Munoz v. City of Los Angeles CA2/5 ( 2024 )

Filed 10/16/24 Munoz v. City of Los Angeles CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ALFONSO MUNOZ, B321795
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 18STCV01290)
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Affirmed.
The Law Offices of John A. Schlaff and John A. Schlaff for
Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, Scott Marcus, Chief Assistant City
Attorney, Shaun Dabby Jacobs, Supervising Assistant City
Attorney, and Timothy Martin, Deputy City Attorney for
Defendant and Respondent.
Plaintiff and appellant Alfonso Munoz appeals from a
summary judgment in favor of his employer, defendant and
respondent City of Los Angeles, in this action for retaliation
under the California Fair Employment and Housing Act (FEHA;
Gov. Code §12900 et seq.).1 On appeal, Munoz contends triable
issues of fact exist as to whether the City took an adverse
employment action against him in retaliation for making a
complaint to the City about his coworker’s discriminatory
conduct. We conclude there is no triable issue of material fact as
to whether Munoz was subjected to an adverse employment
action. The undisputed evidence showed Munoz did not want to
continue working in proximity to the coworker, so the City gave
him several options to choose from, including simply moving his
desk or taking another position. Munoz’s evidence did not raise a
triable issue of fact that the City took an adverse action against
him. Summary judgment was properly granted, and therefore,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Undisputed Facts
The Los Angeles Police Department (LAPD) commercial
crimes division includes the financial crimes section. In 2016, the
officer in charge of financial crimes (OIC) was Lieutenant
Gregory Doyle.
1 All further statutory references are to the Government
Code unless otherwise stated.
2
Financial crimes contains two units: the Valley financial
section (VFS) located primarily in Van Nuys and the
metropolitan financial section located in downtown Los Angeles.
At the Van Nuys office, the assistant officer in charge
(AOIC) of VFS was Detective III Vivian Flores. She was the
longest serving officer in VFS. Detective III James Jarvis led the
arrest/filing team at the Van Nuys office.
In October 2016, Munoz, who is also a Detective III, joined
VFS. Munoz’s expertise is in surveillance. Initially, he worked
with a task force located at the Chatsworth courthouse.
In December 2016, Munoz was assigned to the Van Nuys
office to form a field enforcement element (FEE) unit to generate
arrests. He supervised Detective I Brian Thayer and intended to
recruit two additional detectives to the unit.
That same month, LAPD Captain III Charles Hearn took
over command of the commercial crimes division.
In February 2017, when Jarvis took extended medical
leave, VFS was reorganized. The FEE unit at the Van Nuys
office was eliminated. Munoz took over Jarvis’s arrest/filing
team, and Thayer moved to the arrest/filing team with him.
Flores continued as AOIC. It was anticipated that when Jarvis
returned months later, he would lead a “Category 1 Team.”
Flores and Munoz experienced personality conflicts because
Flores treated Munoz as a subordinate, rather than a coequal
Detective III. Flores told Munoz that he was a “typical male
Hispanic, macho man.”
In April 2017, Munoz explained to Hearn the issues that he
was having with Flores. Hearn initiated a personnel complaint
on Munoz’s behalf with the internal affairs department. Hearn
gave Munoz several options while the complaint was being
3
investigated, including remaining at the Van Nuys location and
reporting directly to Doyle or transferring to positions available
at the South Bureau office or downtown Los Angeles .
On April 12, 2017, Munoz wrote an email to Hearn
declining to work at South Bureau or downtown Los Angeles.
Munoz felt those options seemed like a punishment for bringing
Flores’s misconduct to Hearn’s attention. About the option to
report directly to Doyle in the same office as Flores, Munoz wrote,
“Now that this has come out I feel there may be some type of
retaliation for coming forward. [It’s] hard to think that this
would be kept confidential.” He noted that Hearn denied his
request to assume his old role and stay in the field with his
partner. In light of the limited time to make a decision, he
decided to stay at the Van Nuys office and report to Doyle. He
asked for additional direction as to that option.
