Ajaelo v. County of Los Angeles CA2/4 ( 2014 )

Filed 9/4/14 Ajaelo v. County of Los Angeles CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
AMBROSE CHUKWUAGOZIE B248289
AJAELO,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC 444590)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Zaven V. Sinanian and Michael P. Linfield, Judges. Affirmed.
Ambrose Chukwuagozie Ajaelo, in pro. per.
Peterson * Bradford * Burkwitz, Avi Burkwitz, and Craig G, Marinho for
defendant and respondent County of Los Angeles.
__________________________________
INTRODUCTION
Ambrose Chukwuagozie Ajaelo appeals from a judgment, following a bench
trial, in favor of respondent County of Los Angeles. He contends the trial court
erred in granting summary adjudication on four of his five employment
discrimination claims against respondent. He further contends that the court erred
in denying his motion to reopen and continue discovery, which he made after his
trial counsel withdrew from representing him. Finally, he contends the court erred
in granting a motion for nonsuit on his remaining claim. We conclude appellant
has not met his burden of showing that the trial court erred. Appellant has not
shown that any of the purportedly adverse employment actions he suffered resulted
from his race or national origin. Accordingly, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Complaint Against County of Los Angeles
Appellant is an African-American male of Nigerian national origin. He was
employed as an “Associate Civil Engineer” by the Los Angeles County
Department of Public Works (DPW). Keith Lee, Robert Scharf and Yolanda
Malacon were his supervisors. On August 27, 2010, appellant filed a complaint
against DPW, an agency of the County of Los Angeles (County), Lee, Scharf, and
Malacon. In a first amended complaint (FAC), appellant alleged claims for race
discrimination, national origin discrimination, harassment, failure to prevent
discrimination, and retaliation under the Fair Employment and Housing Act
(FEHA), Government Code section 12900 et seq. Appellant subsequently
dismissed Lee, Scharf, and Malacon as defendants, leaving the County as the only
named defendant.
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The FAC alleged three categories of discrimination: failure to promote,
failure to provide a fair work environment, and retaliation for filing a complaint
with the Equal Employment Opportunity Commission (EEOC).
1. Failure to Promote
The FAC alleged that appellant was denied a promotion at least four times
over the past 10 years on account of his race and national origin, despite being
highly qualified for those positions. Appellant contends he was qualified for a
promotion based on an October 6, 2008 “Appraisal of Promotability,” in which he
was deemed “well qualified” for promotion in all areas of consideration. Appellant
also contends he received much higher scores for a leadership class at the Los
Angeles (L.A.) Academy than other employees who were promoted.
2. Failure to Provide a Fair Work Environment
The FAC also alleged (1) that appellant was not assigned the necessary
number of quality assistants, and (2) that appellant’s supervisors failed to prevent
one of his assistants from harassing him on account of his race or national origin.
The FAC alleged that in 2009, appellant’s workload was increased but he
was assigned only a single assistant, Narciso Duldulao, although other similarly-
situated engineers were assigned two or three assistants. The FAC further alleged
that Duldulao was “often disobedient and used profanity against Plaintiff, on
several occasions in front of [appellant’s supervisor] Lee. Defendant Duldulao not
only called Plaintiff [‘]stupid[’] on several occasions, but he went as far as to call
Plaintiff a ‘mother f**cker.’ Defendant Duldulao did not conduct himself in such
a lewd and disrespectful manner with any other member of the department.”
The FAC further alleged that in or around September 2009, Duldulao
refused to perform work requested by appellant. Appellant repeated the request
verbally to Duldulao in front of Lee. In response, Duldulao started using profanity
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and refused to complete the assignment. Despite being present, Lee took no
corrective action. Appellant then issued a write-up to Duldulao for insubordination
and use of profanity. Thereafter, an investigation of the incident was conducted by
DPW, and statements from appellant and Duldulao were taken.
