Redondo v. County of Los Angeles CA2/2 ( 2023 )

Filed 12/29/23 Redondo v. County of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CYNTHIA REDONDO et al., B323026, consolidated with
B324398
Plaintiffs and
Appellants, (Los Angeles County
Super. Ct. No.
v. 21STCV07421)
COUNTY OF LOS ANGELES,
Defendant and
Respondent.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, William F. Fahey, Judge.
Affirmed.
Alexander Morrison + Fehr, Tracy L. Fehr; Romero Law,
Alan Romero and Lucas Rowe for Plaintiffs and Appellants.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz & Su,
Avi Burkwitz, Sherry Gregorio, Gayane Muradyan and Jade
Yang for Defendant and Respondent.
******
Three female Los Angeles County Sheriff’s deputies alleged
they were subjected to unchecked sexual harassment,
discrimination, retaliation, and intimidation by their coworkers
at the courthouse where they were stationed. The trial court
dismissed all of the deputies’ claims on summary judgment and
then granted the employer attorney fees because the deputies
persisted in pressing their lawsuit even after it became obvious
there was “no evidence” supporting certain key elements of their
claims. We independently agree with the grant of summary
judgment and find no abuse of discretion in the award of fees.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Plaintiffs’ employment
Cynthia Redondo (Redondo), Daisy Funes (Funes), and
Jennifer Khanna (Khanna) (collectively, plaintiffs) are all
deputies with the Los Angeles County Sheriff’s Department (the
Department) and, at the times pertinent to the claims in this
case, worked at the Norwalk Courthouse (the Courthouse).
Khanna began her employment with the Department in January
2001 and was assigned to the Courthouse in September 2016.
Funes began her employment with the Department in April 2012
and was assigned to the Courthouse in June 2017. Redondo
began her employment with the Department in October 2007 and
2
was assigned to the Courthouse in April 2020. Above plaintiffs in
the chain of command was a sergeant and, above him, a
lieutenant. Plaintiffs enjoyed their work environment at the
Courthouse until the fall of 2019, when Daniel Genao (Genao)
and Dolores Guerrero (Guerrero) were transferred to that
location.
B. Conduct by Genao
Genao was assigned to the Courthouse at the end of 2019.
1. Inappropriate sexual conduct
Genao began making sexually inappropriate comments in
January 2020. In front of Funes and Khanna, he made crude
remarks about the judge for whom he served as a bailiff. Funes
and Khanna also overheard Genao say that he was “confus[ed]”
by Guerrero’s sexuality because, though she is a lesbian, she
would look at Genao as if she wanted him to “grab her against
the wall and just fuck her.”
While in the first-floor lockup of the Courthouse—where
inmates are held pending their hearings—Genao would make
bodily movements and loud noises as if he was having an orgasm.
Funes and Redondo witnessed this offensive conduct a few times;
Khanna did not personally witness it but was uncomfortable
upon later learning it took place.
2. Treatment of female deputies
Plaintiffs recounted other conduct by Genao that they
found offensive. Among other things, Genao:
● once rejected assistance from Redondo, causing her to
feel “belittled”;
● once contradicted the orders Funes had made to
inmates Funes was transporting from lockup to the courtrooms;
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● mocked Funes on one occasion for obeying COVID-19
social distancing rules on an elevator, and on a different occasion
for not participating with other deputies in monitoring a protest
because she had a doctor’s appointment;
● once yelled at Redondo for completing one of Genao’s
tasks for him;
● told other deputies that he “lost the little respect” he
had for Khanna after she voiced disagreement with a patrol
assignment;
● once “threw a tantrum” and used profanity in
referring to Khanna after she moved inmates to the first-floor
lockup; and
● once criticized a different female deputy for making a
mistake and stating that she is “stupid” and “needs to retire.”
Plaintiffs felt that Genao’s treatment of them and other female
deputies was different than how he treated their male
counterparts. His conduct also appeared to be infectious; a
different male deputy called Funes a “fucking bitch” during a
debate about politics, and another told her, “[Y]eah motherfucker,
there’s a new sheriff in town and I suggest that you get the fuck
out of here.”
3. Plaintiff’s report and the Department’s response
On June 19, 2020, plaintiffs together went to their
sergeant’s office to report Genao’s conduct. The sergeant
questioned plaintiffs’ allegations and initially attempted to
explain away Genao’s behavior, suggesting that Genao was just
having a “bad day” and that plaintiffs should have first discussed
their issues with Genao directly. As required, however, the
sergeant referred plaintiffs’ complaint to the County Office of
Equity, which launched an investigation.
4
A couple of days after they reported Genao, plaintiffs’
lieutenant put out radio calls to each of them to come to his office
for a meeting, at which he instructed them to submit written
statements summarizing their allegations. Plaintiffs prepared
their statements on the bank of computers in the Department’s
office. The lieutenant separated plaintiffs from Genao while the
investigation was pending: Specifically, Genao was ordered to
remain in the first-floor lockup of the Courthouse, and plaintiffs
were ordered to not go to that location, although plaintiffs still
occasionally encountered Genao in the Courthouse. To further
“defuse the situation,” the lieutenant told Genao about plaintiffs’
report. The separation order lasted approximately one month.
After completing its investigation, the Department
transferred Genao to a different courthouse (and hence away
from plaintiffs).
C. Conduct by Guerrero
Guerrero was assigned to the Courthouse in August 2019.
1. Slashing of Khanna’s tire
On June 23, 2020, Khanna turned on her car to drive home
at the end of her shift, and the tire pressure light turned on.
Khanna kicked the tires, but did not see anything wrong. She
drove home. By the time she arrived, the tire was flat, so
Khanna’s husband took the car to a tire shop, where a “workman”
informed him that the tire had been slashed. Khanna is “not a
car person,” but concluded that the tire had been slashed by a
blade and further concluded that Guerrero was responsible
because (1) Guerrero was friends with Genao and showed
“resent[ment]” for Khanna’s report about Genao by “roll[ing] her
eyes” and “scowl[ing]” at Khanna; and (2) Guerrero had a “daily
5
routine” of exercising in the parking structure during a late lunch
break that hardly anyone else shared.
