Olivero v. San Francisco Dept. of Public Health CA1/5 ( 2021 )

Filed 12/3/21 Olivero v. San Francisco Dept. of Public Health CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MELISA OLIVERO,
Plaintiff and Appellant, A160310
v.
SAN FRANCISO DEPARTMENT (City & County of San Francisco
OF PUBLIC HEALTH, Super. Ct. No. CGC-18-564303)
Defendant and Respondent.
Plaintiff Melisa Olivero appeals from the grant of summary judgment
on her complaint against the San Francisco Department of Public Health
(Department) alleging constructive wrongful termination in violation of the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.); retaliation in violation of FEHA; retaliation in violation of Labor
Code section 1102.5; and failure to prevent harassment, discrimination or
retaliation in violation of FEHA. The Department successfully moved for
summary judgment on the grounds that plaintiff failed to present evidence to
support a prima facie claim of retaliation and that she could not show that
the Department’s legitimate, nonretaliatory business reasons for extending
plaintiff’s probation and later transferring her to another location were a
pretext for retaliation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
I. Plaintiff’s Employment
Plaintiff began working for the Department in May 2016, as a practice
manager at Castro–Mission Health Center (CMHC). As with almost all new
employees of the City and County of San Francisco, plaintiff was given a
probationary period set to last for approximately one year. As practice
manager, plaintiff was the management team lead for patient and staff
experience and for operational quality improvement activities.
1 We take these facts from the record before the trial court when it
ruled on the Department’s motion for summary judgment. The statement of
facts in plaintiff’s opening brief contains numerous inaccurate record
citations to the Department’s separate statement of undisputed facts filed in
support of its motion and to asserted additional undisputed facts in plaintiff’s
response to defendant’s separate statement, without citing where in the
record we can find the evidence supporting the facts she asserts. Plaintiff’s
response to the defendant’s separate statement is not itself evidence of
disputed facts but, rather, a “mere assertion” of disputed facts. (Stockinger v.
Feather River Community College (2003) 111 Cal.App.4th 1014, 1024–1025,
disapproved on other grounds in Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 634, fn. 7.) Plaintiff was required to
provide the record citations to the actual evidence (e.g., deposition testimony,
documents, declarations). (Stockinger, at pp. 1024–1025; Cal. Rules of Court,
rule 8.204(a)(1)(C).) Plaintiff’s error is compounded because many of her
citations to the separate statements are to pages that do not even discuss the
facts asserted in the statement of facts section of her opening brief. (See Alki
Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590 [“In
reviewing a ruling on a motion for summary judgment, ‘de novo review does
not obligate us to cull the record for the benefit of the appellant in order to
attempt to uncover the requisite triable issues. As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively demonstrate
error and, therefore, to point out the triable issues the appellant claims are
present by citation to the record and any supporting authority’ ”].) For these
reasons, we base our understanding of the facts on the record citations in
defendant’s brief. (Sciarratta v. U.S. Bank National Assn. (2016) 247
Cal.App.4th 552, 556, fn. 1.)
2
In January 2017, the center director for CMHC, Dr. Chris Nguyen,
resigned, and plaintiff became the interim center director for CMHC.
Dr. Anne Rosenthal began as part-time medical director for CMHC as she
transitioned from a different clinic to work at CMHC full-time. In May 2017,
plaintiff returned to her prior position of practice manager and Dr. Rosenthal
became CMHC’s full-time center director and plaintiff’s supervisor.
During plaintiff’s first year at CMHC, interpersonal and performance
issues arose, which included complaints of unprofessional conduct,
favoritism, inappropriate interactions, and disrespectful behavior. These
concerns were observed directly by the plaintiff’s supervisor, Dr. Rosenthal,
and complaints were made by “multiple staff members,” including an
employee named Gladis S., who was an administrative operations supervisor
at CMHC. When plaintiff was practice manager, she and Gladis S. were
colleagues, and when plaintiff was interim center director, plaintiff
supervised Gladis S.
Plaintiff also had complaints regarding Gladis S., which included both
job performance issues and that Gladis S. lied on multiple occasions.
