Walton v. Bd. of Trustees of City College of San Francisco CA1/4 ( 2023 )

Filed 5/19/23 Walton v. Bd. of Trustees of City College of San Francisco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR
TRUDY WALTON,
Plaintiff and Appellant, A164637
v. (City & County of San Francisco
BOARD OF TRUSTEES OF CITY Super. Ct. No. CGC-20-584880)
COLLEGE OF SAN FRANCISCO,
Defendant and Respondent.
Trudy Walton appeals from an adverse judgment following the trial
court’s Code of Civil Procedure section 437c determination that there are no
triable issues of material fact on her claims against the Board of Trustees of
City College of San Francisco (CCSF) for race and age discrimination and for
retaliation. (Gov. Code,1 § 12940, subds. (a) & (h) (Fair Employment and
Housing Act (FEHA)).) We shall affirm.
I. BACKGROUND
A. The Hiring of Walton as Vice Chancellor
Walton, an African-American woman, worked for CCSF as an
independent contractor pursuant to an Agreement for Professional Services
Unless otherwise specifically designated, statutory references are to
1
the Government Code.
1
from August 2017 through December 2017. Under that Agreement, Walton
served as the Interim Vice Chancellor of Student Development while CCSF
sought a permanent hire for the position. As of January 1, 2018, CCSF hired
Walton into the position as an employee, making her the permanent Vice
Chancellor of Student Development.
The Vice Chancellor of Student Development (later renamed Vice
Chancellor of Student Affairs) is the top administrator at CCSF for the
Student Development/Services Division. The person in this office reports to
the Chancellor and directly supervises two Associate Vice Chancellors.
Within the Student Development/Services Division are various deans,
including the Dean for Community Outreach, Enrollment & Student
Engagement, for Student Activities, for Financial Aid & Special Programs,
for Admissions & Records, and for Matriculation & Counseling. The job
description states that “The Vice Chancellor provides leadership and
supervision of administrators and staff working in . . . Student Development
areas serving credit and noncredit students at all District locations.”
B. The Holmberg Investigation
Shortly after Walton assumed the position of Vice Chancellor of
Student Development, CCSF received the first of a series of complaints about
her. In May 2018, an employee under her supervision, Julia Lingad, filed a
workers’ compensation claim. Lingad had worked for CCSF for over 20 years.
She reported “stress due to new supervisor” (Walton) who was “unduly hard
on her.” CCSF hired an outside firm, Holmberg and Associates, to
investigate the claim.
Holmberg took statements from seven witnesses and obtained
documents, including emails from Walton to Lingad. According to
Holmberg’s June 2018 report, Lingad stated that Walton assigned an
excessive workload, did not give her clear instructions on tasks, often forgot
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previous instructions, gave last-minute changes in instructions, and
spontaneously transferred Lingad to another work location to help
Dean Lidia Jenkins while hiring a younger, Caucasian woman to move into
Lingad’s workstation.
Other employees reported similar experiences. For example, Dean
Jenkins reported that Walton was “unclear about how to give directives, and
she is not very gracious when it comes to admitting she does not know
something,” and that Walton “dump[ed] tasks on [Ms. Lingad] at the last
minute, forcing [her] to scramble to try to get them done.”
One employee reported that Walton “has shortcomings with her oral
and written communication style,” “criticizes in a disrespectful manner with
harsh words and actions,” and is “abusive.” Another employee reported that
Walton “inappropriately reprimand[ed] subordinates, including [Ms. Lingad],
by email and then disseminate[d] those emails to others.” Dean Andrew King
reported that other subordinates “questioned Walton’s experience and
qualifications because no clear rationale seems to have been present for the
directives she has given.”
C. Walton’s Request To Increase Dr. Duke’s Salary
At the end of June 2018, when discussing cost of living adjustments for
administrators in the new fiscal year, Walton emailed then-Vice Chancellor
of Human Resources Dianna Gonzales and Associate Vice Chancellor of
Human Resources Clara Starr asking to discuss whether the two Associate
Vice Chancellors in her division, Dr. Shalamon Duke, an African-American
man, and Dr. Elizabeth Coria, a Latina woman, could be paid the same
salary.
