King v. County of Ventura CA2/6 ( 2013 )

Filed 7/3/13 King v. County of Ventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KYLE KING, 2d Civil No. B242411
(Super. Ct. No. 56-2009-00357224-CU-
Plaintiff and Appellant, OE-VTA)
(Ventura County)
v.
COUNTY OF VENTURA,
Defendant and Respondent.
Appellant Kyle King's employer, respondent County of Ventura (County),
dismissed him from probation less than two months after the County investigated his
complaints of misconduct by his initial training officer. King sued the County for
retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code,
§ 12940.)1 The trial court granted the County's motion for summary judgment.
As we shall explain, King established a prima facie case giving rise to a
rebuttable presumption of retaliation. The County, however, successfully rebutted that
presumption by demonstrating a legitimate, non-retaliatory reason for King's dismissal.
Once the presumption of retaliation disappeared, the burden shifted to King to raise a
triable issue of material fact that the County was more likely than not motivated by a
retaliatory intent. He failed to meet that burden. We affirm.
1 All statutory references are to the Government Code unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
On May 4, 2008, King and coworker Cory Coffey began a six-month
employee probationary period as fire specialists with the Fire Prevention Bureau
(Bureau) of the Ventura County Fire Department (Department). The fire marshal who
headed the Bureau assigned Larry Williams as their supervisor and Aaron Greer as their
training officer. At that time, the fire marshal knew Greer "was not going to be happy
and was not happy [with the] assignment." Before King and Coffey reported for work,
Williams candidly told them that there were problems with Greer and asked them to
report any inappropriate communications or conduct by Greer.
During the first week of training, Greer started talking negatively about
other Department employees, particularly the fire marshal.2 King and Coffey listened to
"basically eight hours of negative and improper comments about the [Department]."
Greer told them: "Nobody there knows what they're doing. Everybody has their heads
up their [ass]." He described an affair the fire marshal purportedly had, or was having,
with the Department's assistant chief. Greer told King and Coffey that the assistant
chief's wife, after learning of the affair, had created a scene at the Department's
headquarters and then vandalized the fire marshal's home by spray-painting the word
"whore" on her driveway. Greer told them to watch the couple's body language at the
next meeting, as "the fire was still burning."
Greer also described the fire marshal's purported behavior with other
Department employees, saying "she sleeps around with everybody, all the line guys." He
told King and Coffey that the fire marshal had discovered that one of her former male sex
partners, who also was a County employee, had died from an AIDS-related illness. Greer
stated the fire marshal subsequently was tested for the HIV virus, and as word spread
through the Department, approximately 12 male officers with whom she had been
sexually involved sought reimbursement from the union for the costs of testing. Greer
2 Due to the nature of Greer's comments, we refer to the fire marshal by her title
and identify other Department personnel only where necessary. The record reflects that
Greer made derogatory comments about a number of Department employees, but for the
most part, their identities are irrelevant to the resolution of this appeal.
2
warned King that the fire marshal was still "on the prowl," and was eyeing King as a
possible partner.
Uncomfortable with these comments, King and Coffey complained to
Williams. They reported that Greer was spending a great deal of training time discussing
the fire marshal's sex life and who was sleeping with whom in the Department. Williams
agreed that the comments were inappropriate for the work place and discussed their
concerns with Pam Mack, the Department's Human Resources Director. Mack instructed
Williams to obtain written statements from King and Coffey. After receiving the
statements, Tom Dorch of the County Executive Office investigated the complaints.
Mack and Dorch repeatedly assured King and Coffey that the complaints would remain
confidential. King and Coffey also were told not to make any further complaints about
Greer. The County acknowledges "that something approximating the claimed
misbehavior did occur."
After their meeting with Dorch, King felt he was getting the "cold
shoulder" from formerly friendly coworkers. One of the coworkers, Inspector Richard
Martinez, approached Coffey and said he knew that she and King had "told on" Greer.
When King and Coffey told Mack what Martinez had said, Mack acknowledged a "leak"
and said they were searching through Department e-mails to determine its source.
Following the investigation, the fire marshal, who was aware of the
complaints, assigned Rodrigo Torres as King and Coffey's supervisor. The fire marshal
told Torres she thought he "could provide a much better training environment for
[them]." Torres claims he was not informed of either the complaints or the investigation.