Plaintiff complained of the following: In October 2016, plaintiff was called
into a meeting with Dr. Nguyen and Gladis S. because Gladis S. reported to
Dr. Nguyen that plaintiff had “said something violent to her . . . .” Plaintiff
denied that she had done so, and at the meeting Gladis S. said, “ ‘[N]ever
mind. Forget it.’ ”2 In November 2016, Gladis S. falsely told others that
2 Plaintiff testified at her deposition that Dr. Nguyen did not tell her
exactly what Gladis S. accused plaintiff of saying. Dr. Nguyen testified he
received a complaint from Gladis S. that plaintiff said she “was going to cut
[Gladis S.].” Dr. Nguyen investigated by speaking with Gladis S. and
plaintiff, and he concluded that plaintiff had made a generalized statement
about “cutting with words” which Gladis S. took personally.
3
plaintiff complained that a nurse manager had sexually harassed plaintiff.
Gladis S. told others that plaintiff did not know how to do her job. When
plaintiff was interim director, she learned that Gladis S. had over 200
unanswered task assignments and over 400 unanswered e-mails. During this
same period, Gladis S. was uncooperative in providing plaintiff the
information required to track Gladis S.’s leave under the Family and Medical
Leave Act. In June 2017, an unauthorized person was in the clinic and
Gladis S. did not file an internal report, call security, or help the city
employee who was attempting to investigate the issue. Gladis S. falsely told
others that the intruder was a clinic patient. In July 2017, Gladis S.
complained that items had been stolen from her office, but she did not file an
internal report regarding the issue. Another time, Gladis S. alleged that her
car was broken into outside of the clinic, but she did not file an internal
report or report it to the Department’s director of safety. Gladis S. also
confronted plaintiff about how plaintiff chose who would be part of a
photoshoot for CMHC. Plaintiff learned of allegations that Gladis S. was
surreptitiously recording conversations with other CMHC employees.
Plaintiff complained about her interactions with Gladis S. verbally and
in e-mails to Dr. Rosenthal and/or Kathryn Horner, who was the director of
operations. In April or May 2017, plaintiff filed an anonymous complaint
with the Department’s Office of Compliance and Privacy Affairs regarding
the allegations that Gladis S. was recording conversations with coworkers.
Dr. Rosenthal, plaintiff’s supervisor, was not aware during the time
that she worked with plaintiff that plaintiff had filed the anonymous
complaint.
4
II. Extension of Probation
In May 2017, the Department extended plaintiff’s probation until
September 28, 2017, due to complaints of unprofessional conduct, favoritism,
inappropriate interactions and disrespectful behavior observed by several
employees at CMHC, including her supervisor, Dr. Rosenthal. Further, in
August 2017, Gladis S. was temporarily assigned to a different location.
III. Investigation and Transfer
On September 13, 2017, the director of security for the Department
informed plaintiff that Gladis S. reported that plaintiff had threatened to
stab Gladis S. Upon hearing this allegation, plaintiff became very upset and
fearful for her safety. She immediately sent an e-mail to Dr. Rosenthal, the
Department’s director of security, and the Department’s director of human
resources stating that Gladis S.’s accusations made plaintiff fear for her own
safety. The e-mail summarized some of the prior issues plaintiff had with
Gladis S.’s performance and false accusations, and stated: “I have
mistakenly allowed for her harassment and lies that she has made about me
to roll off my back, let my supervisor know the facts, provide emails, and
shared with the Union the situation but never formally report her. In fact
agreed to a extension of probation mainly based on her lies even when I knew
this was a manipulative move. However, I am officially reporting to HR, my
direct Supervisor, my Union Representative and [director of security], in this
email, that I am being harassed by this employee, I am deeply and seriously
afraid for my own safety because she is fixated on ruining my reputation; to
say the least.” (Sic.)
Dr. Hammer, the director of primary care, responded to plaintiff’s
e-mail several hours later, thanking her for bringing the matter to her
attention and stating that Roxana Castellón, the interim director of
5
operations for primary care, would be the lead on addressing plaintiff’s
concerns and would work with the human resources division. Plaintiff left
work later that day and then took a leave of absence on the recommendation
of her doctor, which initially was through October 10, 2017, and then was
extended through November 8, 2017.