The FAC further alleged that in or around January 2010, appellant
completed Duldulao’s annual performance evaluation, in which he mentioned
Duldulao’s past conduct. Supervisor Scharf wrote another performance evaluation
for Duldulao, and asked appellant to submit that one in lieu of appellant’s
evaluation. Lee, Malacon, and Scharf allegedly threatened appellant that if he did
not withdraw his write-up of Duldulao, they would give him a negative review on
his performance evaluation. When appellant refused, they told him that Duldulao’s
disobedience and use of profanity was due to appellant’s poor communication
skills and his accent.
3. Retaliation
In January 2010, appellant filed a complaint against DPW with the EEOC.
In the amended EEOC complaint, appellant alleged that he was subject to different
terms and conditions of employment due to his race, including reduction of staff
despite increased workload and failure to support appellant’s “directives” to
Duldulao. The FAC alleged that around April 12, 2010, appellant met with Lee
and Scharf about Duldulao. During this meeting, Lee and Scharf allegedly told
appellant that they were disappointed with appellant’s EEOC complaint and
advised him that this would reflect poorly on his next performance evaluation.
Appellant told them that he did not appreciate being threatened with retaliation for
simply doing his job. He also requested to be transferred to a different division
within the department.
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Duldulao filed a grievance against appellant on January 27, 2010. Appellant
tried to resolve the grievance informally by meeting with Duldulao in February
2010. The attempt failed when Duldulao allegedly “belittled [appellant] and
insulted him.” At the meeting, Duldulao showed appellant a tape recorder and
advised him that the meeting was being recorded. Immediately after the meeting,
appellant emailed David Pak from human resources and informed him that the
meeting had been tape-recorded.
The FAC alleged that on June 28, 2010, appellant was “suddenly”
summoned to a meeting with Lorena Andrade-Guzman from human resources, and
asked to give a statement regarding the meeting with Duldulao. Appellant was
asked several times if he ever saw a tape recorder, and he categorically denied
seeing one. On July 2, 2010, appellant e-mailed Andrade-Guzman to inform her
that he had been mistaken about not seeing a tape recorder. Subsequently,
appellant received a written reprimand for his “failure to use sound judgment,
report information accurately and completely, and willful deceit.”
On July 28, 2010, appellant received a poor annual performance evaluation.
He was rated as performing at an “overall marginally competent manner.” He was
rated as weak in “completion of work on schedule, accuracy, thoroughness, written
expression, observance of rules and regulations, compliance with work
instructions, orderliness in work, application to duties, performance in new
situations, performance with minimum instructions, leadership, and making
decisions.” The evaluation also noted that appellant’s emails to his supervisors
contained “demeaning language, accusations without supporting evidence, and a
serious tone of disrespectfulness toward his supervisors.” On July 30, 2010,
appellant was informed by Scharf that he had been transferred to his former
division.
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Finally, the FAC alleged that “[o]n or about July 29, 2010, Plaintiff filed
charges with the State of California, Department of Fair Employment and Housing
and received immediate right to sue letters.”
B. Motion for Summary Judgment, or in the Alternative, Summary
Adjudication
On August 3, 2011, respondent filed a motion for summary judgment, or in
the alternative, summary adjudication. In the motion, respondent argued that the
entire case should be dismissed, as appellant had failed to prove he had exhausted
his administrative remedies by timely filing a complaint with the Department of
Fair Employment and Housing (DFEH). Even assuming that appellant had
exhausted his claims by filing a DFEH complaint on July 29, 2010, respondent
contended that appellant’s first, second, and fourth causes of action were time-
barred. In the alternative, respondent argued that all of the causes of action in the
FAC lacked merit.
1. Failure to Promote
Respondent argued that appellant was not promoted due to his ineligibility
for promotion, not due to his race or national origin. Pursuant to County of Los
Angeles’s Civil Service Rule 11.01, appointments for vacant positions must be
made from the highest “band,” or group of candidates based on their application
scores and their Appraisal of Promotability. If there are less than five candidates in
the highest band, candidates from the next highest band are included. Thus,
candidates in the highest band and the next highest band are in a “reachable band”
considered for a promotion. Appellant applied for a position as a civil engineer in
2001, for positions as a civil engineer and senior civil engineer in 2003, and for a
position as a civil engineer in 2005, 2006, and 2008. However, respondent noted
that appellant was not within a “reachable band” based on his application scores
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and his appraisals for any of those positions at those times. Thus, appellant was
not promoted because he was ineligible under the civil service rules.