In her email to Gonzalez and Starr, Walton stated as follows: “Can we
discuss the 2 AVCs being at the same step/salary since the intention was to
pay them on categorical funds. In addition, Dr. Duke’s 15 years of
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administration experience may justify his equal step/salary. I would like to
see if we can do this as we worked hard to secure these positions and pay
them with CAT funds.” Walton was aware that not all Associate Vice
Chancellors are paid the same, and knew of others with different salaries.
There was a follow-up phone conversation between Gonzalez, Starr, and
Walton, and in that call, Gonzalez denied the request, telling Walton CCSF
could not adjust Duke’s salary to match Coria’s.
D. The Meyers Nave Investigation
In July 2018, CCSF received another complaint from an employee in
Walton’s division, Rita Tuialu’ulu’u. Tuialu’ulu’u alleged, among other
things, that Walton discriminated against her because of her pregnancy.
Factually, Tuialu’ulu’u complained that Walton refused to mention her as a
coordinator for commencement activities (a project for which she had
substantial responsibilities the prior eight years) and that Walton told her
“ ‘we weren’t really sure as to what the makeup of the new committee would
look like, and also, because we didn’t know what your plans were,’ ” while
gesturing at Tuialu’ulu’u’s pregnant stomach.
CCSF retained the Meyers Nave law firm to investigate the complaint.
The investigator issued a final report in January 2019. The report concluded
Tuialu’ulu’u’s pregnancy discrimination claim was not substantiated, but
concluded Walton made “inappropriate,” “disrespectful,” and “derogatory”
statements to and about Tuialu’ulu’u because of her pregnancy, which
“illustrate[] poor decision-making and judgment.” The investigator also
noted that: (1) Walton “asserted that she had emails and other
documentation that would support her responses to the allegations” but
“never provided the emails despite being requested to do so”; and (2) Dean
King admitted Walton gave him a copy of Tuialu’ulu’u’s complaint before his
interview for the investigation.
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E. The Reassignment of Dean Jenkins
In October 2018, Associate Vice Chancellor Duke emailed
Vice Chancellor Gonzales advising he had reassigned Dean Jenkins and
intended to move her office from the Ocean Campus to a different campus.
He copied Walton, who supervised Duke and Jenkins, on the email. Gonzales
responded, stating, “[W]e need to discuss at your earliest convenience. . . .
This did not go through HR, nor Cabinet. The Chancellor’s been clear in the
past about making changes to the organization - administrative changes go
through Cabinet, at the very least, HR and then Chancellor.”
Soon after this October 2018 email exchange, Gonzales met with
Walton, Duke, and Associate Vice Chancellor Coria. During the meeting,
Gonzales instructed Walton to rescind the reassignment and return Dean
Jenkins to the Ocean Campus immediately. At a follow-up meeting in early
November, Chancellor Mark Rocha told Walton to “ ‘put the toothpaste back
in the tube’ ” and undo the organizational changes made related to Dean
Jenkins. He also reiterated there should be no organizational changes within
the Division of Student Services without review and approval by the
Chancellor, Chancellor’s cabinet, and Human Resources. Despite this
instruction, Walton never transferred Dean Jenkins back to the Ocean
Campus.
F. The Placement of Walton on Administrative Leave
In early December 2018, CCSF learned that Associate Vice Chancellor
Duke was the subject of sexual harassment allegations by a student at the
community college in Los Angeles where he worked before starting at CCSF.
Walton was a member of the committee that hired Duke. Walton had also
worked for the same community college district (Los Angeles Community
College District) at the same time as Duke.
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On December 11, 2018, CCSF placed Walton on paid administrative
leave while it determined how to move forward. Chancellor Rocha, Vice
Chancellor Gonzales, and Associate Vice Chancellor Clara Starr made the
decision together. The reason for the leave was the built-up concern about
Walton’s judgment and management, as reflected in the Holmberg and
Meyers Nave investigations, and in her insubordinate refusal to follow the
Chancellor’s instructions about organizational changes in her division. The
lawsuit against Duke was the “ ‘last straw’ ” for placing her on paid
administrative leave.
While Walton was on leave, her job duties were shared by several
CCSF employees, including Vice Chancellor Gonzales, Associate Vice
Chancellor Coria, and Vice Chancellor Tom Boegel.