An investigation was conducted by Ging Louie, senior labor relations
analyst, and Roxana Castellón into Gladis S.’s allegation and plaintiff’s
allegations that Gladis S. mistreated and harassed plaintiff. The
investigation concluded neither party’s claims against the other were
substantiated but recommended that plaintiff and Gladis S. be assigned to
separate facilities. On October 10, 2017, Roxana Castellón notified plaintiff
that she would be reassigned to the Silver Avenue Family Health Center
effective October 24, 2017, and that the reassignment would have no impact
on plaintiff’s classification, compensation or benefits. Plaintiff never reported
to the Silver Avenue clinic. She resigned on November 7, 2017.
On February 13, 2018, plaintiff sued the Department, alleging claims
for constructive wrongful termination and retaliation, among other causes of
action.
IV. Department’s Motion for Summary Judgment
The Department moved for summary judgment on plaintiff’s remaining
causes of action in her first amended complaint,3 which were: (1) constructive
wrongful termination in violation of FEHA; (2) retaliation in violation of
FEHA; (3)retaliation in violation of Labor Code section 1102.5; and (4) failure
to prevent harassment, discrimination or retaliation in violation of FEHA.
3 On August 29, 2019, the court dismissed without leave to amend
plaintiff’s causes of action for constructive wrongful termination in violation
of public policy, negligent hiring and retention, and intentional infliction of
emotional distress. Plaintiff’s appeal does not challenge this ruling.
6
The Department argued that plaintiff’s claims fail because she did not engage
in protected activity prior to her resignation; she was never subjected to an
adverse employment action; and there was a legitimate, nonretaliatory
business reason for the Department’s actions.
The trial court granted summary judgment. It reasoned: “Even if
plaintiff could show that she was subjected to an adverse employment action
that materially affected the terms and conditions of her employment and a
causal link existed between the protected activity and the employer’s action,
Plaintiff cannot establish any of her causes of action because the defendant
had a legitimate reason to extend plaintiff’s probation and transfer her.
Plaintiff fails to present substantial responsive evidence giving rise to a
triable issue of fact that those purportedly adverse employment actions were
the product of retaliatory animus. [Citations.]”
The trial court’s order further found that the Department
demonstrated that it extended plaintiff’s probation because of communication
and performance issues as testified to by Dr. Rosenthal. In response to this
evidence, the plaintiff asserted she was never previously told of performance
issues. The trial court found that the Department’s legitimate business
reason for transferring plaintiff was that the Department reasonably believed
it was best to separate plaintiff from Gladis S. Plaintiff’s criticisms of the
Department’s investigation and report did not prove retaliation. “To the
contrary, the transfers of both [Gladis S.] and plaintiff to different facilities
squarely addressed the ‘legitimate safety concerns’ of which plaintiff
complains.” The court further concluded that the plaintiff did not show that
she was forced to work in an abusive working environment because it was
undisputed that she never reported to the new facility to which she had been
transferred. Instead, she resigned.
7
DISCUSSION
I. Summary Judgment Review
Summary judgment is proper where there is no triable issue as to any
material fact and the moving party is entitled to summary judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s
decision de novo and consider all the evidence set forth in the moving and
opposition papers except that to which objections were made and sustained.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
II. Burden-shifting in Employment Discrimination and Retaliation
Cases
California has adopted the federal burden-shifting test for assessing
employment discrimination claims. (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 354.) “[I]n order to establish a prima facie case of retaliation
under the FEHA, a plaintiff must show (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. [Citations.] Once an employee establishes a prima facie
case, the employer is required to offer a legitimate, nonretaliatory reason for
the adverse employment action. [Citation.] If the employer produces a
legitimate reason for the adverse employment action, the presumption of
retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the
employee to prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc.,
supra, 36 Cal.4th at p. 1042.)
