguities in favor of the responding party. (Id. at p. 768.) Neither we nor the trial
court may weigh the plaintiff’s evidence or inferences against the defendant’s as the trier
of fact would at a trial. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540 (Reid).) “[T]he
facts alleged in the evidence of the party opposing summary judgment and the reasonable
inferences therefrom must be accepted as true.” (Sada v. Robert F. Kennedy Medical
Center (1997) 56 Cal.App.4th 138, 148 (Sada).) “The court seeks to find contradictions
in the evidence, or inferences reasonably deducible from the evidence, which raise a
triable issue of material fact.” (Johnson v. United Cerebral Palsy/Spastic Children’s
5
Foundation (2009) 173 Cal.App.4th 740, 754.) “[D]oubts as to whether a summary
judgment should be granted must be resolved in favor of the opposing party.” (Ibid.)
Evidentiary objections made by the parties—either at the hearing on the summary
judgment motion or in writing before the hearing—are preserved on appeal, even if the
trial court neglects its duty to rule upon them. (Reid, supra, 50 Cal.4th at pp. 531–532.)
2. Principles regarding proof of unlawful employment retaliation
It is an unlawful business practice for an 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,” e.g., a proceeding before the Department of Fair
Employment and Housing or a civil action alleging a violation of the FEHA. (Gov.
Code, § 12940, subd. (h).)
At trial, a plaintiff asserting a retaliation claim under the FEHA must first establish
a prima facie case by showing “(1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) “[A]n employee’s conduct may
constitute protected activity for purposes of the antiretaliation provision of the FEHA not
only when the employee opposes conduct that ultimately is determined to be unlawfully
discriminatory under the FEHA, but also when the employee opposes conduct that the
employee reasonably and in good faith believes to be discriminatory, whether or not the
challenged conduct is ultimately found to violate the FEHA.” (Id. at p. 1043.)
An adverse employment action is one that materially affects the terms, conditions,
or privileges of employment. (Yanowitz, supra, 36 Cal.4th at p. 1052.) FEHA not only
protects against “ultimate employment actions such as termination or demotion, but also
the entire spectrum of employment actions that are reasonably likely to adversely and
materially affect an employee’s job performance or opportunity for advancement . . . .”
(Id. at p. 1054.) “[T]he determination of whether a particular action or course of conduct
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rises to the level of actionable conduct should take into account the unique circumstances
of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.)
Such a determination “is not, by its nature, susceptible to a mathematically precise test.”
(Id. at p. 1054.) The “‘terms, conditions, or privileges’ of employment must be
interpreted liberally and with a reasonable appreciation of the realities of the workplace
in order to afford employees the appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” (Ibid.) “Minor 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 cannot properly be viewed as materially affecting the terms, conditions, or
privileges of employment and are not actionable, but adverse treatment that is reasonably
likely to impair a reasonable employee’s job performance or prospects for advancement
or promotion falls within the reach of the antidiscrimination provisions of [Government
Code section 12940, subdivisions (a) and (h)].” (Id. at pp. 1054–1055.) Actionable
retaliation need not be carried out in “one swift blow,” but rather may be “a series of
subtle, yet damaging, injuries.” (Id. at p. 1055.) Thus, each alleged retaliatory act need
not constitute an adverse employment action in and of itself, and the totality of the
circumstances must be considered. (Id. at pp. 1036, 1055–1056.)
The causal link between protected activity and the employer’s action may be
established by inference from circumstantial evidence, such as the temporal proximity of
the adverse employment action and the employer’s discovery of the employee’s protected
activity. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)
If the employee makes this prima facie showing, a presumption of retaliation
arises. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The employer must then introduce
evidence it acted for a legitimate, nonretaliatory reason. (Ibid.; Sada, supra, 56
Cal.App.4th at p. 149.) If the employer does so, the presumption of retaliation “‘“‘drops
out of the picture’”’” (Yanowitz, supra, 36 Cal.4th at p. 1042), and the question is
“whether the [employee] has shown, or can show, that the challenged action resulted in
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fact from [retaliatory] animus rather than other causes” (Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95, 112 (Reeves)).