G. The Cognetta/RPCC Contracts and the Sperry Investigation
In January 2018, Walton recommended John Cognetta be retained by
CCSF as an Interim Dean of Student Activities within her Division. Walton
and Cognetta had worked together at De Anza College. Cognetta worked as
an independent contractor under two consecutive contracts. The first was
between his wife, Freba Cognetta, and CCSF for a sum not to exceed $50,000,
in effect for a six-month term (January 2018 to June 2018). Walton signed
the contract on behalf of CCSF. The second was between Right Path College
Consulting (RPCC) and CCSF for a sum not to exceed $60,000, in effect for a
twelve-month term (July 2018 to June 2019). Freba Cognetta was identified
as an owner or officer of RPCC.
In early January 2019, halfway through the second contract and soon
after Walton was placed on paid administrative leave, Cognetta resigned. In
reviewing his contracts, CCSF administration questioned why Cognetta was
not a party to the contracts and why he was not an employee. Vice
Chancellor Gonzales grew concerned that Cognetta was improperly working
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as an independent contractor to avoid a reduction in his State Teachers
Retirement System (STRS) benefits. She did not want CCSF to be implicated
in compliance issues with STRS. She was also concerned that Cognetta had
billed $58,250 of the $60,000 allowed during the first half of the year-long
contract term.
Again, CCSF retained an outside investigator, the Law Office of
Alexander M. Sperry, to investigate these issues. Although Freba and John
Cognetta refused to speak to the investigator, Walton agreed to an interview.
Her interview was transcribed and provided with the investigator’s report.
In a May 2019 report, the investigator described Walton’s willingness to
provide information as “considerably limited.” For example, Walton stated
she did not recognize Cognetta’s second contract, despite emails between her
and Gonzales in June 2018 discussing signing Cognetta to another contract.
H. The Termination of Walton
Given the information gleaned from the three independent
investigations, plus Walton’s insubordination, CCSF concluded Walton did
“not possess the high level of professionalism, managerial skills, integrity or
judgment to continue to work effectively as Vice Chancellor of Student
Development.” On July 9, 2019, CCSF issued a Notice of Intended
Termination.
Sent by Starr in consultation with Rocha, Gonzales, and CCSF’s
general counsel, Steve Bruckman, the Notice of Intended Termination
provided examples of Walton’s “unfitness” to serve, particularly: (1) her
failure to obtain the Chancellor’s approval for organizational changes, which
was “not only insubordinate, but demonstrates a lack of willingness to work
collegially at the highest level of District management”; (2) her
“unprofessional, disrespectful, derogatory and inappropriate” conduct toward
District staff, which was “completely unacceptable for a high management
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level public employee”; and (3) her lack of cooperation, credibility, and
honesty in District investigations, which “demonstrates that you lack the
integrity required to serve as Vice Chancellor.”
The Notice of Intended Termination advised Walton that, although her
position did not entitle her to a Skelly2 hearing before termination, as a
courtesy CCSF would provide her with a “pre-disciplinary hearing before a
neutral decision-maker.” Walton was age 59 at the time she was terminated.
I. The Skelly Hearing and the Hiring of a Replacement
At the ensuing Skelly hearing in August 2019, the hearing officer was
JoLani Hironaka from the San Francisco Unified School District Human
Resources Department. Walton provided verbal statements and documents
for review at the hearing. After reviewing the evidence, Hironaka issued a
letter upholding the termination decision. She concluded that “reasonable
grounds exist” to believe the charges described in the Notice of Intended
Termination “support the proposed termination.”
After Walton’s termination, the position of Vice Chancellor of Student
Development was renamed Vice Chancellor of Student Affairs. Despite the
new name, the position remained substantially the same. The duties for Vice
Chancellor of Student Affairs are nearly identical to the duties for Vice
Chancellor of Student Development. Each is the “apex” administrator
position in the Student Development/Services Division, reporting directly to
the Chancellor, supervising six to eight deans, and overseeing a wide range of
student services.
In December 2020, CCSF hired Dr. Lisa Cooper Wilkins for Walton’s
position as the Vice Chancellor for Student Affairs. Dr. Cooper Wilkins is an
African-American woman who was age 53 when hired. She has a Ph.D. in
2 Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
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higher education administration and over two decades of experience in
college administration.