“In responding to the employer’s showing of a legitimate reason for the
complained-of action, . . . ‘ “ . . . 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
8
hence infer ‘that the employer did not act for the [ . . . asserted] non-
discriminatory reasons.’ [Citations.]” ’ ” ’ ” (McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388–389.) “The
plaintiff must do more than raise the inference that the employer’s asserted
reason is false. ‘[A] reason cannot be proved to be “a pretext for
discrimination” unless it is shown both that the reason was false, and that
discrimination was the real reason.’ [Citation.] If the plaintiff produces no
evidence from which a reasonable fact finder could infer that the employer’s
true reason was discriminatory, the employer is entitled to summary
judgment. [Citation.]” (Hicks v. KNTV Television, Inc. (2008)160
Cal.App.4th 994, 1003.)
“Although an employee’s evidence submitted in opposition to an
employer’s motion for summary judgment is construed liberally, it ‘remains
subject to careful scrutiny.’ [Citation.] The employee’s ‘subjective beliefs in
an employment discrimination case do not create a genuine issue of fact; nor
do uncorroborated and self-serving declarations.’ [Citation.] The employee’s
evidence must relate to the motivation of the decision makers and prove, by
nonspeculative evidence, ‘an actual causal link between prohibited
motivation and termination.’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159.)
III. Trial Court Did Not Err in Granting Summary Judgment
A. Plaintiff cannot maintain her retaliation claim under
FEHA because she failed to rebut the Department’s
legitimate, nonretaliatory reasons for its actions.
Under FEHA, it is unlawful 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.” (Gov.
9
Code, § 12940, subd. (h).) As did the trial court, we assume without deciding
that plaintiff’s evidence established a prima facie case of retaliation.
Plaintiff’s primary argument on appeal is that the trial court failed to weigh
her rebuttal evidence, which she asserts raised a triable issue of material fact
regarding intentional retaliation.4 We find no error because plaintiff’s
rebuttal evidence was insufficient to raise a triable issue of material fact
regarding intentional retaliation.
The Department introduced testimony of plaintiff’s supervisor that
plaintiff’s probation was extended based on the supervisor’s own observations
of plaintiff’s performance and communications, and complaints from several
coworkers. Although the coworker complaints included complaints from
Gladis S., Dr. Rosenthal testified, “There were a series of concerns . . . that
were raised by staff members, people that she supervised and some of my
own observations,” and Dr. Rosenthal wrote a memorandum documenting
that “multiple concerns expressed by multiple staff members corroborate a
problem with interpersonal communication; the complaints are not coming
from a single source.” The purpose of the four-month probation extension
was to allow time for Dr. Rosenthal to provide plaintiff with “1-on-1 weekly
supervision . . . including coaching and guidance” “to ensure that she is
successful in her duties specifically as it relates [sic] to her
leadership/supervisory role . . . .” This evidence establishes the Department
4 Plaintiff’s argument appears to concede that the Department met its
burden to offer a legitimate, nonretaliatory reason for the allegedly adverse
employment actions and, therefore, the burden shifted back to the plaintiff to
prove intentional discrimination. We focus our analysis on whether the
plaintiff offered evidence sufficient to rebut the Department’s showing of
legitimate, nonretaliatory business reasons for its actions.
10
had a legitimate business reason to extend plaintiff’s probation for four
months.
Plaintiff’s opening brief argues under the heading “Extension of
Appellant’s Probation” that the record before the trial court includes “detailed
responsive evidence which viewed in total demonstrate [sic], at a minimum, a
triable issue of fact,” and it lists a number of alleged facts, many of which
relate to events that occurred after the Department’s May 2017 decision to
extend plaintiff’s probation. Plaintiff does not explain how events occurring
after May 2017 are relevant to prove that the extension of her probation was
retaliatory.5 Moreover, in violation of California Rules of Court, rule
8.204(a)(1)(C), plaintiff cites only to her response to the Department’s
separate statement of undisputed facts, in which she asserts additional facts,
but not to where in the record we can find the actual evidence she contends
proves her asserted facts (e.g., deposition testimony, documents,
declarations). (Stockinger v. Feather River Community College, supra, 111
Cal.App.4th at pp. 1024–1025.)
