Francis v. City of L.A. CA2/1

Filed 6/30/22 Francis v. City of L.A. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as specified by
rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JENNIFER FRANCIS, B301021
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC526258)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from the judgment of the Superior Court
of Los Angeles County, Holly J. Fujie, Judge. Affirmed.
Taylor & Ring, John C. Taylor, Natalie Weatherford;
McNicholas & McNicholas, Matthew S. McNicholas, Courtney
M. McNicholas; Esner, Chang & Boyer, Stuart B. Esner, Andrew
N. Chang, Holly N. Boyer and Kevin K. Nguyen for Plaintiff and
Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief
Deputy City Attorney, Scott Marcus, Chief Assistant City Attorney,
Blithe S. Bock, Managing Assistant City Attorney, and Jonathan H.
Eisenman, Deputy City Attorney for Defendant and Respondent.
Jennifer Francis, a criminalist with the Los Angeles Police
Department (LAPD), sued her employer, the City of Los Angeles
(the City), for violating Labor Code section 1102.5 on a theory of
whistleblower retaliation. After the court denied the City’s motion
for nonsuit, a jury found in favor of the City, and Francis appealed.
Among other arguments, Francis contends that a jury instruction
and the special verdict form were prejudicially erroneous. In
addition to opposing these contentions, the City argues that there
is no substantial evidence to support Francis’s claim and the court
should have granted its motion for nonsuit. We agree with the City
and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In February 1986, Sherri Rasmussen was murdered in her
Van Nuys home. She had been severely beaten and shot three
times in the chest area. During the LAPD’s initial investigation,
the “working theory” of the case was that the murder occurred
during a “botched burglary” by two men.
In 2003, the Rasmussen case was transferred to the cold
case unit of the LAPD’s robbery-homicide division. Cliff Shepard
was the cold case unit detective handling the case.
In 2004, Francis worked as a criminalist and DNA analyst
in the LAPD’s serology DNA unit. In late 2004, she responded to
a request from Shepard to perform DNA analysis of evidence in
the Rasmussen case. She reviewed the file and noted that a female
coworker of Rasmussen had threatened Rasmussen. The file also
revealed that Rasmussen had been bitten on her arm during the
attack and that investigators had taken a swab of the bite mark.
Francis learned that the swab had never been “booked into LAPD
evidence.” After making inquiries, she eventually located the swab
at the coroner’s office.
2
Francis analyzed the swab and detected a DNA profile of
a female other than Rasmussen. She informed Shepard of her
analysis. Based on this result and her review of the file, Francis
suspected that the attack on Rasmussen may not have occurred
during a burglary, but could have been “ ‘something more
personal.’ ”
In early 2005, Francis spoke with Shepard and raised the
possibility of investigating Rasmussen’s coworker. Shepard told
Francis, “ ‘This is a male/female burglary.’ ” Francis then asked
Shepard, “ ‘What about the other woman? What’s the other
woman’s name?’ ” Although Francis was asking about Rasmussen’s
coworker, Shepard responded, “ ‘You mean the LAPD detective?’ ”
When Francis asked, “What LAPD detective?” Shepard said that
Rasmussen’s husband had an “on-again, off-again relationship”
with a female LAPD detective. Shepard, however, told Francis
that the detective was not related to Rasmussen’s murder.1
In the spring of 2005, Francis again raised the possibility
of Rasmussen’s coworker as a suspect, but Shepard (in Francis’s
words) responded in a “really stern voice”: “ ‘This is a male / female
burglary.’ ” Francis took this to mean that she was not supposed to
ask any more questions about the case and, in March or April 2005,
she stopped working on it. At some point, the Rasmussen murder
file was transferred from the cold case unit back to the Van Nuys
division of LAPD.
In February 2009, Detective James Nuttall began
investigating the Rasmussen case. In the course of his review,
he found irregularities in the handling of the evidence and the
investigation, such as biological evidence that had been checked out
1
Shepard testified at trial that he never told Francis that an
LAPD officer had been cleared in Rasmussen’s case.
3
of the police evidence locker and never returned and the absence
of recorded interviews of witnesses, including Rasmussen’s
parents and coworkers. He spoke with John Ruetten, Rasmussen’s
husband, who informed Nuttall that his ex-girlfriend, LAPD officer
Stephanie Lazarus, is someone who may have wanted to harm
Rasmussen. Ruetten also told Nuttall that he had informed
LAPD of Lazarus during the initial murder investigation. Nuttall
also spoke with Rasmussen’s father, who said that he had made
many inquiries to the LAPD in the 1980’s and 1990’s to determine
whether someone had investigated Ruetten’s former girlfriend,
whom he identified as an LAPD officer. According to Nuttall,
however, the case file revealed no indication that anyone had
interviewed Lazarus or considered her a suspect.