Moreover, respondent argued, nothing suggested that appellant’s race or
national origin was considered in the promotion decisions. Despite appellant’s
suggestion that his supervisors’ comments about his poor communication skills
were based on his accent, appellant conceded in his deposition that the comments
were about his written communication skills. Appellant also conceded he made
occasional typographical errors.
Respondent further argued that appellant’s scores for the L.A. Academy
leadership course were not relevant to the decision not to promote him. Appellant
admitted in his deposition that he had never shown his scores to his supervisors,
and Malacon declared under oath that the course was given on a pass/fail basis.
Finally, respondent argued that the evidence showed no discrimination
against appellant due to his race or national origin, as other African-American
employees and Nigerian-born applicants were promoted to civil engineer and other
superior positions during that same time period.
2. Failure to Provide Fair Work Environment
In its motion, respondent also argued that appellant was fairly treated in
terms of assigning assistants. From December 16, 2008 through August 31, 2009,
appellant supervised three civil engineering assistants. At the end of August 2009,
the engineering unit was reorganized and appellant was reassigned. Appellant
conceded in his deposition that his new work assignment was easier. He was
assigned one civil engineering assistant -- Duldulao -- and one student worker.
Other associate civil engineers in similarly situated positions within the operational
services division had the same number of assistants.
7
On October 19, 2009, the student worker became a permanent employee and
was reassigned. Appellant had a student worker vacancy for five months because
appellant failed to interview candidates for the opening. The vacancy did not last
longer than five months because appellant’s supervisors took the initiative to
interview the candidates and hire one.
As to Duldulao, respondent contended that the relationship between
appellant and Duldulao was friendly and productive at the beginning of the
assignment, but deteriorated over time. In his deposition, appellant acknowledged
knowing that Duldulao had a history of being a difficult employee, and telling his
supervisors that he could make Duldulao a good employee. Appellant was never
disciplined, was never suspended, and never had his pay decreased. In contrast,
Duldulao was suspended for 10 days without pay for his misbehavior regarding
appellant. In his deposition, appellant acknowledged he was unaware that
Duldulao had been disciplined.
According to respondent, appellant was asked to re-write his evaluation of
Duldulao because the evaluation was inappropriate and heavily focused on
Duldulao’s negative behaviors. Respondent asserted that it was within
management’s discretion to re-write an employee’s performance evaluation.
3. Retaliation
Finally, respondent argued that there was no retaliation for appellant’s filing
of the EEOC complaint. Respondent contended that appellant suffered no adverse
employment action, and that any adverse employment action he may have suffered
was not a result of appellant’s filing of the EEOC complaint. For example, the
failure to promote appellant could not have been causally related to the EEOC
complaint, as appellant last applied for a promotion in 2008, but did not file his
EEOC complaint until 2010. In addition, the written reprimand was factually
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supported, and appellant’s 2010 performance evaluation accurately reflected his
work performance. Moreover, respondent argued, being counseled in a “write-up,”
such as the written reprimand, with no accompanying suspension or punishment
did not rise to the level of an adverse employment action. Finally, respondent
noted, appellant was transferred to the design division (from the operational
services division) pursuant to his own request.
C. Appellant’s Opposition to Motion for Summary Judgment
Appellant opposed the motion for summary judgment. Appellant argued he
had exhausted his administrative remedies by filing complaints with DFEH and
receiving immediate right-to-sue letters on July 29, 2010. Appellant also
contended his claims were timely under the continuing violation doctrine. Finally,
appellant asserted that his own testimony, along with other evidence, created
triable issues of material fact with respect to all of his causes of action.