But even if we assume the truth of the three facts plaintiff asserts
occurred before the May 2017 decision to extend her probation, they are
insufficient to rebut the Department’s legitimate, nondiscriminatory reason
for its decision. The three facts asserted are: (1) “[i]n November 2016,
[plaintiff] became aware that [Gladis S.] was making allegations about her,
including that [plaintiff] would ‘cut’ her”; (2) “[d]uring the next few months,
[plaintiff] was managing [Gladis S.] and became aware of problems that
5Some of the post-May 2017 facts plaintiff asserts are that “issues with
[Gladis S.] advanced and [Gladis S.] was transferred to a different location in
or around July 2017” and that in September 2017 plaintiff was informed she
was “doing great” and would be removed from probation at the end of the
month.
11
required being reported to Human Resources including HIPAA violations and
illegal recordings”; and (3) prior to May 2017, plaintiff had not been told of
any issues with her performance. Even taken as true, these alleged facts do
nothing to rebut the evidence that plaintiff’s supervisor observed issues with
plaintiff’s communication and that multiple coworkers raised issues
regarding plaintiff’s interpersonal communications. 6
The Department also provided evidence that the decision to transfer
plaintiff and Gladis S. was based on a legitimate, nonretaliatory
determination that they should no longer work together. Plaintiff asserts
there is evidence which raises factual issues and points to four alleged facts:
(1) Gladis S. had already been transferred to a different location; (2) the
Silver Avenue Family Heath Center population spoke predominantly Chinese
and Mandarin; (3) plaintiff spoke English and Spanish; and (4) the Silver
Avenue Family Health Center “did not have the same opportunity to work as
a supervisor while her prior location was understaffed.” 7 The Department
provided evidence that Gladis S.’s assignment to a different location was
initially temporary and was not made permanent until the investigation
concluded both Gladis S. and plaintiff would be “most successful in their
6 Further, the facts asserted by plaintiff in her opening brief state only
when plaintiff “became aware” of Gladis S.’s allegations and alleged
“problems that required being reported to Human Resources,” but they do not
state when, or if, plaintiff actually made any complaints about Gladis S. prior
to the extension of her probation in May 2017. Such general assertions are
insufficient to establish a triable issue of material fact as to retaliation.
(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [“responsive evidence
that gives rise to no more than mere speculation cannot be regarded as
substantial, and is insufficient to establish a triable issue of material fact”].)
7 Again, plaintiff provides record citations only to the additional facts
she asserted in her response to defendant’s separate statement and not to the
actual evidence supporting her asserted facts.
12
respective professional roles if assigned to separate facilities” and therefore
they were “redeployed to other locations.”
Additionally, both Dr. Rosenthal and Roxana Castellón, who had been a
practice manager at Silver Avenue Family Health Center, testified regarding
the language need at Silver Avenue Family Health Center. Castellón
testified, “There was a need at Silver Avenue . . . with similar language
capacity,” and Dr. Rosenthal testified that the Silver Avenue location was in
a “very racially mixed neighborhood” and served Latino as well as Chinese
patients. Plaintiff’s unsupported statement to the contrary is not sufficient to
raise a triable issue of material fact regarding retaliatory animus. (Morgan
v. Regents of University of California (2000) 88 Cal.App.4th 52, 69
[“Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial”
in order to create a triable issue with respect to whether the employer
intended to discriminate’ on an improper basis”].)
As to plaintiff’s last asserted fact, that the Silver Avenue location did
not have the same opportunity to work as a supervisor, we find no evidence of
this in the record. Even the separate statement response to which plaintiff
improperly cites does not state this asserted fact. Moreover, the
Department’s letter to plaintiff notifying her of the reassignment states, “The
assignment will not impact your classification, compensation, benefits and
days off.” We agree with the trial court that the evidence established that
“the transfers of both [Gladis S.] and plaintiff to different facilities squarely
addressed the ‘legitimate safety concerns’ of which plaintiff complain[ed].”