After a conversation with Hearn, Munoz wrote another
email confirming that he would move to the Davis facility where
the commercial auto theft section (CATS) was located, report
directly to Doyle, and work on VFS Category 1 cases with Thayer
as his partner. Thayer moved to the Davis location with Munoz
and continued to report to Munoz.
Munoz’s performance review for the period from October
2016 to June 2017, prepared by Doyle in September 2017, stated
Munoz met or exceeded standards in all applicable categories,
and Munoz received an overall “satisfactory” rating, which was
the highest rating.
In January 2018, the internal affairs department completed
its investigation. The allegation that Flores treated Munoz like a
subordinate was classified “Employee’s Action Could be
4
Different” and the allegation that Flores called Munoz a “typical
male Hispanic, macho man” was sustained against Flores.
In an email exchange in January 2018, Hearn advised
Munoz that the investigation was concluded, so Munoz and
Thayer should make every effort to attend general VFS squad
meetings and training days, as well as senior employee meetings.
Munoz replied, “Just making sure that you now want interaction
between [Flores] and myself and no longer want us to avoid all
contact per our last conversations in your office two weeks ago?”
Hearn responded, “You do not have to avoid contact at all. I
encourage you to establish a healthy relationship with [Flores].”
At some point, Thayer transferred to the major crimes
division, a specialized division within LAPD that was outside
Hearn’s authority. In February 2018, Munoz requested an
administrative transfer to the major crimes division. An
employee relations administrator notified the commanding officer
of the personnel division that Munoz had requested an
administrative transfer to resolve a conflict within the command.
The administrator reviewed the request and concluded there was
not sufficient justification for an administrative transfer, because
Munoz could be reassigned within in the command. Munoz asked
Hearn to loan him to the major crimes division, which Hearn
considered but ultimately declined to do.
April 2018, Hearn discussed options with Munoz. Hearn
offered Munoz the choice of several positions within Hearn’s
authority, including a training coordinator position, a South
Bureau CATS position working out of the Davis location, or the
option to continue handling cases at VFS.
Munoz met with Lieutenant Hollis, who had taken over for
Doyle, and Lieutenant Solano, who was assigned to downtown, to
5
discuss his options. They offered essentially the same options as
Hearn, including the training coordinator position downtown, a
position at the South Bureau section, a position in Metro
Financial, and a position in the due diligence unit in downtown
Los Angeles, which consisted of two Detective I employees
without supervisor. The due diligence unit was in charge of all
the warrants in the division.
Munoz said that he would be interested in the due diligence
unit if they worked out of the Davis facility, since Munoz was
already at the Davis location. Solano agreed to present the
request to Hearn. Hearn approved Munoz’s transfer to the due
diligence unit and his request to continue working from the Davis
location.
On July 9, 2018, two months after Munoz was assigned to
due diligence, Hearn approved a positive performance evaluation,
which stated in pertinent part: “Detective Munoz is a very
effective supervisor, who should consider promotion to lieutenant,
a position for which he is well qualified.”
B. Allegations of the Complaint
On October 18, 2018, Munoz filed a complaint against the
City for retaliation in violation of the FEHA based on the
following allegations. In February and April 2017, Munoz
reported incidents to Doyle of hostile work environment and
discriminatory comments that Flores made about Munoz’s race
and gender. On April 11, 2017, Munoz made a complaint about
Flores’ discriminatory conduct to Captain Hearn. Immediately
afterward, Hearn reassigned Munoz to a lesser position
investigating Category 1 cases, a position suitable for a
6
Detective I. Munoz was transferred from the VFS worksite to the
Davis facility, which is not even a division of the department.
Stripping him of his duties and assigning him far lesser duties
that were not befitting his rank was an adverse action. At the
Van Nuys office, Munoz had supervised five or six people. At the
Davis facility, Munoz had one person to work with and few
employees at the site. Munoz remained at this assignment for a
year. Although Flores was found to have made discriminatory
comments, she remained in her work location and Munoz is not
aware of any punishment that she received. Munoz was
reassigned to downtown Los Angeles to the due diligence unit to
work on warrants, where he remained under Hearn’s supervision.