The employee, who retains the burden of persuasion, then has “‘“the opportunity
to demonstrate that the proffered reason was not the true reason for the employment
decision. This burden now merges with the ultimate burden of persuading the court that
[the employee] has been the victim of intentional discrimination. [The employee] may
succeed in this either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.”’” (Sada, supra, 56 Cal.App.4th at p. 150.) The
employee cannot “‘“simply show the employer’s decision was wrong, mistaken, or
unwise. Rather, 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.’”’”’” (McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 389.) “‘Pretext may . . . be inferred from the
timing of the company’s termination decision, by the identity of the person making the
decision, and by the terminated employee’s job performance before termination.’” (Sada,
at p. 156.)
When the employer files a motion for summary judgment in a retaliation case,
however, the burdens are reversed and the employer bears the burden of “‘present[ing]
admissible evidence either that one or more of plaintiff’s prima facie elements is lacking,
or that the adverse employment action was based on legitimate, nondiscriminatory
factors.’” (Sada, supra, 56 Cal.App.4th at p. 150.) If the employer succeeds in doing so,
it “‘will be entitled to summary judgment unless the [employee] produces admissible
evidence which raises a triable issue of fact material to the [employer’s] showing. In
short, . . . “the judge [will] determine whether the litigants have created an issue of fact to
be decided by the jury.”’” (Ibid., original italics.)
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“‘The central issue is and should remain whether the evidence as a whole supports
a reasoned inference that the challenged action was the product of discriminatory or
retaliatory animus. The employer’s mere articulation of a legitimate reason for the action
cannot answer this question; it can only dispel the presumption of improper motive that
would otherwise entitle the employee to a judgment in his favor. Thus, citing a
legitimate reason for the challenged action will entitle the employer to summary
judgment only when the employee’s showing, while sufficient to invoke the presumption,
is too weak to sustain a reasoned inference in the employee’s favor.’” (Cheal v. El
Camino Hospital (2014) 223 Cal.App.4th 736, 755.) “Proof of discriminatory intent
often depends on inferences rather than direct evidence. [Citation.] And because it does,
‘very little evidence of such intent is necessary to defeat summary judgment.’ [Citation.]
Put conversely, summary judgment should not be granted unless the evidence cannot
support any reasonable inference for plaintiff.” (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 283 (Nazir).)
3. Triable issues of material fact exist
Based upon our de novo review of the record, especially the parties’ separate
statements, including City’s reply separate statement2 to which Gordon did not object,
2 Filing a reply separate statement citing new evidence not filed or cited in the
moving party’s original separate statement is unauthorized and raises significant due
process concerns. (Nazir, supra, 178 Cal.App.4th at p. 252; San Diego Watercrafts, Inc.
v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Gordon did not object to City’s
filing of a reply separate statement or submission of new evidence, however, except he
objected to Downing’s declaration, which was not filed with City’s summary judgment
motion and not cited in City’s separate statement. It was filed about 12 days after the
motion for summary judgment and its supporting papers, less than the statutorily
mandated 75 days before the designated March 14, 2014 hearing date, and, most
important, cited only in the reply separate statement as additional support for several of
City’s purported undisputed facts. We agree that declaration should not be considered.
City should have filed and served it with the motion and supporting papers and cited it in
its separate statement to provide Gordon with notice that City was relying upon it in
support of several purportedly undisputed facts. City’s course of conduct was contrary to
9
and the evidence cited in those separate statements, we conclude there are triable issues
of material fact that preclude granting summary judgment. Many of City’s assertions of
facts that it considers material are not actually supported by the evidence cited by City,
and Gordon presented evidence raising a dispute as to many of City’s material facts. In
addition, Gordon’s additional material facts, most of which City either expressly agreed
were undisputed, failed to address, or failed to cite any evidence supporting its claim to
dispute, create triable issues. Given the large number of facts (138), we do not address
all of the disputed or unsupported facts, but only those most significant to resolution of
this appeal.