At the time of the supervisorial transfer on June 8, 2008, Greer told Torres
that both probationers were performing satisfactorily. Greer provided Torres with their
training verification checklists, which are used by the Bureau as a guide in the training of
new personnel. The checklists showed the areas that needed to be covered during
training and also verified that such areas were covered. Torres denied any knowledge of
the checklists.
3
Torres assigned King to clerical duties at the Department's main public
counter and placed Coffey in a different clerical position. Torres assigned an
experienced, trusted employee, Mark Enneking, to train King at the counter. According
to Enneking, "[w]orking at the Public Counter can be stressful as the Counter can get
busy. As part of the duties I handled, I would quote the public applicable fees for a
permit. This entailed looking up the fee schedules and making certain calculations. At
times the schedules themselves could be confusing." Enneking claims that Torres never
asked him for his input or opinion on King's work performance and that, in Enneking's
view, King's performance at the counter was satisfactory.
On July 15, 2008, Torres gave King a written probationary performance
review which stated King "need[s] improvement" in 7 of the 25 categories. The review
indicated that King should continue to study and learn Department policies and
procedures, ensure that documents are completed accurately and in a timely manner,
improve on attention to detail, ensure that personal and public safety is not compromised,
complete tasks as assigned and display ability to make appropriate decisions. The review
did not include any specific examples of performance deficiencies.
Torres and King orally discussed the areas in which he needed to improve.
King agreed with some of the criticisms, particularly improving his knowledge of certain
codes. Torres claims that he told King at that time, and again on August 4, 2008, that he
was not on the road to completing probation. King contends that no one ever told him he
was in danger of dismissal.
While observing King at the counter, Torres noted "multiple transactions
. . . where the documents were incomplete and the forms were incorrect." On August 1,
2008, Torres discovered that King had not properly "closed" the public counter. King
had left on the TVs and had stuffed the unfolded flags in a drawer. Torres subsequently
recommended that King be dismissed from probation. On August 28, 2008, the fire
marshal called King into her office and gave him a written notice of probationary
dismissal, which she had signed. The notice gave no reasons for his dismissal. When
King asked why he was being dismissed, Torres "showed [him] two mistakes that [he]
4
had made three weeks prior on charging somebody wrong at the counter." The fire
marshal also stated: "We don't think you're a good fit for this [D]epartment." The fire
chief denied King's request for a hearing to seek clarification of the reasons for his
termination. A few days after his dismissal, Torres discarded King's training file.
Approximately five weeks later, the County dismissed Coffey from probation.
While he was supervising King, Torres prepared an activity/event log
documenting King's performance. In addition to noting the probationary performance
review meeting on July 15, 2008, the log lists three specific performance issues that
occurred prior to King's dismissal. The first and most significant incident occurred when
King was on arson patrol on July 5, 2008. King was having trouble seeing while driving
at night in a poorly lit area of Fillmore and asked permission to leave his shift early. The
log states that Torres "offer[ed] to pick [King] up but he has already returned and is in the
HQ parking lot." It further states that when King returned from patrol, Torres "explained
[his] concern with [King's] poor use of judgment in driving a county vehicle when he was
not able to see well at night."
King disputes Torres's account of the incident. King testified that when he
called Torres to report the issue, Torres responded: "Oh, no problem. Just come on
back." Torres also said: "It's not an issue. Don't worry about it." King claims he did not
realize there was an issue until it came up during his performance review.
The second incident in the log occurred on July 8, 2008, when King
"turn[ed] in his timecard unsigned and without required ICS-214 for 4th of July."
According to Torres, he had to ask King three separate times to sign and turn in his
timecard. King claims he signed and turned in his timecard as requested.
The third incident was King's failure to turn off the TVs and to properly
fold the flags when he closed the office on August 1, 2008. King asserts that after Torres
counseled him on appropriate "closing" procedures, King had a coworker show him how
to correctly fold the flags.
The log further notes that following King's dismissal, Torres received
"copies of multiple incoming transmittals, receipts and inspection request with mistakes
5
and not filled out completely." The log reflects that the Department concluded that King
was responsible for "[a]ll discrepancies," and issued refunds to customers totaling several
thousand dollars.