Nuttall contacted Francis about her DNA analysis of the bite
swab. At that time, Nuttall considered Lazarus and Rasmussen’s
coworker persons of interest. Nuttall obtained a DNA sample
from the coworker, which did not match the DNA on the bite swab.
Detectives then obtained a DNA sample from Lazarus, which was
consistent with the DNA on the swab. The investigation was then
transferred to the robbery-homicide division of LAPD, where it was
handled by Detectives Dan Jaramillo and Greg Stearns.
On June 5, 2009, Lazarus was arrested for Rasmussen’s
murder.2
On June 10, 2009, Shepard sent Francis an email to
congratulate Francis on a promotion and, regarding the Rasmussen
2 Lazarus was convicted of Rasmussen’s murder in 2012,
and the conviction was affirmed by Division Eight of this court in
a published decision. (People v. Lazarus (2015) 238 Cal.App.4th
734, 742, 793.)
4
murder, to “admit that [Francis was] on the right track with the
love triangle theory.”
Prior to the preliminary hearing in the case against Lazarus
in December 2009, Francis became concerned that her testimony
at the hearing would bring to light the statements Shepard made
to her in 2005. Francis met with the prosecutor handling the
hearing and told her that “Shepard had cleared” Lazarus as a
suspect. According to Francis, the prosecutor told her that the
information might be Brady3 material and thus disclosed to the
defense.4
On March 25, 2010, Francis told her supervisor, Harry Klann,
that she did not want to work on the case against Lazarus. She
expressed her concern that her testimony would reveal her 2005
conversations with Shepard and she was afraid of repercussions by
the LAPD against her.
During this meeting, Francis told Klann about a dream she
had shortly after Lazarus was arrested. In the dream, Shepard
picked up Francis to drive her to court to testify. Shepard, however,
drove east on Interstate 10 and pulled off the road into some
tumbleweeds. Shepard put a gun on his leg and told Francis, “It’s
nothing personal, Jennifer, it’s just business,” then shot her.
After the meeting, Klann informed his supervisor, Jeff
Thompson, that Francis was raising questions about a cover-up
and conspiracy in the Rasmussen murder investigation and that
she was concerned that detectives might retaliate against her.
3 Brady v. Maryland (1963) 373 U.S. 83.
4 In the defense case, the deputy district attorney with whom
Francis spoke testified that she had no recollection that Francis
expressed concerns about Shepard’s handing of the Rasmussen
investigation.
5
Klann also told Thompson that Francis “was having trouble
sleeping” and “having trouble focusing or concentrating at work,
related to the Lazarus case.”
On May 26, 2010, Thompson asked Francis to his office so
that he could assess her “demeanor and emotional state.” Francis
told Thompson that she was concerned that her disclosures about
the Rasmussen murder investigation would embarrass LAPD
detectives. During the meeting, Thompson told Francis that he
understood that she was “a little stressed about the Lazarus case,”
and ordered her to see a psychologist with the LAPD’s behavioral
science services (BSS). Thompson explained during the trial in the
instant case that he did so because Francis “was having issues with
lack of sleep, issues with concentration,” and her work as a DNA
analyst requires that she “be very careful, very cognizant, [and]
pay very close attention to whatever [she is] doing.” According to
Thompson, BSS “can help people with issues,” and it is “not a bad
thing.”
Under LAPD policy, a mandatory referral to BSS can
generally be made only by the employee’s commanding officer.
Thompson testified at trial that he is not Francis’s commanding
officer and his ordering of Francis to BSS violated that policy.
Francis attended the required four BSS sessions with a
therapist. During the second session, the therapist told Francis
that Francis had been ordered to BSS because she sleeps with a
gun under her pillow. Francis, however, has never owned a gun
and never told anyone she slept with a gun. According to Francis,
she later talked to Klann and Thompson, who both said that she
was sent to BSS because she sleeps with a gun under her pillow.
During trial, Thompson denied this. According to Klann, Francis
had told him that Nuttall advised Francis to get a gun and to “keep
6
it close[,] like sleep with it under her pillow,” and Klann informed
Thompson of Francis’s statement.
Francis completed her BSS sessions in early June 2010.
During the last session, the therapist said that she had spoken
with Thompson and told Francis that ordering her to BSS was
“ ‘just a big misunderstanding’ ” and that Thompson “didn’t handle
the situation appropriately.”