a. City’s claim of legitimate, nonretaliatory reasons
(1) The Acting Aide position and purported concerns about Gordon
A key aspect of City’s claim it had legitimate, nonretaliatory reasons for its actions
with respect to Gordon was that Gordon was only temporarily placed as Acting OIC and
Acting Aide to Chow because James Featherstone, a manager of the multi-agency Los
Angeles Operational Area Critical Incident Planning and Training Alliance (Alliance), to
which Gordon had been assigned since 2008, complained to Downing that Gordon had
“become disruptive” and asked Downing to remove Gordon from the Alliance. However,
Gordon’s deposition, which is the only evidence City cites in support of this assertion,
does not support it. Gordon testified that Downing told Gordon that Gordon would be
reassigned because Featherstone “personally” “had a problem” with Gordon.
In addition, the evidence cited by City does not support the assertion that Gordon
was assigned as Chow’s aide only temporarily to allow Chow to determine if he would be
“a good fit.” City cites the complaint and Gordon’s deposition, both of which state
Gordon was assigned to be Chow’s aide, and paragraph 4 of Chow’s declaration, which
states, “Gordon was going to be loaned to CTSOB and would serve as my Commander’s
Aide.” A paragraph of Chow’s declaration not cited by City states Chow told Gordon
Code of Civil Procedure section 437c, subdivisions (a) and (b)(1) and California Rules of
Court, rule 3.1350(c)(4) and (d). It also raises significant due process concerns.
10
“he was being temporarily loaned to CTSOB to act as my Aide.” Chow does not state the
assignment was temporary to allow him to assess whether Gordon was a “good fit.”
Gordon’s declaration states Chow told him “he was unable to fill the position officially
due to hiring restrictions” and Chow testified at his deposition that as a result of a
“bureaucratic snafu,” the personnel division had not authorized him to have an aide
position and he had to work with that division to obtain authority to open the position,
although he also testified “it had been open for a couple years.” Thus, City has not
established as undisputed facts that Gordon’s assignment as Chow’s aide was meant from
the outset to be temporary or that Gordon had been disruptive in his prior assignment.
Another key aspect of City’s claim of legitimate nonretaliatory reasons with
respect to removal of Gordon as Chow’s aide is Chow’s “significant concerns” about
Gordon’s “judgment and interactions with other employees” and his purported passive
resistance to performing assignments. However, the purportedly undisputed facts City
set forth in its separate statement to support this theory are all either disputed or not
supported by admissible evidence.
First, Gordon established a dispute with respect to City’s assertions that (1) “Chow
had significant concerns” about Gordon’s “judgment and interactions with other
employees,” (2) Chow believed Gordon was passively resisting performing assignments,
and (3) Chow “did not feel confident that [Gordon] was accurately conveying
information to subordinate commands.” Gordon did so by citing and presenting two
highly laudatory performance reviews by Chow, the first for the period of May 20, 2010
to May 19, 2011, and the second for May 20, 2011 to May 19, 2012. Neither reflects any
such concerns about Gordon’s judgment or conduct and both tend to demonstrate Chow
had no such concerns. Each review apparently utilized a standard preprinted LAPD form
with various descriptors pertaining to specified categories of conduct or performance.
The form used for the earlier of the two performance reviews has three ratings for each
category: greatly exceeds standards, meets or sometimes exceeds standards, and needs
improvement. The form used in the later review has only two ratings: meets or exceeds
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standards and needs improvement. Chow did not mark any aspect of Gordon’s
performance or conduct as needing improvement in either review.
Indeed, in the earlier of the two reviews, Chow rated Gordon as greatly exceeding
standards in numerous categories, including many that would seem to pertain directly to
the asserted deficiencies upon which City relies, for example: “Produces the work
deemed most important by employee’s commanding officer; and does so in a quantity
greatly exceeding all but the most productive peers”; “Written products are always on
time, and are consistently of such superior quality that most could be used as Department
exemplars”; “Characterized by management as typically assuming responsibility in a
broad range of situations where such responsibility was extraordinary, and where the
employee consistently acted ethically and productively”; and “Speaks clearly, concisely,
and tactfully to advance Department interests while applying exceptional active listening
to engage listener’s ideas.” Chow marked Gordon as meeting or sometimes exceeding
standards for the category “Exhibits initiative to resolve problems or take on tasks
deemed important by employee’s supervisor or commanding officer.”