D. Ruling on Motion for Summary Judgment
After respondent filed a reply reiterating its arguments and asserting that
there were no triable issues of fact, the trial court issued a ruling on October 19,
2011. The court denied summary judgment, denied summary adjudication on the
fifth cause of action for retaliation, and granted summary adjudication with respect
to the remaining causes of action. The court found that the claims based upon
appellant’s failure to be promoted were untimely, as they were based on actions
that occurred outside the one-year statute of limitations. The court further found
that the continuing violation doctrine did not apply to appellant’s claims, as
appellant failed to show that his failure to be promoted was due to discriminatory
animus.
As to the remaining claims, except for the retaliation claim, the court ruled
that appellant failed to establish a prima facie case. The court found that appellant
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failed to show that other similarly situated engineers were assigned more than one
assistant. The court determined that appellant had not shown that his difficulties
with Duldulao were the result of discriminatory animus. The court also found that
appellant failed to show that Duldulao’s harassment was sufficiently pervasive, or
the result of discriminatory animus. Accordingly, the court granted summary
adjudication as to appellant’s causes of action for race discrimination, national
origin discrimination, harassment, and failure to prevent discrimination.
As to the fifth cause of action for retaliation, however, the court found the
timing of the written reprimand raised an inference of retaliatory animus, and
triable issues of fact precluded the grant of summary adjudication.
E. Appellant’s Motion to Reopen and Continue Discovery
Appellant filed his original complaint in August 2010 and his FAC in
February 2011. The cut-off for discovery was set for November 14, 2011, and trial
was initially set for December 12, 2011. After the court ruled on respondent’s
motion for summary judgment, the parties entered into settlement talks. Four days
before the trial was to start, the parties agreed to settle. The December 12, 2011
trial date was vacated when appellant’s counsel filed a notice of settlement.
However, appellant refused to sign the settlement agreement. Appellant’s counsel
then withdrew from representing him, and the trial court re-set trial on the
remaining retaliation claim for December 17, 2012.
On May 25, 2012, appellant, in propria persona, filed a motion to reopen and
continue discovery. He argued that he needed to reopen discovery because he
lacked knowledge of his case, and he wished to locate or uncover information
“previously missed by his ex-lawyer” that would substantiate his claims.
Respondent objected, arguing that appellant had shown no justification for
reopening discovery. Respondent noted the extensive discovery in the case, and
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argued that reopening discovery would impose a severe burden. On July 20, 2012,
the trial court denied appellant’s motion, finding no good cause to reopen
discovery.
F. Bench Trial on Retaliation Claim
On February 11 and 13, 2013, the court held a bench trial on appellant’s
retaliation claim. Appellant called witnesses, including human resources
1
employees Pak and Andrade-Guzman. Appellant also testified on his own behalf.
After appellant presented his case, respondent moved for nonsuit under Code of
Civil Procedure section 631.8. The court granted the motion, finding that the
evidence presented was insufficient to show a prima facie case of retaliation. The
court found that appellant failed to show that he was subjected to an adverse
employment action, as the conditions of appellant’s employment remained the
same. As the court observed, “his conditions of work haven’t changed. Mr.
Ajaelo has the same salary as he had previously. He has the same title. He has the
same position. He has transferred to a different department, but that transfer, he
requested to be transferred.” Additionally, the court found no causal connection
between the filing of appellant’s EEOC complaint and any subsequent action he
believed adversely affected him. As the court observed, much of appellant’s
difficulties at his workplace predated his filing of the EEOC complaint. Moreover,
although appellant was unhappy with how his supervisors responded to his
complaints about Duldulao, he failed to show that their conduct was based on
2
discriminatory animus, as opposed to a bureaucratic mindset. Finally, appellant’s
1
Although there were two days of trial, appellant designated only the second
day’s proceeding as part of the record on appeal.
2
As the court observed, much of appellant’s dissatisfaction appeared to stem
from the unwillingness of various higher level supervisors to “‘state exactly where
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supervisors backed him over Duldulao: appellant never changed his performance
evaluation of Duldulao, and Duldulao was suspended 10 days for his mistreatment
of appellant.