J. This Lawsuit and Summary Judgment for CCSF
Walton brought suit in this case in June 2020, initially asserting seven
causes of action against CCSF and Rocha. After a series of demurrers, Rocha
was dismissed and the only remaining causes of action, both alleged under
FEHA, were for discriminatory treatment based on race, gender, and age,
and for retaliation.
On CCSF’s motion for summary judgment, the court entertained
argument and made the following remarks: “I gotta say that I don’t think
I’ve ever seen such a comprehensive record for . . . an adverse employment
action as we’ve got in this case. [¶] We’ve got outside law firms doing
investigations; [¶] We have all kinds of allegations; [¶] We have -- some of
those allegations being found to be proven. [¶] It’s all set out here. I’m not
going to repeat it all. But there are about . . . six, seven, eight different
grounds for this termination.”
The court granted summary judgment for CCSF. The court noted
Walton’s opposition papers failed to address most of the issues raised by
CCSF’s motion and presented no evidence to support her various factual
assertions. The court found that Walton failed to present evidence that a
similarly situated employee of different race or gender was treated
differently, or that a younger person replaced her. The court also noted
Walton failed to produce evidence of pretext. As for retaliation, the court
found Walton’s question about equalizing Duke’s and Coria’s salaries might
give rise to an inference she was engaging in protected activity, but there was
no evidence that an adverse action was substantially motivated by retaliatory
animus.
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Following this summary judgment ruling, the court entered judgment
for CCSF, and Walton appealed.
II. DISCUSSION
A. Governing Legal Standards
“The standards for granting summary judgment are well settled and
easily delineated. A trial court must grant a motion for summary judgment
‘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).) When, as here, defendants move
for summary judgment, they can ‘meet their burden by demonstrating that “a
cause of action has no merit,” which they can do by showing that “[o]ne or
more elements of the cause of action cannot be separately established . . . .” ’ ”
(In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150.)
“The purpose of the law of summary judgment is to provide courts with
a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Procedurally, a moving defendant bears “ ‘an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of
material fact.’ ” (Borders Online v. State Bd. of Equalization (2005)
129 Cal.App.4th 1179, 1187.) Once the defendant has made a prima facie
showing, the plaintiff must then produce sufficient evidence to demonstrate a
triable issue of material fact. (Id. at pp. 1187–1188.)
Within this procedural framework, neither party may rely on the
allegations or denials in the pleadings, but must set forth specific facts
showing whether a triable issue of material fact exists. (Code Civ. Proc.,
§ 437c, subd. (p)(1), (2); see Horn v. Cushman & Wakefield Western, Inc.
(1999) 72 Cal.App.4th 798, 805.) A triable issue of material fact is not raised
10
by speculation or mere possibility. (Lyons v. Security Pacific Nat. Bank
(1995) 40 Cal.App.4th 1001, 1014.) Supporting and opposing affidavits must
be based on personal knowledge, must set forth admissible evidence, and
must demonstrate that the affiant is competent to testify to the matters
stated in them. (Code Civ. Proc., § 437c, subd. (d).)
“Our review of an order granting summary judgment is de novo, and we
must consider all the evidence set forth in the moving and opposing papers
except evidence to which objections were made and sustained. [Citation.]
Because this case comes before us after the trial court granted a motion for
summary judgment, we consider the evidence in the record before the trial
court when it ruled on that motion. We liberally construe the evidence in
support of the party opposing summary judgment [citation], and assess
whether the evidence would, if credited, permit the trier of fact to find in
favor of the party opposing summary judgment . . .” (Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109), “ ‘applying the
same legal standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law.’ ” (Lockhart v. County of Los Angeles (2007)
155 Cal.App.4th 289, 303.)
To state a prima facie case of race or age discrimination under
section 12940, subdivision (a), the plaintiff must offer evidence that (1) she
was a member of a protected class; (2) she was qualified for the position she
sought or was performing competently in the position she held; (3) she
suffered an adverse employment action; and (4) some other circumstance
suggests discriminatory motive. (Slatkin v. University of Redlands (2001)
88 Cal.App.4th 1147, 1158.) Discriminatory intent is a necessary element of
a racial or age discrimination claim under section 12940, subdivision (a). To
avoid summary judgment, the plaintiff must present “substantial responsive
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evidence” that the moving employer’s evidence is insufficient, or that “there is
a triable issue of fact material to the employer’s motive.” (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.)