The Department investigated, and issued an incident
report regarding the damage to Khanna’s vehicle, but found no
evidence that any Department employee was responsible.
2. Interaction with Funes
Funes and Guerrero did not have a pleasant working
relationship. According to Funes, Guerrero would “intentionally”
make mistakes on paperwork to make Funes’s job harder and to
“annoy” Funes, and would “single . . . out” Funes with
“antagonistic” orders over the radio system. Sometimes Guerrero
would bring pastries for all of the deputies except Funes, noting
that Guerrero only brings them for her “friends”; Guerrero also
organized a potluck despite social distancing rules and “excluded”
Funes, Redondo, and Khanna. Guerrero would also “mad dog[]”
Funes. Funes complained about Guerrero to her supervisors, and
Guerrero was “counseled” about professionalism in the
workplace. Funes also reported Guerrero to the sergeant and
lieutenant for coming to work with a hangover and taking a nap
on the clock.
In September 2021, Funes did a pat-down search of an
inmate and found no contraband. When Guerrero later searched
the same inmate, Guerrero found drugs. When a senior deputy
confronted Funes about not finding the drugs, Funes argued with
the senior deputy that it was not her job to conduct a thorough
search. When Guerrero got fed up waiting for Funes to finish
arguing with the senior deputy, Guerrero dropped the drugs into
an open pocket on Funes’s uniform, said, “[H]ere are your drugs”
to be booked into evidence, and walked away.
6
D. Khanna’s vacation request for religious
observance
Khanna practices Judaism and attends temple services for
the holiest Jewish holidays. Khanna’s requests for time off to
observe the Passover holiday, as well as other Jewish holidays,
were consistently granted by the Department for the 10 to 15
years prior to 2020. The Department initially granted her
requests to use accrued vacation time on April 9, 2020 and April
16, 2020 to observe the Passover holiday, but her requests were
subsequently denied when the Department issued a policy on
March 12, 2020 cancelling “all vacations” “in light of the threat
of” COVID-19. Khanna used accrued sick time instead to observe
Passover.
II. Procedural Background
A. Plaintiffs’ complaint
Plaintiffs sued the County of Los Angeles (the County) on
February 24, 2021. In the operative first amended complaint, all
three plaintiffs alleged that Genao’s conduct and the
Department’s response gave rise to causes of action for (1)
sex/gender harassment under the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.); (2) discrimination on the
basis of sex/gender under FEHA; (3) retaliation under FEHA and
Labor Code section 1102.5; and (4) failure to prevent
discrimination, harassment and retaliation under FEHA.
Khanna also asserted separate causes of action for (1) religious
creed discrimination under FEHA, based on the denial of her
vacation request to observe Passover; and (2) violations of the
Tom Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1 et seq.)
and the Ralph Civil Rights Act of 1976 (Ralph Act) (id., § 51.7 et
seq.), based on the damage to her tire.
7
B. The County’s motion for summary judgment
The County moved for summary judgment. After further
briefing, and an initial ruling by the trial court granting plaintiffs
an opportunity to cure the deficiencies in their over 300-page
separate statement, the court granted the County’s motion.
The trial court concluded that plaintiffs “fail[ed] to present
competent evidence showing that there are material disputed
issues to be tried.” (Italics in original.) The court ruled that
plaintiffs’ sex/gender harassment claim failed as a matter of law
because the conduct alleged as harassment was committed by a
nonsupervisory coworker, and on the undisputed facts, was not
attributable to the Department. The court ruled that plaintiffs’
two claims for retaliation as well as their claim for sex/gender
discrimination failed as a matter of law because the undisputed
facts established that they did not suffer any adverse
employment action. The court rejected Khanna’s separate claims
because the undisputed facts showed that the Department did
accommodate her religious observance and because Khanna’s
belief that Guerrero or any other deputy was responsible for
slashing her tire was “mere speculation” based entirely on
“inadmissible hearsay.” The court rejected plaintiffs’ failure to
prevent FEHA harassment, discrimination and retaliation claims
as wholly derivative of their other, unsuccessful FEHA claims.
C. The County’s motion for attorney fees
On August 26, 2022, the County filed a motion seeking
$28,215 in attorney fees incurred in connection with the
summary judgment motion and trial preparation.1 After further
1 The County also requested $40,989.84 in costs, but the trial
court denied that request as untimely and the County does not
challenge that ruling on appeal.
8
briefing and a hearing, the trial court issued a ruling granting
the County’s motion.
D. Plaintiffs’ appeals
Plaintiffs appealed the trial court’s judgment for the
County and the trial court’s attorney fee order. We consolidated
the two appeals.
DISCUSSION
Plaintiffs argue that the trial court erred in granting
summary judgment on their claims and awarding the County
attorney fees.
I. Ruling on Summary Judgment
Summary judgment is appropriate when the moving party
shows “[it] is entitled to a judgment as a matter of law” (Code
Civ. Proc., § 437c, subd. (c)) because, among other things, the
nonmoving party (here, plaintiffs) cannot establish “[o]ne or more
of the elements of the[ir] cause of action” (id., subds. (o)(1) &
(p)(2)). (QDOS, Inc. v. Signature Financial, LLC (2017) 17
Cal.App.5th 990, 998.) In this way, summary judgment serves as
“‘a vehicle to weed the judicial system of an unmeritorious case.’”
(Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 299.)
Summary judgment should be denied only when there are
“genuine” or “triable” issues of fact to be resolved at trial—that is,
when “the evidence would allow a reasonable trier of fact to find .