Judgment in favor of respondent and against appellant was entered February
27, 2013. Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
As an initial matter, we note that appellant’s opening brief is disorganized,
replete with typographical and grammatical errors, and difficult to understand. In
short, it violates California Rules of Court, rule 8.204, by failing to concisely and
clearly explain the factual and procedural background of the case. (See Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [self-represented party must follow
rules of appellate procedure].) We discern the following arguments from
appellant’s opening brief: first, that the trial court erred in granting summary
judgment by misinterpreting appellant’s facts and arguments; second, that the court
abused its discretion in denying appellant’s motion to reopen and continue
discovery, when it ignored his argument that “some critical documents Defendant
was supposed to submit [were] missing”; and third, on the retaliation claim, that
the court erred in entering a judgment of nonsuit, as the court incorrectly
determined that appellant “neither suffered nor sustained damages” as a result of
respondent’s tortious actions.
On appeal, the judgment of the trial court is presumed to be correct, and
appellant has the burden of demonstrating reversible error by an adequate record.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574; accord Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; Fladeboe v. American Isuzu Motors, Inc. (2007)
I went wrong and refer directly to my written instructions’” when responding to
appellant’s complaints concerning Duldulao.
12
150 Cal.App.4th 42, 58.) Moreover, any issue not adequately raised or supported
is deemed forfeited. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6;
accord Diamond Springs Lime Co. v. American River Constructors (1971)
16 Cal.App.3d 581, 608; see also Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 768 [“The appellate court is not required to search the record
on its own seeking error.”].)
A. The Trial Court Properly Granted Summary Adjudication on
Appellant’s First Four Causes of Action for Employment Discrimination.
“A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can prevail.
[Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally,
“the party moving for summary judgment bears an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.)
On appeal, appellant never addresses the trial court’s determination that his
discrimination claims for failure to promote were time-barred. (See Gov. Code,
§ 12960, subd. (d) [DFEH complaint must be filed within one year of last alleged
unlawful employment practice]; accord Romano v. Rockwell Internat., Inc. (1996)
14 Cal.4th 479, 492.) Appellant filed his DFEH complaints on July 29, 2010.
However, he last applied for a promotion in October 2008, which is outside the
13
limitations period. Thus, the trial court properly found appellant’s claims for
3
failure to promote were time-barred.
Appellant also fails to address the trial court’s determination that respondent
had no discriminatory intent in assigning appellant one engineer and one student
worker as assistants. The undisputed evidence shows that the change in the
number of assistants assigned to appellant resulted from a change in his work
duties -- a legitimate, nondiscriminatory business reason. Nothing suggests the
change resulted from discriminatory animus. Moreover, his complaint about being
assigned inadequate assistance is belied by his own delay in interviewing
candidates to fill the vacant student assistant position.
Likewise, nothing in the record suggests that the assignment of Duldulao to
appellant was the result of discriminatory animus. Appellant admitted he knew
3
Even were we to find the claims not time-barred, we would conclude that
appellant has not shown that his failure to be promoted was the result of
discriminatory animus. Appellant was not eligible for promotion, as he was not
within a “reachable band” of candidates for the promotions. To the extent he
argues that he was not placed within a “reachable band” as a result of
discrimination, no evidence supports that theory. Appellant suggests that his
accent led to an evaluation of poor communications skills, which prevented him
from being promoted. However, he conceded that he was criticized for poor
written communications skills.
For the first time on appeal, appellant argues that he received disparate
treatment due to his race or national origin, because Lee, who is of Asian descent,
was promoted despite making similar grammatical and typographical errors. As
this argument was raised for the first time on appeal, it is forfeited. Even were we
to consider the argument, the evidence cited (an e-mail from Lee) does not support
the assertion. The e-mail contains only a minor grammatical error, and appellant
himself conceded making typographical errors in his own work product. As to the
L.A. Academy leadership course, purporting to show his strong communication
skills, there is no evidence that the course tested written communication skills. In
any event, appellant conceded he never told his supervisors his scores for the
course.
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Duldulao had a reputation as a difficult employee, but told his supervisors that he
could turn Duldulao into a good employee. Nothing in the record demonstrates
that the deterioration in appellant’s relationship with his assistant was caused by
discriminatory animus on the part of appellant’s supervisors.