A plaintiff alleging a racially motivated termination must typically
show the employer replaced her with someone who was not a member of the
same protected status. (Brown v. McLean (4th Cir. 1998) 159 F.3d 898, 905,
citing St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506.) Evidence
the employer replaced the plaintiff with a member of the same protected
status weighs against any inference of discrimination. (Begnal v. Canfield &
Associates, Inc. (2000) 78 Cal.App.4th 66, 76.)
Retaliation claims under section 12940, subdivision (h) are analyzed
using a similar but slightly different three-step test. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) First, the employee has
the initial burden to establish a prima facie case of retaliation. (Ibid.) If the
employee does so, the burden then shifts to the employer to produce sufficient
evidence that the action was taken for a legitimate, nonretaliatory reason.
(Ibid.) If the employer produces this evidence, the burden then shifts back to
the employee to demonstrate a triable issue of fact regarding whether the
employer’s ostensible nonretaliatory reasons for its actions were pretextual.
(Ibid.) The prima facie case for retaliation under section 12940,
subdivision (h) requires an employee to prove that: “(1) he or she engaged in
a ‘protected activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the protected
activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.)
On this step, a causal link may be inferred from circumstantial evidence that
the employer knew of the complaints and that the protected activity occurred
close in time to the adverse employment action. (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 69.)
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B. Analysis
At the threshold, we note that Walton fails to support her arguments
on appeal with adequate citations to the record. For virtually all the factual
assertions she makes in her opening brief, she points to nothing more than
the allegations of her first amended complaint (which is not even the
operative complaint) and her brief opposing summary judgment. For that
reason alone, her appeal fails. Even if we were inclined to overlook this basic
deficiency in Walton’s presentation on appeal and undertake our own review
of the summary judgment record, it appears to us there is a reason for
Walton’s cavalier treatment of the record: What she did contest in CCSF’s
statement of undisputed facts fails to contradict any of the reasons given in
CCSF’s Notice of Intended Termination, as sustained in the Skelly hearing.
Turning first to the discriminatory treatment claim, CCSF produced
ample evidence of undisputed, legitimate nondiscriminatory reasons for
terminating Walton, thus shifting the burden to her to show a triable issue of
material fact on pretext. The dispositive issue here turns on whether she
produced enough evidence to meet that burden. In opposition to summary
judgment Walton pointed to a few factual disputes surrounding some aspects
of CCSF’s version of the facts, largely on the strength of her own declaration.
For example, she claimed that Lingad was incompetent; that Meyers Nave
found Tuialu’ulu’u’s claim of pregnancy discrimination unsubstantiated; that
she had no knowledge of the harassment charges levelled at Dr. Duke; that
Gonzalez knew of the Cognetta/RPCC contracts; and that in any event
Cognetta did what he was hired to do.
Granting all of that, we conclude that none of these disputes is
material. Walton’s theory of racial animus is that she was placed on paid
administrative leave three days after discussing with Gonzales and
Bruckman sexual harassment allegations against Dr. Duke stemming from
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his employment with the Los Angeles Community College District. Drawing
an inference from the timing alone, Walton argues CCSF tried to hold her
responsible for Duke’s actions simply because they had both worked at
LACCD and she and Duke are both African-American.3
Dr. Duke was involved in one of the most significant incidents leading
up to Walton’s compelled leave and ultimately to her termination—her
insubordination in refusing to rescind the transfer of Dr. Jenkins. There is
no evidence that anyone blamed her for Duke’s alleged misconduct or that the
race of the two of them had anything to do with the discipline meted out to
her. Her subjective belief about what motivated CCSF to cite the allegations
against him as the “ ‘last straw’ ” in her case is speculative. (King v. United
Parcel Service, Inc., supra, 152 Cal.App.4th at pp. 433–434 [“plaintiff ’s
evidence must relate to the motivation of the decision makers to prove, by
nonspeculative evidence, an actual causal link between prohibited motivation
and termination”].)