As a result of LAPD’s actions, including transferring him to
lesser assignments and undesirable work locations, Munoz has
lost income, earnings, advancement and promotional
opportunities, overtime and other benefits, including the ability
to obtain coveted positions. His career has been and will
continue to be negatively impacted.
C. Motion for Summary Judgment and Supporting
Evidence
On December 23, 2021, the City filed a motion for summary
judgment on the grounds that Munoz had not suffered an adverse
employment action, could not establish a prima facie case of
retaliation because there was no causal link, and the City had a
legitimate business reason for its actions, which Munoz could not
show to be pretextual.
The City submitted Doyle’s declaration. Doyle learned of
the personality conflicts between Flores and Munoz. After Munoz
7
filed the complaint against Flores, Munoz was clear that he did
not want to work with her. Flores was instrumental in the daily
operations of VFS, had developed expertise in financial crime,
and was training subordinate detectives in these types of cases.
Moving Flores would have been highly disruptive for VFS due to
her integral role.
Doyle supervised Munoz at the Davis location, where
Munoz continued to work on VFS cases and carry out arrest
warrants. Doyle assigned Munoz cases and responsibilities
commensurate with the job duties of a Detective III.
Doyle declared that he has no ill will or animosity toward
Munoz. Doyle did not take any actions toward Munoz in
retaliation for complaining about Flores. Munoz continued to
attend squad meeting and training sessions at the VFS office.
Doyle did not restrict Munoz from access to the Van Nuys office
or limit any resources from him. He did not restrict Munoz from
engaging with any employees. The only limitation was the same
as the one placed on Flores: not to engage with each other.
Munoz was welcome to participate in any office luncheon or
holiday gatherings. Doyle only became aware of Munoz’s
allegations of retaliation through the lawsuit.
The City also submitted Hearn’s declaration. When Munoz
filed his complaint against Flores, Munoz was clear in his request
not to work with Flores. Munoz wanted Flores removed from her
position. He believed that he could replace her. This solution
would have been highly disruptive for the section, particularly
because Jarvis was out on extended medical leave. Removing
Flores would have left VFS without either of the two senior
detectives with the most experience at VFS. Munoz would have
had to assume the duties of the AOIC, supervise the entire office
8
as the only Detective III, and maintain his own case load when he
was new to the section himself. Additionally, while Flores had
proven ability to meet the administrative demands of the
position, Munoz’s experience was concentrated in surveillance
work, not administration.
Hearn declared that he offered Munoz the following five
options. Munoz could continue to work in the same building and
have his desk temporarily moved to a different part of the same
floor. Munoz declined this option. Munoz could take a position
with the surveillance team in downtown Los Angeles where
another detective was set to retire, and as long as Munoz’s
performance was adequate, he could have the opportunity to take
over the team. Munoz declined this option as well. Munoz could
supervise CATS, which is an elite unit in auto theft, but he
declined. Hearn offered Munoz a position as a training
coordinator, but he declined. Hearn offered that Munoz could
continue his VFS work from the Davis Training Facility. Munoz
accepted this option.
Hearn understood the Davis Training Facility to be close to
Munoz’s house, making for a convenient commute. He also
believed that Munoz had a sick daughter, which had an impact
on his work hours, so the Davis location was more conducive for
him. Hearn told Doyle to oversee Munoz’s case assignments and
administrative needs. Munoz received meaningful work,
emphasizing field work such as arrests and surveillance. Hearn
also approved Thayer to be relocated with Munoz. Hearn
approved Munoz’s performance evaluations in 2017 and 2018.
Munoz wanted an administrative transfer to the major
crimes division, which is outside Hearn’s authority. Hearn
relayed Munoz’s request. He is informed that the employee
9
relations administrator denied the request because there was
insufficient justification for an administrative transfer. Munoz
had to compete and be evaluated like other candidates.
Munoz did not suffer any disciplinary action for
complaining about Flores. He was never suspended, demoted, or
downgraded because of his complaint. He continued to receive
the same pay and benefits, and he worked the same hours. He
remains a Detective III. Hearn has no ill will or animosity
toward Munoz. He never considered Munoz’s allegations when
he made personnel decisions affecting Munoz. He also did not
take any actions toward Munoz because of any alleged protected
activity by Munoz.