. . in favor of the party opposing the [summary judgment]
motion.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th
830, 860, (Serri), citing Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 845; Code Civ. Proc., § 437c, subds. (f)(1), (o)(1) &
(p)(2).) In applying this standard, we independently review the
evidence before the trial court except the evidence to which an
objection was made and sustained (and when that evidentiary
9
ruling is not challenged on appeal), and we view that evidence in
the light most favorable to the nonmoving party, “resolving . . .
any doubts” against summary judgment. (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 415; Wilson v. 21st Century
Ins. Co. (2007) 42 Cal.4th 713, 716-717; Roe v. McDonald’s Corp.
(2005) 129 Cal.App.4th 1107, 1113 [where party opposing
summary judgment does not challenge trial court’s evidentiary
ruling to evidence, we consider that evidence “‘“‘properly
excluded’”’”].) Because our review is de novo, our focus is the trial
court’s ruling, and we may therefore affirm on any ground
regardless of whether the trial court relied on that ground.
(Burgueno v. Regents of University of California (2015) 243
Cal.App.4th 1052, 1057.)
As a threshold matter, plaintiffs assert that the trial court
unfairly enforced the procedural requirements attendant to
motions for summary judgment by, in their view, unfairly
criticizing them for filing a 293-page response to the County’s
separate statement of undisputed facts that included an
additional 519 new factual assertions and that was riddled with
procedural errors. (See Cal. Rules of Court, rule 3.1350(f)(2)
[setting forth requirements of opposition separate statement];
Code Civ. Proc., § 437c, subd. (b)(3) [failure to comply with
requirements for opposition separate statement “may constitute a
sufficient ground, in the court’s discretion, for granting” summary
judgment].) We reject this assertion for two reasons. First, any
defects in the court’s procedural analysis are irrelevant because
we are engaging in de novo review by looking at the admissible
evidence in the record rather than whether—and how—that
evidence was set forth in the parties’ separate statements.
Second, the trial court did not commit any error that affected its
10
ruling on the merits because the court also looked at the evidence
rather than focusing on the staggeringly inefficient way in which
plaintiffs chose to summarize it. (See Collins v. Hertz Corp.
(2006) 144 Cal.App.4th 64, 72-73 [purpose of separate statement
defeated where trial court “is forced to wade through stacks of
documents” and “cull through the arguments” to determine “what
remains at issue”].)
A. Sex/gender harassment claim (by all plaintiffs)
To prevail on a claim for sexual harassment under FEHA, a
plaintiff must establish that (1) the employer subjected the
plaintiff to verbal or physical contact of a sexual nature; (2) the
conduct was unwelcome; and (3) the conduct was sufficiently
“severe or pervasive” to alter the terms and conditions of the
plaintiff’s employment, thereby creating an abusive working
environment. (Beltran v. Hard Rock Hotel Licensing, Inc. (Dec. 5,
2023, G062736) __ Cal.App.5th __ [2023 Cal.App.Lexis 941];
Sheffield v. Los Angeles County (2003) 109 Cal.App.4th 153, 160-
161; Lyle v. Warner Brothers Television Productions (2006) 38
Cal.4th 264, 283 (Lyle); Hughes v. Pair (2009) 46 Cal.4th 1035,
1045; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121, 130; see also Gov. Code, §§ 12940, subd. (j), 12923.)2
2 Because, as explained below, the resolution of plaintiffs’
claims turns on whether the harassment is attributable to the
employer—and not on whether the harassment itself is
sufficiently “severe or pervasive” to constitute harassment—our
Legislature’s recent clarification of the standard of what
constitutes harassment and its general pronouncement that
“[h]arassment cases are rarely appropriate for disposition on
summary judgment” is not implicated in this case (Gov. Code, §
12923, subds. (b) & (e)); we are effectively assuming plaintiffs
were subjected to unwelcomed conduct of a sexual nature by
11
Whether the employer has subjected the plaintiff-employee to
harassment—and thus can be liable for that harassment—
depends on who is doing the harassment: If the harasser is a
“supervisor,” the employer is strictly liable for any conduct by
that individual; if the harasser is not a supervisor, the employer
is liable only if the employer (1) “knew or should have known of
the harassing conduct,” and (2) “failed to take immediate and
appropriate corrective action.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1040-1041; Chapman v.
Enos (2004) 116 Cal.App.4th 920, 928; see also Gov. Code, §
12940, subd. (j)(1).)
With respect to the second element of “immediate and
appropriate corrective action,” an employer avoids liability for
sexual harassment by a nonsupervisory co-employee under FEHA
by taking “prompt, reasonable and efficacious remedial action” in
response to an employee’s harassment complaint. (Mathieu v.
Norrell Corp. (2004) 115 Cal.App.4th 1174, 1185.) “The
employer’s obligation to take prompt corrective action requires (1)
that temporary steps be taken to deal with the situation while
the employer determines whether the complaint is justified and
(2) that permanent remedial steps be implemented by the
employer to prevent future harassment once the investigation is
completed.” (Bradley v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1612, 1630 (Bradley).)
“The most significant immediate measure an employer can take
in response to a sexual harassment complaint is to launch a
prompt investigation to determine whether the complaint is
Genao that was severe and pervasive, and focus entirely on
examining whether that harassment is attributable to the
County.
12
justified.” (Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1193;
Mathieu, at p. 1185.) To fulfill this function, the investigation
need not be “perfect”; it is enough that the investigation is a
“reasonable” one that is neither “rigged to reach a pre-determined
conclusion” nor “otherwise conducted in bad faith.” (Swenson, at
pp. 1197, 1193, 1196.) Thus, “when harassment is by a
nonsupervisory employee, an employer’s liability is predicated
not on the conduct itself, but on the employer’s response once it
learns of the conduct.” (Bradley, at p. 1631.)
Both in their operative complaint and on appeal, plaintiffs
base their FEHA harassment claim solely on Genao’s conduct.
Because it is undisputed that Genao is not a supervisor,
plaintiffs’ FEHA harassment claim against the County turns on
whether the Department (1) knew or should have known of
Genao’s conduct, and (2) failed to take “immediate and
appropriate action” once it learned of that conduct.