As to appellant’s harassment claim, he fails to address the court’s
determination that Duldulao’s insubordination did not constitute discriminatory
harassment, as no evidence showed it was sufficiently severe and pervasive, or
motivated by animus toward appellant’s race or national origin. Nor do the various
employment practices alleged by appellant in his complaint constitute
discriminatory harassment, as no evidence suggests those practices were motivated
by discriminatory animus.
Regarding appellant’s claim for failure to prevent discrimination and
harassment, appellant contends that respondent should have taken “immediate and
appropriate corrective action to end Mr. Duldulao’s acts of insubordination.” As
appellant was Duldulao’s immediate supervisor and had expressed his desire to
turn Duldulao into a good employee, it was reasonable for respondent to allow
appellant time to correct Duldulao. Moreover, Duldulao was eventually suspended
4
for 10 days without pay for his behavior toward appellant.
In sum, appellant has not met his burden on appeal to demonstrate that the
trial court erred in granting summary adjudication on his claims for race
4
Appellant contends that the delay in punishing Duldulao showed
discriminatory intent. He argues that when Lee had an issue with Duldulao,
“[a]pparently it was dealt with within two [m]onths.” However, no evidence
supports this time frame. The record citation shows that when Lee was Duldulao’s
supervisor, Duldulao was reprimanded for angrily leaving a meeting and forcefully
slamming the door on his way out. Nothing states when the reprimand occurred,
or otherwise describes the investigation into Duldulao’s behavior.
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discrimination, national origin discrimination, harassment, and failure to prevent
discrimination.
B. The Trial Court Properly Denied Appellant’s Motion to Reopen and
Continue Discovery
Appellant contends the trial court abused its discretion when it denied his
motion to reopen and continue discovery by ignoring his argument that respondent
had failed to produce relevant documents. Appellant cites nothing to support his
assertion that respondent failed to comply with its discovery duties. His
speculation does not constitute good cause to reopen discovery. The court thus
acted within its discretion to deny the motion.
C. The Trial Court Properly Granted a Motion for Nonsuit on
Appellant’s Retaliation Claim
Finally, appellant contends the trial court erred in granting respondent’s
motion for nonsuit, as the evidence showed he suffered adverse employment
actions. However, appellant does not challenge the court’s determination that no
adverse employment action was caused by his protected activity of filing the
EEOC complaint. That failure defeats his appeal.
Nevertheless, we address three employment actions -- the written reprimand,
the performance evaluation, and the transfer -- that occurred after he filed his
EEOC complaint. As the trial court acknowledged, the timing of these actions
suggested that they could be causally linked to appellant’s protected activity. Even
assuming, however, that the negative evaluations were undeserved, “mere oral or
written criticism . . . does not meet the definition of an adverse employment action
under FEHA,” unless accompanied by other adverse employment actions. (See
Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.) Thus, where an
employee is criticized, but his employer does nothing affirmative to effect a
16
material change in any term of condition of his employment, the employee cannot
establish a case of retaliation under FEHA. (Pinero v. Specialty Restaurants Corp.
(2005) 130 Cal.App.4th 635, 646; see McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 382-383, 393, 396 [insufficient
evidence supported retaliation claim where, although plaintiff was reprimanded,
her subsequent transfer was to a comparable position, where her title and pay were
not reduced, and she was transferred away from employees she believed to be
hostile to her].) Here, it is undisputed that appellant was not terminated, suspended
or disciplined as a result of his performance evaluation or his written reprimand.
Nor was his title or pay reduced. As to the transfer, appellant failed to show that it
was an adverse employment action, as he requested a transfer and no competent
evidence showed that the new position was not comparable. Thus, appellant
5
demonstrated no adverse employment action.
5
For the first time on appeal, appellant contends that the written reprimand,
which charged him with willful deceit, constituted libel. Because this contention
was raised for the first time on appeal, it is forfeited. Moreover, as appellant has
pled no cause of action for libel, it is not before us.
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DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
EDMON, J.*
__________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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