The City included a message that Hearn wrote to Munoz in
April 2018, after the complaint against Flores had been
adjudicated and the administrative transfer denied. Hearn
stated, “Since the admin transfer has been denied we need to
consider other options for you. I know early on you told me you
didn’t want to work in the same office with [Flores] and hence
you were accommodated to continue working VFS but closer to
home with Thayer at Davis. You may remember at the start, I
offered you a position as an AOIC in the FEE with Joe Callian,
also the training coordinator job, Gary [Guevara’s] job, and a
CATS job working south bureau but housing at Davis. You did
not want the jobs and preferred to work VFS with Thayer at
Davis. Some of those jobs I offered are gone now . . ., however the
training coordinator is still available and south Bureau CATS is
still available working out of Davis. [¶] If you would like, come
on in to discuss those two open positions, or [remain] handling
the cases at VFS.”
10
The City submitted Munoz’s responses to special
interrogatories asking him to identify each adverse action that he
believed he suffered as a result of retaliation, Munoz stated that
discovery was not complete, but he was subject to involuntary
adverse transfers to lesser positions at the LAPD which were not
consistent with his rank and experience, including but not
limited to the transfer to the Davis facility.
The City also submitted excerpts from Munoz’s deposition
testimony. Hearn said Munoz would be in limbo for about a year
while the complaint was investigated, and they would come up
with a solution at the conclusion of the investigation. When
Munoz first moved to the Davis location, he was ordered not to
speak with anybody at VFS in Van Nuys. The only person he
was to report to was Doyle, and on Jarvis’s return to duty, he
would report to Jarvis. Munoz’s job dwindled down to working
Category 1 cases, and he was assigned two or three cases at a
time. Munoz’s pay, benefits, and hours did not change. He did
not apply for any promotions during the relevant time. He
supervised one person at the Davis location, the same person that
he had supervised originally at the Van Nuys location. After the
complaint against Flores was sustained, Hearn stated that he
was keeping Flores in her position, which Munoz considered to be
retaliation against him for reporting misconduct.
Flores was in charge of the sign-up sheet for overtime and
she would not put Munoz on the list. Munoz complained to
Jarvis about not getting overtime calls, but he did not elevate the
complaint about overtime to a lieutenant.
11
D. Opposition to Motion for Summary Judgment and
Supporting Evidence
In March 2022, Munoz opposed the motion for summary
judgment on the grounds that the City’s evidence was
inadmissible, the City failed to meet its burden, and there were
triable issues of fact as to each element raised by the City.
Munoz submitted the emails that he wrote to Hearn on
April 12, 2017. The second email stated in pertinent part, “In our
phone conversation earlier today, you advised after thinking of
what to do, I will be moved to the Davis facility where the CATS
unit is housed and I will be working Cat 1 cases away from the
VFS.”
Munoz submitted an email he wrote a year later, on
April 11, 2018, after the administrative transfer was denied. He
reminded Hearn that from the beginning, Munoz had been upset
about moving positions when he was the one who brought
Flores’s misconduct to light. Munoz stated, “[y]ou advised me
that I would have to pick a place to work until the complaint was
completed by Internal Affairs Division. I remember expressing
my disagreement with that decision and I was asked to think
about it. You then said you had [a] couple options for me to think
about which was working the training unit in the building
[downtown] or working CATS/South Bureau. I then again
expressed how unfair it was to me to have to drive [to downtown
and/or] the south end of the city, when I was the person who
brought the misconduct to your and the departments attention.
At that time I had no idea that CATS main office was out of
Davis. Those were the only options that were given to me in
12
person and when I left that meeting I was asked to give it a few
days to think about it.”