The undisputed facts establish both that (1) the
Department had no knowledge of Genao’s conduct until plaintiffs
reported it in June 2020, and (2) the Department thereafter took
“immediate and appropriate action” in response to plaintiffs’
report. With regard to the second point, after plaintiffs reported
Genao’s conduct to their sergeant, the sergeant reported it to the
lieutenant, who then referred the complaint to the County Office
of Equity; while the Office of Equity investigated plaintiffs’
report, the Department took steps to immediately halt any
further harassment by physically separating Genao and plaintiffs
into different parts of the Courthouse; and once the Office of
Equity completed its investigation, the Department
“involuntarily transferred” Genao to a different courthouse,
thereby eliminating the danger of further harassment by Genao.
13
In sum, the Department’s response to plaintiffs’ complaints was
reasonable as a matter of law, and thus precludes liability
against the County.
Plaintiffs raise several arguments, only four of which speak
to the Department’s liability for harassment inflicted by a
nonsupervisory co-employee.
First, plaintiffs argue that the sergeant was “openly
antagonistic” toward plaintiffs when they initially reported
Genao’s misconduct, the sergeant did not take “real notes” during
the June 2020 meeting, and the lieutenant at one point thereafter
put his finger to his lips to “shush” Redondo. However, any
factual dispute about whether the sergeant and lieutenant
engaged in this conduct is not material because it is undisputed
that, despite any inappropriate behavior that occurred while
receiving plaintiffs’ report, the two supervisors did alert the
Office of Equity, which conducted an investigation and took
disciplinary action against the offender. (Accord, Banks v.
Dominican College (1995) 35 Cal.App.4th 1545, 1551 (Banks)
[plaintiff “may not avoid summary judgment by attempting to
generate disputes of fact as to issues which are not material to
the legal theories and claims in issue”].)
Second, plaintiffs argue that their privacy rights were
violated when the lieutenant called them over the common radio
channel, directed them to prepare written statements on
communal computers, and disclosed their complaint to Genao
despite a County policy to keep reports of misconduct anonymous.
These facts are not material because plaintiffs fail to draw any
connection between them and the appropriateness of the
Department’s corrective action. (Banks, supra, 35 Cal.App.4th at
p. 1551.) Plaintiffs’ theory that the radio call coupled with their
14
use of the communal computers revealed to fellow deputies that
plaintiffs had made a complaint about Genao is based on mere
speculation; there is no evidence that the radio call referred
specifically to their complaint of misconduct, no evidence that
anyone saw or figured out what they were typing on the
computers, and no evidence that anyone else “connected the dots”
as plaintiffs now speculate they must have. (Santa Clara Valley
Water Dist. v. Century Indemnity Co. (2023) 89 Cal.App.5th 1016,
1035 [party opposing summary judgment may not rely on
inferences “‘derived from speculation, conjecture, imagination, or
guesswork’”].) Plaintiffs’ assertion that the County violated its
own policy by letting Genao know about their report is
unsupported by any admissible evidence because (1) the trial
court denied their request to judicially notice the policy, and they
have not challenged that ruling on appeal; and (2) the only other
evidence of the policy is their own recollection of the allegedly
written policy, which is inadmissible hearsay. Indeed, the sole
admissible evidence is Redondo’s deposition testimony that
complaints are “usually” not disclosed to the subject; it is
therefore undisputed that disclosure is sometimes warranted and
that the disclosure here was made to “defuse” the situation, such
that there was no violation of plaintiffs’ privacy rights.
Third, plaintiffs argue that the sergeant’s attempts to
discourage them from pursuing a complaint against Genao
combined with the lieutenant’s disregard for their privacy
establish ratification by the County of the harassment. To be
sure, an employer’s “failure to intervene effectively to prevent or
end sexual harassment in the workplace by a fellow employee can
amount to a ratification of the misconduct for which the employer
may be held liable.” (Birschtein v. New United Motor
15
Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1007; Thomas v.
Regents of University of California (Nov. 29, 2023, A164550) __
Cal.App.5th __ [2023 Cal.App.Lexis 925].) But here, the sergeant
and lieutenant did intervene to end the sexual harassment by
taking corrective action.
Fourth, plaintiffs argue that the Department’s
investigation and corrective action was “ineffectual” because
plaintiffs would sometimes still encounter Genao outside the
first-floor lockup and because Funes heard him, through a closed
door, make a sexual noise one additional time after plaintiffs
complained. Neither of these facts is material. The Department
had “wide discretion in choosing how to minimize contact
between” plaintiffs and Genao, and while ordering them to stay
on separate floors of the Courthouse may not have been a perfect
solution, it was a reasonable one pending the investigation of
plaintiffs’ report. (Bradley, supra, 158 Cal.App.4th at p. 1630.)
Moreover, plaintiffs do not claim that Genao engaged in any
harassing conduct when they happened to encounter him; in fact,
on one occasion when Funes encountered Genao, it was because
Funes volunteered to assist him with a female inmate. As for
Funes overhearing Genao’s sexually inappropriate conduct
through a closed door, there is no evidence that Genao directed
his conduct, though unquestionably distasteful, at any coworker
who was offended by that conduct. (See Lyle, supra, 38 Cal.4th at
p. 285 [a plaintiff “must show that the harassment directed at
others was in her immediate work environment, and that she
personally witnessed it”]; Yuknis v. First Student, Inc. (7th Cir.
2007) 481 F.3d 552, 555-556 [“The more remote or indirect the act
claimed to create a hostile working environment, the more
attenuated the inference that the worker’s working environment
16
was actually made unbearable . . .”]; Harris v. Forklift Systems,
Inc. (1993) 510 U.S. 17, 21-22 [requiring the victim to
“subjectively perceive” the work environment as “objectively
hostile” to trigger a Title VII violation]; cf. Bradley, at p. 1640
[reasonableness of employer’s remedial measures “‘will depend on
its ability to stop harassment by the person who engaged in
harassment’”].) Nor is there any evidence that Funes lodged
another complaint about Genao’s conduct.