Additionally, the record reflects that King observed a "small grass fire"
when he was on arson patrol on July 5, 2008. King noted the grass fire in his daily
activity log but did not describe what he did in response to the fire. King responds that
"[a]t the time, I had not been instructed on what to write in my log when I came upon a
scene where fire department personnel were already there. I did note the fire in my log,
but did not include any facts." King did, however, record specific details about other
matters, including his dinner plans.
Following his dismissal, King filed a complaint against the County for
retaliation in violation of section 12940, wrongful termination and breach of contract. He
claims he was dismissed because he was perceived as a "snitch." The County moved for
summary judgment. King opposed the motion, asserting that triable issues of material
fact exist regarding whether he was dismissed because of his complaints about Greer.
The trial court granted the motion. Relying upon Morgan v. Regents of University of Cal.
(2000) 88 Cal.App.4th 52 (Morgan), the court determined that the County had
established "that the person responsible for the decision to terminate plaintiff, Rod
Torres, had no knowledge that [King] or anyone else had made a complaint about Greer
and was unaware of the investigation into [King's] complaint." The trial court
determined that King "offers nothing but rank speculation in response, and this is not
specific or substantial enough to meet his burden."
The trial court also determined that Torres had legitimate, non-retaliatory
reasons for recommending King's dismissal. The court stated: "It is undisputed that his
evaluation in July, 2008, indicated [King] needed improvement. He had to be asked three
times to turn in his time card, and it wasn't signed. Plaintiff omitted information from
phone messages, inspection requests, and applications and made fee calculation errors."
The court observed that "[a]t best, plaintiff complains that he received no training and
6
was assigned to difficult assignments. But there is no indication that this occurred
because of his complaint." King appeals.
DISCUSSION
Standard of Review
We review an order granting summary judgment de novo. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We apply the same rules and
standards as the trial court, but "'. . . are not bound by the trial court's stated reasons or
rationales. . . .'" (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th
430, 436.) Summary judgment must be granted if "all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof." (Aguilar, at p. 850, fn. omitted.) We view the facts in the
light most favorable to the nonmoving party and assume that, for purposes of our
analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County
Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.)
First Cause of Action for Retaliation
1. Shifting Burdens in Retaliation Cases
King contends the County violated FEHA by dismissing him from
probation in retaliation for his complaints about Greer. As the County points out, a
probationary employee ordinarily can be terminated without good cause, notice or a
hearing. (California School Employees Assn. v. Governing Bd. of East Side Union High
School Dist. (2011) 193 Cal.App.4th 540, 543, fn. 2; see Phillips v. Civil Service Com.
(1987) 192 Cal.App.3d 996, 1000 ["[a] probationary employee of a public agency may be
dismissed without a hearing and without judicially cognizable good cause"].) It is
unlawful, however, to retaliate against an individual who has complained about, or filed a
complaint regarding, sexual harassment or hostile work environment. (§ 12940, subd.
(h).)
7
Because plaintiffs in employment retaliation cases generally lack direct
evidence of the employer's retaliatory intent, "courts rely on a system of shifting burdens
to aid the presentation and resolution of such claims." (Morgan, supra, 88 Cal.App.4th at
p. 68.) Under the three-part test developed in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792, "(1) the complainant must establish a prima facie case of [retaliation]; (2)
the employer must offer a legitimate reason for [its] actions; (3) the complainant must
prove that this reason was a pretext to mask an illegal motive." (Clark v. Claremont
University Center (1992) 6 Cal.App.4th 639, 662.)
To establish a prima facie case of retaliation, a plaintiff must show that he
engaged in a protected activity, that his employer subjected him to an adverse
employment action, and that 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.) If the
plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises and
the burden shifts to the employer to rebut the presumption with evidence that its action
was taken for a legitimate reason. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-
356; Yanowitz, at p. 1042.) If the employer does so, the presumption of retaliation
disappears, and the burden shifts back to the plaintiff, who must offer evidence
demonstrating that the employer's justification is a pretext for retaliation, or offer
additional evidence of retaliation. (Guz, at p. 356; Yanowitz, at p. 1042; McRae v.
Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389
(McRae).)
"[W]hether or not a plaintiff has met his or her prima facie burden, and
whether or not the defendant [employer] has rebutted the plaintiff's prima facie showing,
are questions of law for the trial court, not questions of fact for the jury." (Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).) In other
words, "if the plaintiff cannot make out a prima facie case, the employer wins as a matter
of law. If the employer cannot articulate a nondiscriminatory reason for the adverse
employment decision, the plaintiff wins as a matter of law. In those instances, no fact
finding is required, and the case will never reach a jury." (Id. at p. 204.)