Walton insists she is entitled to argue to a jury that there is a causal
connection between CCSF’s alleged racial animus and the decision to punish
her, for one reason: Temporal proximity. But courts are “hesitant to find
pretext or discrimination on temporal proximity alone,” instead looking for
“proximity in conjunction with other evidence.” (Sprenger v. Federal Home
3 At oral argument, Walton’s counsel argued that, under Education
Code section 87623, subdivision (a), CCSF should have provided Walton with
reasons before placing her on administrative leave. Although Walton made
brief reference to this statute in her appellate briefs, she did not develop a
separate argument on the point. In any event, any deficiency in the notice of
administrative leave does not alter our conclusion that, based on the record
as a whole, there is no triable issue of fact as to Walton’s discrimination and
retaliation claims.
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Loan Bank of Des Moines (8th Cir. 2001) 253 F.3d 1106, 1114.)4 Not only is
there no other evidence of discriminatory intent here, but CCSF’s concern
about Walton’s performance before the discussion about Duke’s sexual
harassment allegations “undercuts the significance of the temporal
proximity.” (Smith v. Allen Health Systems, Inc. (8th Cir. 2002) 302 F.3d 827,
834.)
In Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 334, 353, a
FEHA disability discrimination case that cites both Sprenger and Smith, the
court explained that, while temporal proximity, by itself, could establish a
prima facie case of discrimination or retaliation, “temporal proximity alone is
not sufficient to raise a triable issue as to pretext once the employer has
offered evidence of a legitimate, nondiscriminatory reason for the
termination. [Citations.] This is especially so where the employer raised
questions about the employee’s performance before he disclosed his
symptoms, and the subsequent termination was based on those performance
issues.” (Id. at p. 353.)
The cases Walton relies upon do not hold otherwise. Allen v. Iranon
(9th Cir. 2002) 283 F.3d 1070 and Coszalter v. City of Salem (9th Cir. 2003)
320 F.3d 968 are not discrimination cases; they are free speech retaliation
cases alleging a violation of the First Amendment. They explain a retaliatory
motive might be established if the proximity in time logically supports an
inference the plaintiff was terminated in retaliation for his speech.
(Coszalter, at p. 977.) But even in the retaliation context, the Ninth Circuit
cautioned that elapsed time cannot be considered “in isolation from other
“Because of the similarity between state and federal employment
4
discrimination laws, California courts look to pertinent federal precedent
when applying our own statutes.” (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 354.)
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factors” (like the prior performance issues here) and “that a specified time
period cannot be a mechanically applied criterion. A rule that any period
over a certain time is per se too long (or, conversely, a rule that any period
under a certain time is per se short enough) would be unrealistically
simplistic.” (Id. at pp. 977–978.)
To rebut a presumption of unlawful motive created by a prima facie
case of discrimination (or retaliation), the employer must show a “legitimate”
reason for its actions. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at
p. 356.) “ ‘[L]egitimate’ ” reasons are “reasons that are facially unrelated to
prohibited bias, and which, if true, would thus preclude a finding of
discrimination.” (Id. at p. 358.) The reasons need not be wise or correct; they
may even be “ ‘foolish or trivial or baseless,’ ” so long as they are “ ‘honestly
believed.’ ” (Ibid. (citing cases).) The issue is whether discriminatory animus
motivated the employer, not whether the employer is “ ‘wise, shrewd,
prudent, or competent.’ ” (Ibid.)
As the trial court noted, CCSF had many legitimate, nondiscriminatory
reasons to place Walton on paid administrative leave and then terminate her
employment, and most of those reasons are undisputed. The reasons were
described in the Notice of Intended Termination. CCSF knew first-hand
about Walton’s insubordinate refusal to follow Chancellor Rocha’s direction
on organizational changes. And all three investigations reported a pattern of
abusive, unprofessional, insubordinate, and deceptive conduct for nearly a
year before CCSF acted. CCSF had no reason to doubt these investigative
reports, and Walton offers no evidence CCSF did not rely on them in good
faith. An independent Skelly officer even reviewed the evidence and agreed
the reasons identified in the Notice of Intended Termination were reasonable
grounds for termination.