B. Sex/gender discrimination claim and
retaliation claims (by all plaintiffs)
To prevail on claims of sex/gender discrimination under
FEHA, retaliation under FEHA, and whistleblower retaliation
under Labor Code section 1102.5, a plaintiff must establish—
among other things—that her employer subjected her to an
adverse employment action. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 355 (Guz) [discrimination]; Gov. Code, § 12940,
subd. (a) [same]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1042 (Yanowitz) [retaliation under FEHA]; Gov. Code, §
12940, subd. (h) [same]; Lawson v. PPG Architectural Finishes,
Inc. (2022) 12 Cal.5th 703, 712 (Lawson) [whistleblower
retaliation under Labor Code section 1102.5].) An adverse
employment action is defined as an action by the employer that
“materially” and “adverse[ly]” “affect[s] the terms and conditions
of employment.” (Yanowitz, at p. 1036.) Reaching beyond firing,
demoting, or refusing to promote the employee, adverse
employment actions also include actions by the employer that are
“reasonably likely to impair a reasonable employee’s job
performance or prospects for advancement or promotion.” (Id. at
pp. 1054-1055; Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413, 423.) However, those
17
actions must be material, and materiality is adjudged objectively.
(Momah v. Dominguez (6th Cir. 2007) 239 Fed.Appx. 114, 123-
124; Yanowitz, at p. 1054 [“objective perspective”]; Holmes v.
Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047,
1063 [“‘objective evidence’”].) Thus, actions by an employer that
do no more than subjectively “upset” or “‘humiliat[e]’” the
employee, or are “‘not to [her] liking,’” are not adverse
employment actions. (Yanowitz, at p. 1054; McRae v. Department
of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386,
393 (McRae); Light v. Department of Parks & Recreation (2017)
14 Cal.App.5th 75, 92.) In addition, there must be a “‘causal
link’” between the protected activity and the employer’s adverse
employment action, which often is shown by a temporal
relationship between the two. (Light, at p. 91.)
Plaintiffs point to over 20 incidents at their work
environment at the Courthouse, contending that they constitute
adverse employment actions that are causally linked to their
report of Genao.3 They do not. We group these incidents into
3 The County asserts that plaintiffs’ laundry list of adverse
employment actions exceeds the scope of the allegations in their
operative complaint. We agree that plaintiffs have unfairly
moved the target, but we nevertheless elect to exercise our
discretion to address why the entirety of the actions proffered by
plaintiffs fail to constitute adverse employment actions as a
matter of law. (Conroy v. Regents of University of California
(2009) 45 Cal.4th 1244, 1250 [“The materiality of a disputed fact
is measured by the pleadings [citations], which ‘set the
boundaries of the issues to be resolved at summary judgment’”];
Oakland Raiders v. National Football League (2005) 131
Cal.App.4th 621, 648 [a “‘plaintiff cannot bring up new,
unpleaded issues in . . . her opposing papers’”;
“‘counterdeclarations are no substitute for amended pleadings’”].)
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four buckets, each of which we discuss separately: (1) actions
suffered by all plaintiffs, (2) actions suffered by Funes, (3) actions
suffered by Redondo, and (4) actions suffered by Khanna.
1. Actions suffered by all plaintiffs
All plaintiffs claim they suffered three of the same adverse
employment actions—namely, (1) having to continue to work with
Genao; (2) being prevented from performing their duties because
they could not access the first-floor lockup; and (3) being
“ostracized and shunned” by their fellow deputies when, for
example, the deputies refused to share an elevator with plaintiffs,
spoke to them in only “short, snappy replies,” and denied them
backup.
None of these actions constitute adverse employment
actions as a matter of law. First, Genao’s conduct after plaintiffs
made their report cannot be considered an adverse employment
action by their employer because, as explained above, the
Department took reasonable action to investigate and then
discipline Genao and plaintiffs did not make the Department
aware of any further misconduct by Genao; as a result, Genao’s
conduct is not attributable to the County. Second, the
Department’s action in telling plaintiffs not to access the first
floor was not an adverse employment action; it was designed to
separate plaintiffs from the coworker about whom they
complained, which is a long-accepted and reasonable step to take
during the pendency of an investigation. Plaintiffs’ assertion that
the very action an employer takes to eliminate the danger of
further harassment pending an investigation simultaneously
constitutes an adverse employment action puts an employer in an
impossible, no-win situation. We also reject plaintiffs’ related
contention that inconsistencies in how the Department described
19
the separation to them is evidence of pretext, as it is undisputed
that they were informed that the separation was a direct result of
their complaint and intended to halt continued harassment
during the pendency of the investigation. Third, ostracism or a
pattern of social slights by coworkers does not materially affect
the terms, conditions, or privileges of employment. (Brooks v.
City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929 [“Because an
employer cannot force employees to socialize with one another,
ostracism suffered at the hands of coworkers cannot constitute an
adverse employment action”]; Yanowitz, supra, 36 Cal.4th at p.
1054 [“a pattern of social slights by . . . coemployees” does not
constitute adverse employment action]; Lyle, supra, 38 Cal.4th at
p. 295 [“FEHA is ‘not a “civility code”’”].)
2. Actions suffered by Funes
Funes claims she alone suffered three other adverse
employment actions—namely, (1) experiencing harassment by
Guerrero, (2) receiving write-ups and other discipline, and (3)
being transferred to the Pasadena courthouse far from her home.
We conclude, as a matter of law, that none of these constitute
adverse employment actions causally linked to Funes’s complaint
about Genao.
First, the mutual dislike between Guerrero and Funes
amounts to nothing more than “[m]inor or relatively trivial”
conduct “that, from an objective perspective, [is] reasonably likely
to do no more than anger or upset an employee” and, as such,
“cannot properly be viewed” as an adverse employment action.
(Yanowitz, supra, 36 Cal.4th at p. 1054; Doe v. Department of
Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 735
[FEHA “‘“‘is not a shield against harsh treatment at the
workplace’”’”]; see also Malais v. Los Angeles City Fire Dept.