Plaintiff also asserts that there are issues of material fact relating to
the investigation conducted by Louie and whether plaintiff was forced to
work in an abusive environment. She argues that Louie failed to speak with
witnesses supporting her position even though she provided names to him.
13
Again, she only provides record citations to her response to defendant’s
separate statement of undisputed facts and not to Louie’s actual deposition
testimony.8 Moreover, she does not address how any of her complaints
regarding the investigation or the allegedly abusive work environment raise
a triable issue of material fact regarding whether the Department’s actions
were a pretext for retaliation and were motivated by retaliatory animus. For
these reasons, we disregard plaintiff’s arguments regarding the investigation
and the allegedly abusive work environment. (City of Santa Maria v. Adam
(2012) 211 Cal.App.4th 266, 286–287.)
Plaintiff further complains that the trial court erroneously relied upon
McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th
377 (McRae). Her principal complaint is that McRae was an appeal from a
jury verdict and not from a summary judgment. We disagree that McRae’s
different procedural posture is a meaningful distinction such that the trial
court erred in relying upon its reasoning.9
8 Nor does she provide proper record citations to evidence supporting
her claim that she was forced to work in an abusive environment.
9 McRae found a jury’s verdict of retaliation was not supported by
substantial evidence. (McRae, supra, 142 Cal.App.4th at p. 390.) In doing so,
the court “ ‘view[ed] the whole record in a light most favorable to the
judgment, resolving all evidentiary conflicts and drawing all reasonable
inferences in favor of the decision’ ” (id. at p. 389), and found that McRae did
not sustain her burden of demonstrating that the defendant’s decision to
transfer her was the result of retaliation. (Id. at p. 397.) Similarly, in this
case, when the trial court ruled on the defendant’s motion for summary
judgment, it considered whether the plaintiff met her burden to produce
substantial responsive evidence giving rise to a triable issue of material fact
that the purportedly adverse employment actions were the product of
retaliatory animus. (Hicks v. KNTV Television Inc., supra, 160 Cal.App.4th
at p. 1003.)
14
In McRae, supra, 142 Cal.App.4th at page 397, the defendant presented
evidence that it transferred the plaintiff to another location because her
relationship with certain coworkers had deteriorated to the point that she
sought a restraining order against them. The court found, “Under those
circumstances, the decision to transfer Dr. McRae into a new work
environment had every appearance of being a reasonable management
decision,” and McRae’s argument that the defendant should have taken some
other action to alleviate the problems at her original work location did not
meet her burden to produce evidence that the defendant’s reason for the
transfer was pretextual and was based on retaliation. (Ibid.) We find that
the trial court properly relied upon McRae’s analysis when ruling on the
factually similar issue raised in the present case.10
10 Plaintiff complains that the trial court’s order does not address the
case law she cited, which she claims distinguishes McRae. Neither of the
cases she cites (Simers v. Los Angeles Times Communications LLC (2018) 18
Cal.App.5th 1248; Brown v. City of Sacramento (2019) 37 Cal.App.5th 587)
involves the issue of whether the plaintiff presented sufficient evidence to
raise a triable issue of material fact regarding retaliatory animus after the
defendant presented a legitimate reason for its actions. The published
portion of Brown addresses whether plaintiff’s administrative complaint was
timely filed. (Brown, supra, at pp. 598–600.) In Simers, “defendant’s sole
claim [was] that plaintiff ‘did not experience an adverse employment action,’
and so his discrimination claims ‘fail as a matter of law.’ ” (Simers, supra, at
p. 1279.) Plaintiff asserts that these cases support her position that she was
subject to adverse employment actions. But, the trial court’s order assumed
this was true and found that the Department had legitimate business reasons
for its actions. The focus of the trial court’s order was on whether the
plaintiff’s rebuttal evidence was sufficient to raise a triable issue of material
fact regarding retaliatory animus. McRae considers this issue (McRae, supra,
142 Cal.App.4th at p. 397), and the cases plaintiff cites do not.
15
B. Retaliation Claim Under Labor Code Section 1102.5
Plaintiff alleges the trial court erred by failing to address her
retaliation claim under Labor Code section 1102.5, subdivision (b).11 While it
is true that the order does not specifically reference plaintiff’s claim under
section 1102.5, neither does it explicitly name any of plaintiff’s other claims.