Similarly, in the second review, Chow also marked that Gordon met or exceeded
standards with respect to the following categories pertinent to Chow’s assertions of
dissatisfaction with Gordon: “Produces work deemed important by employee’s
supervisor or commanding officer in a quantity which meets or exceeds explicit
supervisory or command expectations”; “Exhibits initiative to . . . take on tasks deemed
important by employee’s supervisor or commanding officer”; “Written work is always or
nearly always submitted on time”; and “Typically completed required assignments, tasks,
and other clear job requirements.” City argues on appeal that Chow was not required to
write “every shortfall” or concern in his evaluations of Gordon, but this argument was not
set forth in the separate statement or supported by any cited evidence. The two
performance reviews are more than sufficient to create a dispute with respect to City’s
asserted facts regarding Chow’s purported dissatisfaction with Gordon.
12
In addition, when asked at his deposition about Gordon’s purported passive
resistance, Chow identified only two instances: formation of a cricket league and
production of a CTSOB goals poster. However, Gordon presented Downing’s testimony
at deposition that lack of a budget, a playing field, and other resources prevented the
formation of the cricket league, and Downing thought the goals poster was completed in
a timely fashion. In addition, we note that the first performance review includes, under
the category of “the employee’s most significant contribution to the Unit or Division and
the Department during this assessment period,” “the development of a youth cricket
team.” Thus, while Gordon may not have succeeded in forming a league, he apparently
formed a team, and Chow praised him for this in the performance review. Moreover,
Chow’s conclusion that Gordon was passively resisting performing assignments is
inherently speculative regarding Gordon’s mental state, and Gordon’s objection to the
pertinent portion of Chow’s declaration as speculative should have been sustained by the
trial court.
City also attempted to support Chow’s “significant concerns” about Gordon by
relying upon an assertion that Featherstone and Captain Horace Frank complained to
Chow that Gordon “claimed personal ownership of presentations he had prepared” and
“delayed and resisted turning [them] over to managers when asked.” The evidence cited
by City is Chow’s declaration, which identifies a single presentation regarding an
earthquake in Chile that was the subject of one call to Chow by Featherstone and another
by Frank. Thus, City’s factual assertion exaggerates the extent of the alleged misconduct
by referring to “presentations.” In any event, Gordon’s declaration created at least a
partial dispute with respect to this asserted fact. Gordon declared that upon request he
provided Frank with the presentation. He further declared he “had given the presentation
to Featherstone on several occasions,” but it is unclear whether this means he turned it
over to Featherstone or that Featherstone was in the audience when Gordon gave the
presentation. City has not addressed this inherent ambiguity. Because we must view the
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evidence in a light favorable to Gordon and liberally construe his evidence, we conclude
Gordon successfully disputed City’s factual assertion.
Yet another factual assertion urged by City in support of Chow’s “significant
concerns” about Gordon is Chow’s concern about Gordon’s “behavior towards other staff
members, including Chow’s secretary.” This assertion is, at best, only partially supported
by Chow’s declaration, the only evidence City cites. Chow declared, “Some of my other
staff members were also not comfortable with Gordon, including my secretary, Rosa
Ortega, who complained to me about an inappropriate angry outburst by Gordon.”
Nothing indicates any discomfort about Gordon felt by any staff members, including
Ortega, was based upon Gordon’s behavior toward those persons. Chow did not even
declare that Gordon directed his inappropriate angry outburst at Ortega. Notably, one of
Gordon’s additional material facts, supported by his declaration and undisputed by City,
established he worked in a cubicle directly outside Chow’s office, and we may infer
Gordon’s conversations with others, including Gordon’s side of telephone conversations,
were audible to others in the vicinity.