8
2. Prima Facie Case of Retaliation
There is no dispute that King engaged in a protected activity when he
reported Greer's misconduct, and that he suffered an adverse employment action when he
was dismissed from probation. The dispute centers on whether King has met his prima
facie burden of showing that a causal link existed between the two. Direct evidence of
retaliatory intent is not required to prove causation. (Flait v. North American Watch
Corp. (1992) 3 Cal.App.4th 467, 478.) Rather, "'[t]he causal link may be established by
an inference derived from circumstantial evidence, "such as the employer's knowledge
that the [employee] engaged in protected activities and the proximity in time between the
protected action and allegedly retaliatory employment decision."' [Citation.]" (Fisher v.
San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.) This burden is "not
onerous" and the evidence required to sustain it is minimal. (Heard v. Lockheed Missiles
& Space Co. (1996) 44 Cal.App.4th 1735, 1751; Caldwell, supra, 41 Cal.App.4th at p.
197.)
The County asserts that King cannot show a causal link because the
uncontroverted evidence established that Torres was unaware of the protected activity
when he recommended King's dismissal. The County relies heavily upon Morgan, in
which the plaintiff alleged that his layoff was due to racial discrimination. After an
arbitrator found that legitimate business reasons motivated the layoff, the plaintiff
unsuccessfully applied to be rehired, and filed an employment discrimination action. (88
Cal.App.4th at p. 62.) The Court of Appeal concluded that summary judgment was
proper because there was no evidence that plaintiff was qualified for the positions he had
sought or that the decision-makers who denied his applications knew of his prior
discrimination complaint. (Id. at pp. 72-80.) Although plaintiff established that certain
employees were aware of the complaints, he was unable to show that any of those
employees were involved in the various departments' decisions not to hire him. (Id. at p.
70.) The court observed that "each of the individuals who decided not to hire [plaintiff]
for a particular position disclaimed knowledge of the fact that [he] had previously filed a
9
grievance against the [employer]. Without such knowledge, these individuals could not
have acted in retaliation for [plaintiff's] filing of the grievance." (Id. at p. 74.)
The difference here is that Torres was not the only individual involved in
King's dismissal. As King's supervisor, Torres had authority to recommend King's
rejection from probation, but that decision had to be approved at a higher level. The fire
marshal admitted during her deposition that "[a] lot of [dismissal] decisions are based on
recommendations from . . . direct supervisors. So again, there's multiple people included
in the decision-making process." She acknowledged that if the fire chief said we are not,
you know, dismissing this person, then he would not be dismissed.
The Morgan court recognized that when employment decisions involve
more than one level of review, "the final decision may be influenced by the
discriminatory intent of individuals playing a role at any point in the decisionmaking
process." (Morgan, supra, 88 Cal.App.4th at p. 74, italics added.) King established that
the fire marshal, as the head of the Bureau, was aware of the nature of the protected
activity and of the investigation. She also was the principal target of Greer's
inappropriate comments. Following the investigation, the fire marshal reassigned King
and Coffey to Torres for supervision and training. Less than two months later, she
authorized King's dismissal. Given the fire marshal's knowledge of King's complaints
and her personal involvement in reassigning and dismissing King within a two-month
period, we conclude that King made the "minimal" evidentiary showing necessary to
sustain a prima facie case of retaliation. (See McRae, supra, 142 Cal.App.4th at p. 388;
Caldwell, supra, 41 Cal.App.4th at p. 197.)
3. Legitimate, Non-Retaliatory Reason for Dismissal
Once King established a prima facie case of retaliation, the burden shifted
to the County to show a legitimate, non-retaliatory reason for his dismissal. (Caldwell,
supra, 41 Cal.App.4th at p. 201.) This is a burden of production, not persuasion. (Ibid.)
The employer need not persuade the court that it was actually motivated by the proffered
reasons. It is only required to raise a genuine issue of fact as to whether it retaliated
against the employee, by setting forth admissible evidence of its reasons for the
10
dismissal. (Id. at pp. 200-201.) The employer's explanation need not be "sound, fair, or
correct, but only colorable enough that a rational jury could believe it to have been the
employer's true motivation. [Citation.]" (Reeves v. Safeway Stores, Inc. (2004) 121
Cal.App.4th 95, 112, fn. 12.)