Munoz disagreed that Hearn had given him the option to
work in the FEE unit downtown, which he would have taken. He
described his memory of their conversation as follows: “It was
later on in the day that you called me on the phone and gave me
the same options again and during that conversation I again
expressed my feelings on why it was me being moved and not
[Flores]. I was not given an answer. You then advised me you
would think more on the issue and get back to me. Upon getting
back to me later on in the day, your solution was to move me to
Davis and give me a desk and a partner to work only Cat-1 cases
until the complaint was completed. I was to have zero contact
with [Flores] and all my involvement with any cases and or any
business to do with VFS will go through Lt. Doyle or DIII Jarvis.
I advised you that I will do as my command ask of me as I always
have.” He asked for additional time to consider his options.
Munoz prepared a summary of his meeting with Hollis and
Solano on April 25, 2018. He described the options that he was
given, including the option to work at VFS in the office with
Flores again.
Munoz submitted the declaration of LAPD Captain Lillian
Carranza. Carranza replaced Hearn in the Commercial Crimes
Division around the time that Munoz was assigned to the due
diligence unit. In her experience with workplace harassment
cases, the accused party would be relocated during the
investigation. In her view, moving Munoz suggested favoritism
toward the accused party and created a perception that Munoz
had committed misconduct.
13
Hearn said Munoz was not a very productive employee and
not as valuable to the unit as Flores. Hearn stated that he
assigned Munoz to Solano “because he needed close supervision
and Lieutenant Solano needed to ‘keep an eye’ on Detective
Munoz and report back to him about Detective Munoz’ attitude.”
The only conduct Hearn that identified as deficient was Munoz’s
attitude. Carranza believed these instructions set Munoz up for
failure. When Carranza arrived, she had serious concerns about
Flores’s ability to manage her workload.
Munoz submitted Jarvis’s declaration. As supervisor of the
arrest/filing team, he supervised three or four dedicated arrest
investigators. His desk was next to Flores’ desk and Munoz’s
desk was a few feet away. Munoz enjoyed being in the field and
working up cases; he did not like administrative work and did not
want Flores’s job. When Carranza replaced Hearn, she was
critical of the case backlog that had not been assigned for
investigation and concerned about the statute of limitations
running out. Shortly afterward, Flores was assigned to another
location.
Jarvis was surprised that Munoz was transferred to
another location after lodging a complaint. The general
perception was the accused party in a personnel action would be
transferred. By moving Munoz, it could be perceived that he was
at fault or committed misconduct.
Munoz submitted Solano’s declaration. Solano also
expressed surprise at Munoz’s relocation. After Munoz moved to
the due diligence unit, Hearn told Solano to “keep tabs” on him.
Hearn wanted Solano to give regular feedback on Munoz’s
attitude. Solano understood Hearn to be looking for negative
information about Munoz, which could be considered damaging to
14
Munoz’s reputation. Solano considers Munoz to be a great
supervisor who follows the rules.
Munoz submitted Hearn’s deposition testimony. Hearn
noticed Munoz seemed to have more absences than usual for his
position, going back before Munoz complained about Flores.
Munoz told Hearn that his daughter was ill. Hearn asked Doyle
to conduct an audit, which showed Munoz’s use of sick time was
not statistically different from other employees within his rank
classification. Munoz was not admonished for his use of sick
time, no counseling was initiated, and there was no notation in
his personnel file about having checked his use of sick time.
Hearn told Munoz to use the administrative form to
request a loan to the major crimes division, but ultimately, Hearn
did not support the loan request. Employees had to earn a
position in a specialized division, compete with other candidates
and undergo evaluation, rather than simply being sent there.
Hearn had lost several employees through “[m]anaged [a]ttrition”
and several senior employees were retiring, but the workload had
not decreased, so he did not consider it feasible to loan out any
employee. The commander responsible for the major crimes
division told Hearn that Munoz had to apply for a position like
other employees.
Munoz submitted his own deposition testimony. After he
made his complaint against Flores, Doyle told him not to talk to
anyone, or attend any functions or trainings, at the Van Nuys
location. This restriction lasted for approximately a year. At the
Davis facility, he was housed with another entity from the
commercial crimes division, but isolated to a corner desk. He had
been supervising approximately six people when he left Van
Nuys, but at Davis he performed the work of a Detective 1
15
handling Category 1 cases. His pay, benefits, and hours did not
change though. In January 2018, Hearn encouraged Munoz to
reintegrate with the Van Nuys office for meetings, trainings, and
functions.