Rather, the trial court found that “Plaintiff cannot establish any of her causes
of action” because the Department had a legitimate business reason for its
actions and plaintiff failed to meet her burden of producing responsive
evidence of retaliatory animus.
We are not persuaded that the trial court erred in granting summary
judgment on plaintiff’s Labor Code section 1102.5 claim. Plaintiff argues “the
record is replete with Appellant’s complaints about various issues which
range from her own safety to HIPAA violations to false claims,” but she
provides no record citations to support her position. Nor does she adequately
develop her argument explaining which of her complaints fall under section
1102.5’s protection and when those complaints were made. Thus, we may
disregard this argument. (City of Santa Maria v. Adam, supra, 211
Cal.App.4th at p. 287.)
However, we find that given the evidence of the Department’s
legitimate business reasons for its actions, the trial court did not err in
finding that plaintiff’s section 1102.5 claim likewise fails. (See Edgerly v.
11 Labor Code section 1102.5, subdivision (b) prohibits an employer
from retaliating “against an employee for disclosing information . . . to a
government or law enforcement agency, . . . 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 . . . .” Subdivision (e) provides, “A report made by an employee
of a government agency to his or her employer is a disclosure of information
to a government or law enforcement agency pursuant to [this statute].”
16
City of Oakland (2012) 211 Cal.App.4th 1191, 1199 [to prove a cause of action
under Lab. Code, § 1102.5, plaintiff must establish a prima facie case of
retaliation, and if defendant proves there was a legitimate, nonretaliatory
reason for its acts, the burden shifts to plaintiff to demonstrate pretext].)
C. Failure to Prevent Retaliation Under FEHA
Plaintiff argues that the trial court’s order fails to address her cause of
action for failure to prevent retaliation.12 Having correctly found plaintiff
had no actionable claim for retaliation, the trial court did not err in finding
that the Department was also entitled to summary judgment on plaintiff’s
cause of action for failure to prevent retaliation. (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1021 [“An actionable claim under
section 12940, subdivision (k) is dependent upon a claim of actual
discrimination”].)13
12 FEHA states it is an unlawful employment practice for an employer
“to fail to take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” (Gov. Code, § 12940, subd. (k).)
13 The Department argues plaintiff failed to exhaust her administrative
remedies on her claim for failure to prevent retaliation because her
January 11, 2018 administrative complaint filed with the Department of Fair
Employment and Housing alleges only harassment, disability discrimination
and retaliation. The Department relies on Okoli v. Lockheed Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1617, which found the trial court
lacked jurisdiction over plaintiff’s retaliation claim because the plaintiff
failed to exhaust his administrative remedies as to that claim. Plaintiff
argues in her reply brief that because her claim for failure to prevent
retaliation relates to her retaliation claim, it should be considered exhausted
as well. She relies upon Brown v. City of Sacramento, supra, 37 Cal.App.5th
at page 600, but the portion of Brown regarding exhaustion of administrative
remedies was not certified for publication. Because we find no error in the
grant of summary judgment on plaintiff’s derivative claim for failure to
prevent retaliation, it is not necessary for us to decide whether plaintiff
exhausted her administrative remedies as to this claim.
17
D. Constructive Discharge
Plaintiff contends the trial court failed to address her constructive
discharge claim, and she argues generally, without citation to the record, that
“the record before the trial court catalogued the issues presented . . . from
those ranging from HIPAA violations, false claims to serious security
concerns.” She further states adverse actions were taken against her,
including extending her probation and transferring her. She concludes this
claim should have been decided by a jury. Plaintiff’s conclusory assertions
without citations to the record or reasoned legal argument are insufficient to
demonstrate error. (City of Santa Maria v. Adam, supra, 211 Cal.App.4th at
pp. 286–287.)
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A160310/Olivero v. S.F. Dept. Public Health
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