A related key aspect of City’s claim of legitimate nonretaliatory reasons with
respect to the aide position is that “[t]he Aide changes were decided in July, before
Downing or Chow had any knowledge of Gordon’s so-called ‘protected activity.’”
(Original boldface & italics.) City’s separate statement addresses this contention with
two purportedly undisputed facts asserting that Chow and Downing “discussed changing
[Gordon’s] role as Chow’s Aide” in “June or July of 2011, while [Gordon] was out on a
medical leave” and “decided to take [Gordon] out of the day to day operation of CTSOB
and have him focus instead on individual projects and programs . . . . This change of
focus did not involve any changes in [Gordon’s] . . . assignment title (Commander’s
Aide) . . . .” City cited as support only Chow’s declaration, which states: “In or about
June or July of 2011, while Gordon was out on a medical leave, I discussed my concerns
about Gordon with Chief Downing. We agreed that Gordon should be gradually
transitioned out of involvement in the day to day operations of CTSOB as my
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Commander’s Aide and into a role focused on individual special projects. This had to be
a gradual transition because I did not have anyone else to perform the Commander’s Aide
duties. This change of focus did not involve any changes in Gordon’s . . . assignment
title (Commander’s Aide) . . . .” Gordon objected to this paragraph of Chow’s
declaration on grounds including inadmissible hearsay. The trial court erred by failing to
sustain this objection, and we will not consider Chow’s declaration as establishing these
factual assertions. Chow’s declaration relates the content of his out-of-court conversation
with Downing, and City attempts to use the content of this conversation to prove the truth
of the matter asserted therein, i.e., Chow and Downing decided at the time of the
conversation to remove Gordon from Commander’s Aide duties. Moreover, both City’s
factual assertions and Chow’s declaration assert, somewhat in contradiction of the point
City is trying to make, that the course of action purportedly chosen by Chow and
Downing did not change Gordon’s “assignment title” of Commander’s Aide.
(2) The OIC position
With respect to City’s claim of legitimate, nonretaliatory reasons for not selecting
Gordon to fill the OIC position, City essentially relies on two theories: Downing was the
sole decision maker and had no knowledge of Gordon’s assistance to Garcia with his
FEHA claim, and Gordon was not more qualified for the position than Seguin because
Seguin had Community Relations Office (CRO) experience that Downing sought, while
Gordon lacked such experience. With respect to the first theory, City failed to establish
that Downing was unaware of Gordon’s assistance to Garcia by the time he selected
Seguin as OIC, which was either August 17 or 18. Downing’s lack of such knowledge
was not listed as a fact in City’s separate statement. Chow’s purported lack of knowledge
that Gordon “prepar[ed] a declaration in connection with Garcia’s lawsuit” (italics
added) was an undisputed fact, but mere ignorance about a declaration is not equivalent
to ignorance of all assistance. Gordon presented (and cited in his responsive separate
statement) Chow’s deposition testimony in which he admitted that he was aware in
August of 2011 that he learned that Garcia had filed a retaliation complaint, and
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sometime in the August 3 to August 12, 2011 time range he learned that Gordon had
spoken to Garcia. City failed to assert Downing’s lack of knowledge as an undisputed
fact. This omission is fatal to City’s theory that Downing acted without knowledge of
Gordon’s protected activity.
City’s theory that Gordon was not more qualified for the position than Seguin also
depended upon factual assertions that are either unsupported or disputed. First, City
attempts to characterize the CTSOB Liaison Section as “a community relations section,”
but the portions of the complaint and Chow’s declaration City cites do not support that
characterization. In addition, Gordon’s declaration squarely refutes that characterization.
Another key aspect of this theory is City’s assertion that Downing “from the outset . . .
envisioned bringing in a Sergeant who had experience supervising a divisional
Community Relations Office.” City cites Chow’s declaration in support of this assertion.
Although Chow’s declaration literally supports the fact, it is either hearsay or speculation
by Chow regarding Downing’s mental state. Gordon objected to this portion of Chow’s
declaration on grounds including hearsay and speculation, and the trial court erred by
failing to sustain that objection. These facts are key to City’s theory, and the dispute as
to the former and failure of City to support the latter with admissible evidence defeat
City’s theory.