Munoz submitted Thayer’s deposition testimony as well.
Thayer also made a complaint to the City about Flores’s conduct.
After making his complaint, Thayer told Hearn multiple times
that he was uncomfortable to be around Flores, the thought of
running into her made Thayer uncomfortable, and he did not
even want to go in the Van Nuys office to use the restroom
because he was afraid of running into her. Thayer believed
Flores should have been removed from the command at VFS.
Munoz filed objections to the evidence submitted by the
City.
E. Reply and Trial Court Ruling
The City filed a reply arguing, among other points, that
there was no triable issue of fact as to whether Munoz suffered
an adverse employment action. The City also filed objections to
Munoz’s evidence.
A hearing was held on March 18, 2022. Munoz argued
there was sufficient evidence to raise a triable issue of fact
whether he had been subjected to an adverse employment action.
He suggested that when he was transferred to the Davis facility,
the entire arrest/filing team could have been moved to the Davis
facility as well.
The trial court granted the motion for summary judgment.
The court noted that it was only required to rule on objections
material to disposition of the motion for summary judgment, and
16
therefore, the court declined to rule on Munoz’s evidentiary
objections. An adverse employment action requires a substantial
adverse change in the terms and conditions of employment.
Munoz’s maintained the same rank, pay, benefits, and hours.
Munoz did not want to work with Flores and was offered several
options to accommodate his request, including operating out of
the Davis facility. Munoz had previously worked at an off-site
location when he joined VFS, so performing work at an off-site
location was not, of itself, an adverse employment action.
Munoz’s transfer to the due diligence unit was also not an
adverse employment action. His request to transfer to major
crimes was outside Hearn’s authority. After Munoz requested to
work in the due diligence unit, and requested that the unit work
from the Davis location, his requests were granted. Based on the
City’s evidence, Munoz could not show he suffered an adverse
employment action because the material terms and conditions of
his employment did not change. In addition, even if Munoz
suffered an adverse employment action, the City’s evidence
supported a reasonable inference that Munoz was transferred as
a personnel decision based on operational needs rather than
personal animus toward Munoz.
The court concluded Munoz’s evidence in opposition to the
motion was not sufficient to show a triable issue of material fact.
Temporal proximity was not sufficient to rebut a legitimate, non-
discriminatory reason for an adverse employment action.
Hearn’s declaration was evidence of his own impressions. Munoz
did not submit any evidence to dispute Hearn’s narrative. The
fact that Flores had disputes with her subordinates did not
contradict that she was the most experienced senior detective at
VFS, and the fact that cases were backing up in VFS did not
17
support an inference that Flores should have or could have been
transferred instead of Munoz. Evidence that she had disputes
with subordinates or her work was not superior did not conflict
with Hearn’s assessment that it would be more disruptive to
move her. Munoz did not submit evidence that suggested
Hearn’s declaration was pretextual or self-serving, so the court
found the declaration admissible.
The court noted the vague claims about people’s general
impression of a transferred party did not provide any evidence
that Munoz’s professional reputation was in fact damaged. They
failed to show his reputation was actually damaged in a way that
had a material impact on his career and constituted an adverse
employment action. A reasonable finder of fact could not infer
from Munoz’s evidence that he was in fact negatively impacted by
his transfer.
Moreover, Munoz was offered opportunities to stay within
the same building, to supervise another unit, and to work as a
training coordinator. There was no evidence disputing that
Munoz requested to work with the due diligence unit at the Davis
facility.
Munoz’s evidence that he was excluded from meetings and
social gatherings was insufficient to constitute an adverse action.
He did not submit evidence showing this had a material impact
on his employment, reputation, or opportunities for promotion.
Particularly because Munoz’s evidence showed that after the
investigation concluded, he was encouraged to fully reintegrate
with VFS and instructed to attend meetings and potlucks.