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Walton devotes but two paragraphs to her age discrimination claim. To
show a prima facie case of age discrimination under FEHA, a plaintiff must
present evidence she “(1) is over the age of 40; (2) suffered an adverse
employment action; (3) was performing satisfactorily at the time of the
adverse action; and (4) suffered the adverse action under circumstances that
give rise to an inference of unlawful discrimination, i.e., evidence that the
plaintiff was replaced by someone significantly younger than the plaintiff.”
(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)
Walton failed to meet these prima facie requirements because she was
replaced by Dr. Cooper Wilkins who, at 53 when hired, is only a few years
younger than Walton (59 when terminated). Walton’s arguments that Coria
was her real replacement do not persuade. From Walton’s administrative
leave to the time Dr. Cooper Wilkins was hired, “the duties of [Walton’s]
position were shared on an interim and temporary basis by several CCSF
administrators,” including Vice Chancellor Gonzales, Associate Vice
Chancellor Coria, and Vice Chancellor Tom Boegel. This is undisputed. In
any event, even if Walton had presented a prima facie case of age
discrimination, CCSF (as outlined above) presented ample evidence of
legitimate, nondiscriminatory reasons for her placement on administrative
leave and subsequent termination.
Walton also argues that an early positive evaluation of her performance
given to her by Chancellor Rocha must mean later employment decisions
were made because of her age. But here again, the time frame is a problem
for her. Only six months had elapsed between the date the evaluation was
conducted (June 2018) and the date Walton was placed on administrative
leave (December 2018), and only 18 months had elapsed between the
evaluation and her termination (November 2019). Also, the evaluation period
only covered July 1, 2017 to May 11, 2018—before any of the independent
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investigation reports had been issued and before she defied Chancellor
Rocha’s prohibition on administrative reorganizations. Walton offers no
evidence Rocha was aware of any ongoing investigation or allegations levied
against her when she was evaluated.
As for retaliation, the problem for Walton on this claim is that she fails
to show her compelled administrative leave and subsequent termination were
connected to “protected activity” on her part. As relevant here, “protected
activity” is an action taken by an employee to oppose an employment practice
made unlawful by FEHA. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Walton
did make a request to equalize the salaries of Dr. Duke and others, but she
said nothing about the salary disparity she sought to address being unlawful.
An employee need not use specific “ ‘buzzwords’ ” when opposing perceived
discrimination, but the words used must “ ‘sufficiently convey the employee’s
reasonable concerns that the employer has acted or is acting in an unlawful
discriminatory manner.’ ” (Id. at p. 1047.) There can be no opposition to
unlawful activity if the employee does not articulate a belief the employer’s
conduct is unlawful. Complaints “about personal grievances or vague or
conclusory remarks that fail to put an employer on notice as to what conduct
it should investigate” are not protected activity. (Ibid.)
For example, in Barber v. CSX Distribution Services (3d Cir. 1995)
68 F.3d 694, 702, the court held a letter to an employer’s human resources
department was not protected activity because it did not clearly complain
about age discrimination. The letter stated: “In view of my 21 years of
experience in this field (14 years direct sales and 7 years customer service),
I am quite puzzled as to why the position was awarded to a less qualified
individual. [¶] I would greatly appreciate your response as to why I was not
awarded this job.” (Id. at p. 697.) The court found the letter too vague to
constitute opposition to an unlawful employment practice because it neither
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“explicitly [n]or implicitly” alleged a protected characteristic was the basis for
the adverse employment action. (Id. at p. 702.) “A general complaint of
unfair treatment does not translate into a charge of illegal . . .
discrimination.” (Ibid.)
CCSF cites to various other examples. (See, e.g., Burch v. Regents of
University of California (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1116, 1126–
1127, citing Barber [holding coach’s “positive advocacy” challenging the
University’s efforts to phase out women’s participation in wrestling program
did not equal a complaint of discrimination]; Jurado v. Eleven–Fifty Corp.
(9th Cir. 1987) 813 F.2d 1406, 1411–1412 [holding plaintiff did not establish
he engaged in protected activity when he complained about the impact that
an English-only rule would have on his reputation as a radio personality and
only alleged this same conduct was discriminatory after he was fired].)
Accordingly, we see no error in the trial court’s conclusion that, on this
record, Walton failed to raise a triable issue of fact on her FEHA claims.
III. DISPOSITION
The judgment is affirmed. Costs on appeal shall be awarded to CCSF.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
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