20
(2007) 150 Cal.App.4th 350, 357 [conduct does not constitute an
adverse employment action simply because it is “‘“contrary to the
employee’s interests or not to the employee’s liking”’”].) What is
more, nearly all—if not all—of Guerrero’s conduct cited by Funes
occurred before plaintiffs engaged in protected activity by
reporting Genao and therefore cannot serve as an adverse
employment action in retaliation for that protected activity.
Second, the undisputed facts establish that the discipline
Funes received was for legitimate, nonretaliatory reasons.
(Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549,
558-559 [employer moving for summary judgment has burden to
show that adverse employment action was based on legitimate,
nonretaliatory factors]; Serri, supra, 226 Cal.App.4th at p. 861
[“‘“legitimate” reasons [citation] . . . are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus
preclude a finding of discrimination,’” italics in original].)
Specifically:
● In October 2020, Funes received a performance log
entry (PLE)—which is a note, whether positive or negative, that
is placed in the deputy’s personnel file for one year—because she
made hurtful comments about Guerrero’s sexual orientation.
Funes’s challenge to this PLE was denied.
● In November 2020, Funes received a PLE for failing
to follow a judge’s specific instructions for uncuffing an inmate.
Funes’s challenge to this PLE was also denied.
● In January 2022, Funes was suspended for making
various sexual remarks about a judge, a fellow deputy, and the
sergeant’s son during the period of January 2020 to May 2020.
21
● In February 2022, Funes was suspended because she
had improperly stored an inmate’s backpack in January 2021
despite orders to “book” the found property.
Because the County met its burden of showing the
Department had legitimate, nonretaliatory reasons for Funes’s
discipline, the burden shifted to Funes to show that those reasons
were “‘“untrue or pretextual”’” or that the Department acted with
a retaliatory animus. (Swanson v. Morongo Unified School Dist.
(2014) 232 Cal.App.4th 954, 965.) Other than her own self-
serving declaration stating she did not engage in the conduct
underlying the PLEs and suspensions, Funes offered no evidence
challenging the County’s proof. This was insufficient to create a
triable issue of material fact. (Serri, supra, 226 Cal.App.4th 830[plaintiff’s burden not met by mere speculation]; King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [“plaintiff’s
subjective beliefs” and “uncorroborated and self-serving
declarations” “do not create a genuine issue of fact”].)
Third, Funes was transferred to the Pasadena courthouse
sometime after September 2021—over a year after plaintiffs
reported Genao’s conduct. There is no causal link between that
protected activity and Funes’s transfer. (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 69 [retaliatory
motive proved by showing that “‘“adverse action followed within a
relatively short time”’” after protected activity].)
3. Actions suffered by Redondo
Redondo claims she alone suffered one other adverse
employment action—namely, being “shushed” by the lieutenant.
A rude comment—or, for that matter, a rude gesture—is not
actionable, particularly where the Department was
simultaneously engaging in reasonable corrective action.
22
(McRae, supra, 142 Cal.App.4th at pp. 386, 392-393 [the
workplace is not an “‘“idyllic retreat[]”’”]; Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 231 [“stray remarks that are
unconnected to employment decisionmaking” are unactionable];
Horn v. Cushman & Wakefield Western, Inc. (1999) 72
Cal.App.4th 798, 810 [“‘single, isolated discriminatory comment’
by plaintiff’s immediate supervisor was insufficient”].)
4. Actions suffered by Khanna
Khanna claims she alone suffered three other adverse
employment actions—namely, (1) the slashing of her tires; (2)
having the investigation into that incident “sabotaged” by her
supervisors; and (3) being denied time off to observe the Passover
holiday (which occurred before plaintiffs engaged in protected
activity and therefore cannot constitute an adverse employment
action in retaliation for that protected activity). For the reasons
discussed in detail below in Subsection I.D., Khanna did not
suffer an adverse employment action because her theory that the
Department is to blame for the damage to her vehicle is based on
mere speculation. (Advent, Inc. v. National Union Fire Ins. Co. of
Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459 [“‘“Speculation . . .
is not evidence” that can be utilized in opposing a motion for
summary judgment’”].) It is also undisputed that the
Department did not, as Khanna claims, “withh[o]ld” evidence of
the slashing because the Department presented a complete copy
of the video of the parking area to Khanna herself. And,
although Khanna’s vacation time was cancelled due to the
application of a facially neutral policy, she was able to observe
the holiday by using sick time (Guz, supra, 24 Cal.4th at p. 354,
fn. 20 [discrimination may be found where a facially neutral
policy has a disproportionate adverse effect on members of
23
protected class]; Angelucci v. Century Supper Club (2007) 41
Cal.4th 160, 175 [“‘a plaintiff cannot sue for discrimination in the
abstract, but must actually suffer the discriminatory conduct’”]).
5. Plaintiffs’ further arguments
Plaintiffs raise two further arguments.
They argue that we should consider all of the actions
discussed above “collectively,” even if each action is not on its own
sufficient to constitute an adverse employment action.
(Yanowitz, supra, 36 Cal.4th at p. 1058.) We disagree. The
actions cited by plaintiffs are unlike those found to have a
cumulative effect in Yanowitz, which were compiled to build a
case against that employee to “place[] her career in jeopardy.”
(Yanowitz, at p. 1060.) Here, however, plaintiffs presented no
evidence or argument for why any of the actions discussed above
cumulatively affected the terms and conditions of their
employment. Although the question of whether an employer’s
conduct constitutes an adverse employment action is generally a
factual one (id. at p. 1052), this case presents a situation in which
we can conclude, as a matter of law, that the conduct is
insufficient—separately or collectively—to amount to an adverse
employment action. (See St. Myers v. Dignity Health (2019) 44
Cal.App.5th 301, 318-319 [summary judgment affirmed where
plaintiff “failed to provide admissible evidence to create a triable
issue of fact” to show adverse employment action].)