Munoz failed to submit evidence that his job duties
changed in a way that constituted an adverse action. He was still
in a Detective III specialized unit. In sum, Munoz failed to meet
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his burden to show a triable issue of material fact as to whether
he suffered an adverse employment action. The trial court
granted the motion for summary judgment. On April 20, 2022,
the court entered judgment in favor of the City. Munoz filed a
timely notice of appeal.
DISCUSSION
A. Standard of Review and General Principles
The trial court properly grants summary judgment when
the moving papers demonstrate that no triable issue of material
fact exists, and the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the
trial court’s decision de novo, liberally construing the plaintiff's
evidence while strictly scrutinizing the moving defendant’s
submission. (Smith v. St. Jude Medical, Inc. (2013) 217
Cal.App.4th 313, 320.)
A defendant meets its burden of showing that a cause of
action has no merit if it shows that “one or more elements of the
cause of action . . . cannot be established, or that there is a
complete defense to the cause of action.” (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 849.) Once a defendant has carried that burden, the burden
shifts to the plaintiff “to show that a triable issue of one or more
material facts exists as to the cause of action . . . .” (Code Civ.
Proc., § 437c, subd. (p).)
Section 12940, subdivision (h), prohibits employer
retaliation against an employee who engages in certain protected
conduct. Specifically, section 12940, subdivision (h), makes it
19
unlawful for an employer “to discharge, expel, or otherwise
discriminate against any person because the person has opposed
any practices forbidden under [the statute] or because the person
has filed a complaint, testified, or assisted in any proceeding
under this part.” (§ 12940, subd. (h).)
“[T]o establish a prima facie case of retaliation under the
FEHA, a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action. [Citations.] Once
an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the
adverse employment action.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042 (Yanowitz).) If the employer
produces a legitimate reason, the burden shifts back to the
employee to prove intentional retaliation. (Ibid.) A plaintiff
must offer “evidence sufficient to allow a trier of fact to find
either the . . . stated reasons were pretextual or the
circumstances ‘ “as a whole support[ ] a reasoned inference that
the challenged action was the product of . . . retaliatory
animus.” ’ ” (Light v. Department of Parks & Recreation (2017) 14
Cal.App.5th 75, 94.)
“ ‘ “If the employer presents admissible evidence either that
one or more of plaintiff’s prima facie elements is lacking, or that
the adverse employment action was based on legitimate,
nondiscriminatory factors, the employer will be entitled to
summary judgment unless the plaintiff produces admissible
evidence which raises a triable issue of fact material to the
defendant’s showing.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327, 344, italics omitted.)
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B. No Adverse Employment Action
Munoz contends the City failed to meet its burden on
summary judgment, or if it did, that he showed a triable issue of
fact exists as to whether he suffered an adverse employment
action in retaliation for filing a complaint with the City about
Flores’ conduct. We disagree.
To constitute an “adverse employment action” within the
meaning of FEHA, an action “must materially affect the terms,
conditions, or privileges of employment.” (Yanowitz, supra, 36
Cal.4th at p. 1052.) Adverse employment actions include not only
hiring, firing, demotion, or failure to promote, but also “the entire
spectrum of employment actions that are reasonably likely to
adversely and materially affect an employee’s job performance or
opportunity for” career advancement. (Id. at p. 1054.)
“Retaliation claims are inherently fact-specific, and the
impact of an employer’s action in a particular case must be
evaluated in context. Accordingly, although an adverse
employment action must materially affect the terms, conditions,
or privileges of employment to be actionable, the determination of
whether a particular action or course of conduct rises to the level
of actionable conduct should take into account the unique
circumstances of the affected employee as well as the workplace
context of the claim.” (Id. at p. 1052.) “[T]he determination of
what type of adverse treatment properly should be considered
discrimination in the terms, conditions, or privileges of
employment is not, by its nature, susceptible to a mathematically
precise test, and the significance of particular types of adverse
actions must be evaluated by taking into account the legitimate
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interests of both the employer and the employee.” (Id. at
p. 1054.) We construe “the phrase ‘terms, conditions, or
privileges’ of employment” liberally and “with a reasonable
appreciation of the realities of the workplace.” (Ibid.)