Other facts supporting City’s theory are also either disputed or unsupported. For
example, City asserts the mission of the Liaison Section is “to conduct outreach to under-
represented, faith-based communities.” The evidence City cites reflects that this is part
of what the section does. Gordon disputed this fact, citing his own declaration, and set
forth his own additional fact, which is supported by Kozak’s declaration and is
undisputed by City, that “The purpose and mission of the Liaison Section was and always
has been to provide focused strategic counter-terrorism communications in support of the
counter-terrorism goals of the LAPD by conducting outreach to underrepresented faith-
based communities and diaspora communities.” Gordon also set forth, as an additional
fact that City does not dispute, that the Liaison Section is “not a community relations
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office as would be found in a patrol division. It is the liaison arm of the LAPD’s
[CTSOB], whose mission is to prevent the radicalization for jihad of at risk groups, and
the preparedness, training, and interface with those entities and/or groups who would fall
victim to such attacks.” Gordon further set forth a description of what his duties were
when he served as Acting OIC, and City did not dispute his assertion: “maintaining
deployment needs, continuing the Liaison Section mission in combating terrorism and
countering violent extremism, multi-agency interaction (local, state and federal levels),
developing public/private stakeholder partnerships, organizing and conducting meetings,
and public speaking.”
Gordon also asserts, as an additional fact, that the responsibilities of the Liaison
Section OIC position “require the individual holding the position to have a strong multi-
faceted background in counter-terrorism operations and programs (local, state and
national strategies); extensive knowledge in countering violent extremism . . . ;
specialized section/unit operations and supervision; extensive public speaking
experience; public and private sector outreach; and experience and knowledge of the
Terrorism Liaison Officer . . . program, the Suspicious Activity Reporting System . . .
program, and training development and delivery.” The declarations of Gordon and
Kozak support this fact. City attempts to dispute this fact by citing (1) a portion of
Downing’s deposition in which he addressed Seguin’s background, why it was not
important to him that Seguin lacked counter-terrorism experience, and why the CTSOB
performs “outreach” and (2) pages 150 to 152 of Downing’s deposition, which are not in
the appellate record and do not appear to have been contained in the moving, opposing,
or reply papers. While a jury might choose to credit Downing’s assessment of whether
the position required counter-terrorism experience over that of Kozak and Gordon, there
is clearly a dispute on this point sufficient to preclude summary judgment. Significantly,
it is undisputed that Gordon has extensive counter-terrorism experience and liaison work
in the counter-terrorism field, and Seguin had little or none. Thus, if the position requires
counter-terrorism experience, Gordon was more qualified than Seguin. Moreover,
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Gordon established without dispute that he had experience in “community and
public/private outreach” and had “developed a Young Muslim Leaders Group.”
(3) Timing and other factors supporting an inference of retaliation
We further note that the timing and nature of several acts and events, together with
identity of the decision makers and Gordon’s highly favorable performance reviews, also
serve to raise a triable issue of fact regarding whether City’s purported nonretaliatory
reasons and support Gordon’s claim of retaliation. (Sada, supra, 56 Cal.App.4th at
pp. 156–157.) It is undisputed that Gordon spoke to Garcia’s attorney in July or August
of 2011 and she used the information Gordon provided to amend Garcia’s DFEH
complaint on August 3, 2011. That amendment expressly refers to Garcia being denied a
position as a supervisor in the CTSOB Liaison Section, even though highly
recommended by Gordon as the only qualified officer. On August 12, 2011, Garcia’s
attorney moved to amend the complaint in Garcia’s civil suit to allege that Chow asked
Gordon to research and recommend the most qualified person to supervise the Liaison
Section; Gordon recommended Garcia, but Chow said, “‘no, not that guy.’” Garcia’s
attorney served Deputy City Attorney Kelly Crockett Gales with the proposed amended
complaint on August 12, 2011. Chow admitted in his deposition that he was aware in
August of 2011 that he learned that Garcia had filed a retaliation complaint and sometime
in the August 3 to August 12, 2011 time range Chow had a conversation with Gales and
assumed that Gordon had spoken to Garcia.