Plaintiffs also argue that the trial court was required to
deny summary adjudication of their whistleblowing retaliation
claim under Labor Code section 1102.5 because the County did
not invoke the proper burden-shifting standard set forth in
Lawson, supra, 12 Cal.5th 703. The burden-shifting standard in
24
Lawson is irrelevant to our conclusion that plaintiffs suffered no
adverse employment action.
C. Khanna’s separate claims
1. Religious creed discrimination
To prevail on a claim of religious creed discrimination
under FEHA as alleged by Khanna, a plaintiff must establish her
employer (1) “discriminate[d]” against her “in terms, conditions,
or privileges of employment”; (2) due to “a conflict between [her]
religious . . . observance and any employment requirement.”
(Gov. Code, § 12940, subd. (l)(1).) However, there is no FEHA
liability if the employer “demonstrates that it has explored any
available reasonable alternative means of accommodating the
religious . . . observance . . . , but is unable to reasonably
accommodate the . . . observance without undue hardship.”
(Ibid.) For these purposes, “undue hardship” means “significant
difficulty or expense” “in light of” several factors, including “[t]he
type of operations, including the composition, structure, and
functions of the workforce of the entity.” (Gov. Code, § 12926,
subd. (u).)
The undisputed facts establish that the Department had
historically granted Khanna’s requests for time off for the Jewish
High Holidays, including Passover; that the Department initially
granted her request for two dates in April 2020 to observe
Passover; that the Department later denied her request after the
issuance of a Department-wide edict cancelling all vacation time
through April 30, 2020 due to the need for deputies to be
available to assist if necessary given the historical uncertainty
about what to do in response to the outbreak of COVID-19 in
March 2020; and that Khanna’s supervisors nevertheless allowed
Khanna to take the days off, albeit using her sick time.
25
On these undisputed facts, Khanna’s religious
discrimination claim fails for two reasons. First, the Department
showed that it did reasonably accommodate Khanna’s request by
allowing her to take time off for her religious observance.
Khanna counters that she had to “fight” to achieve that
accommodation, but the evidence of her meeting with supervisors
to receive the days off despite the Department-wide edict reveal
no discriminatory animus. Khanna also counters that having to
use her sick time (rather than her vacation time) was somehow
an unreasonable accommodation by depriving her of the two days
of sick time in case she needed it, but she did not introduce any
evidence to show that the types of time off were not equivalent.
Second, and even if we assume that the Department’s
accommodation was unreasonable, the Department also
established that it would suffer undue hardship by allowing
Khanna to take vacation time because the Department would
face “significant difficulty” discharging its primary function of
ensuring public safety if, during the uncertainty surrounding the
unprecedented outbreak of COVID-19, it did not have “all hands
on deck” to respond to any emergencies.
Khanna’s chief response is that the Department did not
apply its Department-wide edict consistently because it allowed a
different deputy with a nonrefundable vacation to go on his
booked vacation during the “no vacation” window. This does not
create a triable issue of material fact because there is no evidence
that the Department’s accommodation to that deputy was any
different from the accommodation it offered to Khanna—namely,
the opportunity to use sick time in lieu of vacation time. Absent
such evidence, there is no differential treatment and no
discrimination.
26
2. The Bane Act and the Ralph Act
The Bane Act prohibits a person from “interfer[ing] by
threat, intimidation, or coercion . . . with [the plaintiff’s] exercise
or enjoyment . . . of [her constitutional] rights” with the “specific
intent to violate [her civil] rights.” (Civ. Code, § 52.1; Schmid v.
City and County of San Francisco (2021) 60 Cal.App.5th 470, 483;
Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268,
1290 (Gabrielle A.).) The Ralph Act prohibits a person from
threatening or committing violent acts against the plaintiff or her
property with a discriminatory motive. (Civ. Code, § 51.7;
Gabrielle A., at p. 1291; Austin B. v. Escondido Union School
Dist. (2007) 149 Cal.App.4th 860, 880-881.) As these elements
suggest, a plaintiff can prevail on either claim only if she
establishes that the defendant—here, the County—engaged in a
threatening or violent act.
The undisputed facts do not create a triable issue that
anyone employed by the County was responsible for slashing
Khanna’s tire, which is the sole basis for her Bane and Ralph Act
claims. Khanna’s sole “evidence” that the County is liable is her
belief that Guerrero was the culprit because the incident occurred
shortly after plaintiffs reported Guerrero’s “friend” Genao and
her belief that her supervisors sabotaged the investigation into
the incident, but she offers no admissible evidence other than her
own speculation to support that belief. Because “‘[s]peculation . .
. is not evidence,’” it “cannot create a triable issue of material
fact.” (McHenry v. Asylum Entertainment Delaware, LLC (2020)
46 Cal.App.5th 469, 479; Gabrielle A., supra, 10 Cal.App.5th at p.
1291 [declining to “substitute speculation for evidence” on Ralph
Act claim].) Indeed, there is not even any admissible evidence
that Khanna’s tire was slashed (as opposed to becoming flat), as
27
the sole evidence she offered of slashing was the opinion a
“workman” at the tire shop relayed through her husband, and
Khanna does not on appeal challenge the trial court’s proper
exclusion of this double hearsay.
D. Derivative claim for failure to prevent
harassment, discrimination, or retaliation
An employer cannot be liable for failing to prevent
harassment, discrimination, or retaliation under FEHA absent a
finding that such an actionable unlawful employment practice
actually occurred. (Dickson v. Burke Williams, Inc. (2015) 234
Cal.App.4th 1307, 1317-1318.) Because we affirm the judgment
in favor of the County on plaintiffs’ underlying causes of action
for harassment, discrimination, and retaliation, we must affirm
the judgment on their cause of action for failure to prevent
harassment, discrimination, or retaliation.
II. Ruling on Attorney Fees
A. Applicable law
Attorney fees are allowable as costs to a prevailing party
when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5,
subd. (a)(10)(B).) FEHA authorizes an award of reasonable
attorney fees to an employer who prevails in a FEHA action, but
only if the trial court finds that “the [plaintiff-employee’s] action
was frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.” (Gov.