“[A]n employer may be held liable for coworkers’ retaliatory
conduct if the employer knew or should have known of the
coworkers’ retaliatory conduct and either participated and
encouraged the conduct, or failed to take reasonable actions to
end the retaliatory conduct.” (Kelley v. The Conco Companies
(2011) 196 Cal.App.4th 191, 213.)
In this case, the City presented evidence that no adverse
employment action was taken against Munoz. After Munoz
instituted a complaint against Flores, he did not want to continue
working with Flores. Hearn provided several options to
accommodate Munoz’s request not to work with Flores. One
option was to continue to work at his same position in the same
building, but have his desk temporarily moved to a different part
of the same floor and report directly to Doyle. In other words,
Munoz could have chosen to continue working at his same job at
the Van Nuys office without any change, or he could have chosen
to work at the same job from a different desk at the Van Nuys
office and report directly to Doyle. The City did not require
Munoz to transfer to a different position or work from a different
location. Instead, Munoz chose a different option which allowed
him to report directly to Doyle and work on VFS Category 1 cases
from a location closer to his home. This evidence was sufficient to
meet the City’s burden to show that transferring Munoz to the
Davis facility was not an adverse action taken against Munoz for
filing a complaint, but rather a choice by Munoz that he preferred
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over continuing to work his VFS job supervising the arrest/filing
team at the Van Nuys office in proximity to Flores.
It’s undisputed that Munoz was given several options.
Requiring Munoz to choose among several options was not an
adverse employment action unless every option would have
materially affected the terms, conditions, or privileges of his
employment. In opposition to the motion, Munoz did not refute
that he could have continued to perform his same VFS job at the
Van Nuys office without change or from a desk in a different
location on the same floor. Furthermore, he did not present any
evidence that continuing his job at the Van Nuys office would
have materially affected the terms, conditions, or privileges of his
employment. As to the other options offered, Munoz later stated
that he would have taken the position with the elite CATS unit if
he had realized the unit operated from the Davis facility.
Munoz’s choice to transfer to a position where he would supervise
fewer people, have less complex work, and be closer to his home,
rather than continuing at his job at the Van Nuys office or taking
a desirable position offered with CATS, was not an employment
action against Munoz.
Munoz characterized the transfer to the Davis facility as
Hearn’s decision, but it was undisputed that Munoz was given
several options he declined, including the option to remain at the
Van Nuys location and a desirable CATS position. There was no
evidence from which a trier of fact could conclude the decision to
transfer Munoz to the Davis facility to work on Category 1 cases
was an adverse employment action taken against Munoz.
Munoz’s evidence did not raise a triable issue of fact as to
whether he suffered an adverse employment action, even when
viewed in the aggregate. Although Munoz submitted evidence
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that an employee transferred after making a complaint is often
perceived as being “at fault,” Munoz was not involuntarily
transferred, and there was no evidence that Munoz’s reputation
was in fact damaged. Hearn’s refusal to loan Munoz to another
command for a coveted specialized division is not evidence of an
adverse employment action without evidence that Munoz was
qualified for the position that he sought, and other less qualified
candidates were approved for similar loans. Hearn’s unofficial
audit of Munoz’s use of sick time, which Munoz was not aware
occurred, concluded Munoz’s use of sick time was appropriate.
Munoz was not criticized or counseled about his use of sick time;
there was not even a notation in his file to flag that his use of sick
time had been checked. Hearn’s comments or advice to Carranza
and Solano about supervising Munoz, although perceived to be
negative, did not affect the regard that Carranza and Solano had
for Munoz. A trier of fact could not conclude from the reputation
evidence submitted in this case, even considered in the aggregate,
that Munoz suffered an adverse employment action materially
affecting the terms, conditions, or privileges of his employment.
We note that the City’s decision to allow a different employee,
Flores, to continue working at her position was not an adverse
employment action taken against Munoz. The trial court
properly granted summary judgment on the ground that there
was no evidence of an adverse employment action.
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DISPOSITION
The judgment is affirmed. Respondent City of Los Angeles
is awarded its costs on appeal.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
WE CONCUR:
KIM, J.
DAVIS, 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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