The following facts are also undisputed: Gordon returned to work on August 16,
2011, after being on medical leave. That day, Chow called Gordon “into his office and
stated angrily, ‘Have you spoken to the City Attorney yet?’” After Gordon inquired,
Chow said, “‘You told Garcia that I didn’t select him for the Liaison OIC and now he’s
suing me and I have to meet with the City Attorney to clear it up.’” Soon thereafter,
Gales phoned Gordon and asked to meet with him regarding Garcia. The same day,
Gordon discovered he had been removed as a proxy from Chow’s computerized calendar.
The next day (August 17, 2011) Gordon interviewed for the OIC position, with Chow and
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Captain William Sutton as the interviewers. Chow “still appeared upset [and] began the
interview curtly.” He also asked Gordon about a 13-year-old complaint. The next day
(August 18, 2011) Chow told Gordon that he was not selected as OIC and he would no
longer be Chow’s aide. Chow also stated that Gordon “could no longer be trusted
because of the Garcia incident.” As of August 18, 2011, Chow removed Gordon from his
duties as Acting Commander’s Aide and Acting OIC.
Gordon also established a dispute with respect to City’s assertion that Chow spoke
to Gordon daily after that time, and City failed to cite evidence that actually supported its
assertion that Chow was unaware Gordon felt ostracized.
b. Adverse employment action
With respect to its theory Gordon suffered no adverse employment action, City’s
theories are that Gordon’s rank, pay, and benefits did not change, the new duties to which
he was assigned were consistent with his rank and skills and were coveted assignments,
and he cannot rely upon his claim of being ostracized because he failed to report it to
management. City fails to explain the final point or offer any supporting authority, and
Gordon created a dispute as to that theory by citing his declaration, in which he states he
attempted to discuss with Chow being ostracized, but Chow did not want to talk to him.
Gordon also established a dispute with respect to each of the remaining theories.
City attempted to establish that the change in Gordon’s duties did not result in any
change in Gordon’s rank, pay, or benefits, but Gordon disputed City’s factual assertion,
citing his own declaration in which he stated he lost overtime compensation and a take-
home car. Gordon also set forth his own factual assertion that as a result of the change of
his duties beginning August 18, 2011, he lost overtime compensation and a “dispersal
parked/take-home car.” The City did not dispute this fact. This, alone, is sufficient to
establish a triable issue of material fact. City argues the overtime and take-home car
were solely attributable to the OIC position. Even if we were to overlook City’s failure
to make such a factual assertion in its separate statement and support it with admissible
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evidence, Gordon’s retaliation claim is based in part on his nonselection as OIC. Thus,
the loss of overtime and a car are an adverse employment action at issue in this case.
City made no attempt to directly negate Gordon’s allegation that City’s actions
impaired his promotion and future income opportunities. It instead asserted that two of
the positions and projects to which he has been assigned since August 18, 2011, are
“coveted.” However, Gordon established a dispute with respect to the “coveted”
character of each such assignment.
We decline to address theories of City’s motion upon which the trial court did not
rely. City expressly based each of its theories upon the same 71 purportedly undisputed
material facts, many of which are disputed and unsupported by the cited evidence. Thus,
according to City’s own reasoning and representation, the disputed and unsupported facts
are material to, and thus preclude summary judgment on the basis of, each theory. We
note City was also not entitled to summary adjudication, as its first “issue” was its
entitlement to summary judgment and its second “issue” merely addressed the scope of
conduct for which Gordon might recover. Issues for adjudication must completely
dispose of an entire cause of action, affirmative defense, claim for damages, or issue of
duty, not merely winnow the scope of acts alleged within a cause of action. (Code Civ.
Proc., § 437c, subd. (f)(1).)
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DISPOSITION
The judgment is reversed, without prejudice to future motions. Appellant Gordon
is awarded his costs on appeal.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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