Code, § 12965, subd. (c)(6); Chavez v. City of Los Angeles (2010)
47 Cal.4th 970, 985.) “An action is not frivolous simply because
the plaintiff[s’] FEHA claim failed.” (Baker v. Mulholland
Security & Patrol, Inc. (2012) 204 Cal.App.4th 776, 784.) But an
action may “rise to the level of frivolity required to support” an
award of fees to an employer-defendant if, for example, the
28
plaintiff failed altogether to “present[] a colorable claim.”
(Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &
Shapiro (2001) 91 Cal.App.4th 859, 870, 873-874 (Rosenman).)
We review a trial court’s award of attorney fees to an
employer who prevailed in a FEHA action for an abuse of
discretion. (Cummings v. Benco Building Services (1992) 11
Cal.App.4th 1383, 1387 (Cummings); Williams v. Chino Valley
Independent Fire Dist. (2015) 61 Cal.4th 97, 101-102.)
B. Pertinent facts
In support of its motion for attorney fees, the County
submitted evidence—for the first time—of plaintiffs sending text
messages in February and March 2020 (and thus after some of
the harassment had started in January 2020) to fellow deputies
of a sexual and racially insensitive nature. For example, Khanna
sent a picture of a piece of meat at Walmart captioned “a cow
dick”; Funes sent an image of a woman riding a toy horse and
explained, “[T]his is going to be me in a few,” with Khanna
responding, “[R]ide that verga girl,” which she translated as
“[S]panish slang” for penis; and Khanna sent a picture mocking
the appearance of an Asian person. Plaintiffs did not contest any
of this evidence in opposing the attorney fees motion, and instead
argued that their lawsuit was not frivolous “‘merely [because
they] failed to achieve success’” on summary judgment.
The trial court awarded the County $28,215 in fees,
concluding that “plaintiffs’ case was objectively without
foundation when brought” or, alternatively, plaintiffs “knew or
should have known they had no admissible evidence in
opposition” to the summary judgment motion. The court
explained that “plaintiffs had no evidence of adverse employment
actions or retaliation,” that Khanna “had no admissible evidence
29
about her alleged tire-slashing incident,” and that Khanna “had
no evidence supporting a claim of religious discrimination.” The
court went on to observe that, “[i]nstead of being sexually
harassed,” “plaintiffs engaged in vulgar and sexualized comments
with their alleged harassers.”
C. Analysis
The trial court did not abuse its discretion in concluding
that plaintiffs’ claims were “frivolous, unreasonable, or
groundless” for purposes of awarding the County its requested
fees. As discussed in detail above, the record on summary
judgment showed a complete lack of factual support for at least
one required element of each of plaintiffs’ claims. (E.g.,
Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1200
[fees appropriate where no evidence of discrimination]; see also
Robert v. Stanford University (2014) 224 Cal.App.4th 67, 73
(Robert) [fees appropriate where no evidence except plaintiff’s
opinion].) To be sure, plaintiffs presented a plethora of evidence
bearing on the harassment by Genao that they endured in
support of their harassment claim, but they lacked evidence
raising any dispute of material fact on the separate element
showing that the County was legally responsible for Genao’s
conduct under FEHA due to its failure to take corrective action
once notified of that conduct. Plaintiffs lacked evidence raising
any dispute of material fact on the element of whether they
suffered any adverse employment action, which was an essential
element of their discrimination and retaliation claims. And
Khanna lacked evidence raising any dispute of material fact on
the elements of whether her religious observation was reasonably
accommodated and whether the County had any causal
responsibility for Khanna’s tire damage. Importantly, the trial
30
court limited its award of fees to those incurred by the County in
litigating its summary judgment motion—that is, after discovery
had closed and it became obvious that the evidence supporting
these elements was completely lacking. Just because a plaintiff
may raise a triable issue of fact as to some elements of a claim
does not immunize that plaintiff from a finding that the claim is
frivolous where, as here, the plaintiff has failed to adduce any
evidence as to other elements of that claim and that claim
therefore fails as a matter of law.
Plaintiffs resist our conclusion with three arguments.
First, they argue that they presented “voluminous evidence at
summary judgment.” But quantity is not a substitute for quality,
and the quality of evidence they presented did not raise any
triable issues of material fact because, as noted above, at least
one key element of every claim was entirely absent. (Cf.
Cummings, supra, 11 Cal.App.4th at p. 1388 [reversing fee award
for defendant because plaintiff had “presented some evidence of
age discrimination”].) Second, plaintiffs argue that the trial court
“essentially found” that their case “lacked merit” rather than that
it was “frivolous.” They are incorrect; the court expressly found
that plaintiffs had “no evidence” supporting the necessary
elements detailed above and it therefore “was improper” for them
to “continue” to engage in “very heavy litigation” of the case.
(See, e.g., Bass v. E.I. DuPont de Nemours & Co. (4th Cir. 2003)
324 F.3d 761, 767 [plaintiff’s discrimination claims “lacked any
foundation in the record apart from her own conclusory
assertions”].) Third and lastly, plaintiffs argue that the trial
court failed to make “express written findings” on the factors in
Christiansburg Garment Co. v. Equal Employment Opportunity
Commission (1978) 434 U.S. 412, and Cummings, supra, 11
31
Cal.App.4th 1383. (See Rosenman, supra, 91 Cal.App.4th at p.
868.) We reject this argument because (1) plaintiffs forfeited it by
waiting until their reply brief to raise it (Gallo v. Wood Ranch
USA, Inc. (2022) 81 Cal.App.5th 621, 646); (2) plaintiffs fail to
argue that the purported lack of findings caused them any
prejudice (Robert, supra, 224 Cal.App.4th at pp. 71-72); and (3)
the court’s written ruling here sufficiently complies with the
requirement of written findings.
DISPOSITION
The judgment and attorney fee order for the County are
affirmed. The County is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
32