The County proffered substantial evidence of King's substandard
performance during his probation. This included evidence that King exercised poor
judgment by driving a County vehicle while experiencing night blindness, failing to
report the outcome of a brush fire, making numerous mistakes at the public counter,
failing to sign and submit his timecard in a timely fashion and leaving the office without
properly "closing" the counter. King acknowledges that when he was dismissed, Torres
showed him two calculation errors he had made at the counter. This evidence, if believed
by a jury, could reasonably support a judgment in the County's favor. We conclude that
the County satisfied its burden of articulating a legitimate, non-retaliatory reason for
King's dismissal.
4. No Triable Issue as to Intentional Retaliation
After the County met its burden, the presumption of retaliation "simply
drops out of the picture" and the burden shifts back to King to demonstrate a triable issue
of material fact that the County's proffered justification was mere pretext. (St. Mary's
Honor Center v. Hicks (1993) 509 U.S. 502, 510-511; McRae, supra, 142 Cal.App.4th at
pp. 388-389.) King cannot satisfy this burden simply by submitting evidence that the
County's decision was wrong or unwise. He must demonstrate that its proffered reasons
were so inherently implausible that a reasonable factfinder could rationally find them
unworthy of credence, and infer that the County did not act for the stated legitimate
reasons. (McRae, at pp. 388-389.) Because King has no direct evidence of a retaliatory
reason for his termination, he must introduce "specific" and "substantial" circumstantial
evidence raising a triable issue of material fact that the County was more likely than not
motivated by a discriminatory reason. (Morgan, supra, 88 Cal.App.4th at pp. 68-69.)
King has not met this burden.
11
First, King contends that a triable issue exists regarding whether Torres or
the fire marshal was the decisionmaker in dismissing him from probation. Although the
fire marshal's involvement in his dismissal was relevant to assess whether King had
established a prima facie case, it did not by itself create a triable issue as to whether the
County, having presented legitimate reasons for the dismissal, acted with retaliatory
intent. King has no evidence that the fire marshal did anything more than "rubber stamp"
Torres's recommendation to dismiss King from probation. Without any additional
evidence, a jury would have to speculate that the fire marshal approved Torres's
recommendation, not because of the reasons given by Torres, but because she had a
retaliatory motive due to her knowledge of the complaints about Greer. A plaintiff's
"'suspicions of improper motives . . . primarily based on conjecture and speculation' are
not sufficient to raise a triable issue of fact to withstand summary judgment." (Kerr v.
Rose (1990) 216 Cal.App.3d 1551, 1563-1564.)
Next, King asserts that a triable issue exists regarding whether Torres was
aware of the complaints about Greer when he recommended King's dismissal. Torres
adamantly denies having any knowledge of the complaints or the investigation until King
filed this lawsuit. King testified that, to his knowledge, no one at the Department ever
said or wrote anything indicating that the complaints were the reason for his dismissal.
King further admitted that he has no specific information that Torres ever knew about the
complaints. His theory is that Torres must have known because at least one other
employee, Inspector Martinez, told Coffey that he had heard that she and King had "told
on" Greer. The County maintains that this statement is inadmissible hearsay, but even if
it is admissible, it does not create a triable issue that Greer also heard about the
complaints and then retaliated based on such gossip. "[M]ere workplace gossip is not a
substitute for proof." (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 521.)
Finally, King devotes much of his brief to explaining why all the reasons
given for his rejection from probation were illogical, weak or lacked merit, and why he
was "on track" to satisfactorily complete his probation. He is correct that evidence
showing that the employer's claimed reason for dismissal is false may "suggest that the
12
employer seeks to conceal the real reason for its actions, and this in turn may support an
inference that the real reason was unlawful." (Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 715.) In Mamou, for example, the court determined that the
evidence supported such an inference because the employer "never rested on a single
coherent explanation for its firing of [the plaintiff], and that several if not all of its
explanations were, to put it mildly, questionable." (Id. at p. 716.) That is not the case
here.
During his 2008 probationary performance review, King acknowledged that
he needed to improve in certain areas. At his deposition, he admitted certain deficiencies
in his performance, including making "[a]n occasional mistake at the counter" and
miscalculating fees on three or four occasions. King also admitted that, except for
creating an organizational chart, he was not assigned tasks above his ability level. He
claims that certain criticisms of his performance were mistaken or unfair, but a "plaintiff's
subjective beliefs in an employment . . . case do not create a genuine issue of fact; nor do
uncorroborated and self-serving declarations." (King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 433; Horn v. Cushman & Wakefield Western, Inc. (1999) 72
Cal.App.4th 798, 816 ["[A]n employee's subjective personal judgments of his or her
competence alone do not raise a genuine issue of material fact"].) The plaintiff's
evidence must relate to the motivation of the decisionmakers to establish, by
nonspeculative evidence, an actual causal link between the prohibited activity and
dismissal. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.)
There is no question that the Department's decision to assign King to a
training officer who was causing "problems" and who was unhappy with the assignment
placed him in a difficult situation. That the Department could have done more to prevent
the misconduct in the first place does not mean that it retaliated against King once the
complaints were made. The record reflects that the County investigated the complaints
and, as a result, transferred him to a new supervisor. King has no evidence that anyone in
the Department thought Greer's behavior was appropriate and should not have been
13
reported. To the contrary, even Greer admits that King and Coffey were placed in a
"hostile work environment."
King did introduce evidence that Greer thought King was performing
satisfactorily before the transfer, and that coworker Enneking believed King's
performance at the counter was satisfactory notwithstanding some mistakes. King further
claimed that after the investigation, he received the "cold shoulder" from other coworkers
and did not receive appropriate training from Torres. This evidence does not, however,
refute the uncontroverted evidence that King displayed performance deficiencies while
working under Torres's supervision. It also does not demonstrate a causal link between
the complaints and King's dismissal. At best, it shows that Torres and Greer had different
training styles and that Torres was more critical of King's performance issues than
Enneking. The trial court properly concluded that the lack of any nonspeculative
evidence linking the complaints to the dismissal defeats King's retaliation claim.
Second Cause of Action for Wrongful Termination
King's second cause of action alleges that he was wrongfully terminated in
violation of the public policy embodied in FEHA. The County correctly observes that
section 815, subdivision (a) abolishes common law tort liability for public entities,
including tort liability for wrongful termination in violation of public policy. (Miklosy v.
Regents of University of California (2008) 44 Cal.4th 876, 899-900.) Miklosy affirmed a
judgment of dismissal after the sustaining of a demurrer, stating that the defendant public
entity could not be liable for wrongful termination in violation of a public policy based
on retaliation. (Id. at pp. 899-900, 903.) Notwithstanding this immunity, however,
King's failure to establish a triable issue of material fact regarding his retaliation claim
under FEHA similarly defeats his wrongful termination claim.
Third Cause of Action for Breach of Contract
King's third cause of action alleges that his probationary employment
contract with the County provided that he would not be terminated for reasons which
violate public policy. In addition to the previously discussed retaliation allegations, King
asserts the County violated section 19173, subdivision (b), which states an employee
14
dismissed or rejected from probation must be given a written "statement of the reasons
for the rejection." As the County points out, section 19173 does not create a private right
of action or any civil remedy in damages for its violation. (See Moradi-Shalal v.
Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 300 ["The fact that neither the
Legislative Analyst nor the Legislative Counsel observed that the new act created a
private right of action is a strong indication the Legislature never intended to create such
a right of action"].)
King further contends that the County did not follow certain procedural
requirements set forth in the County personnel rules and the union contract. Once again,
King has not shown that such procedural violations, even if true, create a private right of
action. Typically, such procedural and due process issues must be raised in an
administrative writ proceeding. (Code Civ. Proc., § 1094.5; see Mola Development Corp.
v. City of Seal Beach (1997) 57 Cal.App.4th 405, 411 ["Mandamus proceedings allow
courts to flesh out the issues and factual components of the dispute, including issues of
procedural fairness"]; Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716,
1729-1730 [administrative mandamus review under section 1094.5 extends to the
question of whether there was a "fair administrative hearing"].) In the absence of any
triable issues of material fact, the trial court appropriately granted the County's motion
for summary judgment.
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
15
Rebecca S. Riley, Judge
Superior Court County of Ventura
______________________________
Law Office of Allen Broslovsky, Allen Broslovsky for Plaintiff and
Appellant.
Wisotsky, Procter & Shyer, Alan E. Wisotsky, Jeffrey Held for Defendant
and Respondent.
16