About four weeks later, Francis arranged a meeting on
June 30, 2010 with Nuttall and Jaramillo to discuss her concerns
about her 2005 conversations with Shepard. Jaramillo brought
Detective Debra Winter to the meeting to be a “witness.” During
the meeting, Nuttall and Francis expressed their concerns about
the Rasmussen murder investigation and Shepard’s failure to
consider Lazarus as a suspect in 2005. Winter asked Francis
whether she was making an allegation of misconduct, and Francis
said she was not.
The day after the meeting, Klann (Francis’s supervisor) spoke
with Winter about the meeting. Winter told Klann that during the
meeting Francis had referred to an email she had brought with her,
but refused to provide it. Francis later identified the email as
Shepard’s June 10, 2009 email. According to Francis, she brought
the email to the meeting and gave it to Nuttall so that Nuttall
would have it in case “something happens to [her].”
Klann asked Francis for the email. Francis initially
responded that she did not have it, then told Klann she was not
comfortable providing it to him.
Klann then spoke with Thompson, who told Klann to order
Francis to provide the email. Klann did so, and Francis brought a
copy of the email to him about 15 minutes later.
On July 9, 2010, Thompson informed Francis that a deputy
district attorney, Beth Silverman, did not want Francis testifying
7
in cases Silverman was handling, including a high profile murder
case known as the “Grim Sleeper” case. Silverman had told
Thompson that Francis was “defense expert number one” [and]
“a tainted and problematic witness,” and that she did not “want
[Francis] touching her cases.” Silverman also told Thompson that
she “had heard things from [Detective] Stearns about [Francis].”5
In August 2010, Thompson met with Francis and told her
that Klann alleged that Francis had failed to turn over an email
that Klann had requested. Francis explained that she had turned
over the email to Klann 15 minutes after he requested it, and
complained that Klann was accusing her of dishonesty even though
Klann had falsely reported that she slept with a gun. Francis told
Thompson, “ ‘I want another supervisor.’ ” Thompson then “kind of
yelled” back to Francis: “ ‘You don’t get to pick your supervisor.’ ”
Francis further testified that, around this time period, she
had asked Thompson at least three times to have a supervisor
other than Klann, and was denied each time.
Francis believed that Klann thereafter set her up for failure.
On one occasion, Francis was scheduled to give a presentation to
a visiting delegation of the Japanese national police—what she
considered a “prestige” assignment. Klann sent an email to Francis
and two others saying that he needed someone “to review another
5 During the defense case, Silverman testified that she had
heard “talk in [the prosecutor’s] office and . . . discussions about
the fact that [Francis] was difficult to work with or that she wasn’t
really a team player or that she wanted to lead investigations and
be the one to direct things.” Silverman said that she did not ask
that Francis not testify in the Grim Sleeper case; rather, it was that
Silverman “needed one person . . . to be in charge of . . . all of the
DNA work [so that] we wouldn’t be sitting down and having to
communicate with . . . [10] or 12 or 15 different DNA experts.”
8
person in court.” Francis told Klann about her presentation to
the Japanese national police. Even though others were available
to observe the witness in court, Klann told her, “No. You don’t
need to do that. Watch [the witness in court].” When Francis
said she would talk to Thompson about it, Klann told her she
could go make her presentation.
Francis also cited as an incident of retaliation the fact
that Klann informed Francis that she would take Klann’s place
as a coordinator for a joint training academy with the Los Angeles
County Sheriff ’s Department. The assignment required her to
“scrambl[e] to find people to help [her] do it,” but they “managed
to do it.”
In response to Francis’s request to be transferred, Thompson
offered to transfer her to “quality assurance” “for a few years.”
Although the position would pay the same as her current position,
the transfer was to a “lower rank” position. Francis declined the
offer.
A short time later, Thompson’s supervisor, Greg Matheson
assigned Francis a new supervisor, Vince Anderson. Sometime
later, Anderson informed Francis that Klann “was possibly trying
to start something with me” by complaining that Francis had a
habit of answering questions with questions.
Francis worked for about 14 months under Anderson. During
this period, she testified as an expert less frequently than she had
previously.
In the spring of 2012, Francis had “had enough” and asked
to leave the serology unit so she could be away from Klann and
Thompson. In July 2012, she accepted an offer to work in the field
investigation unit where she would process crime scenes.
On November 13, 2013, Yvette Burney, Francis’s commanding
officer, emailed Francis stating that effective November 18, she
9
was ordered to report perceived acts of retaliation against her to
specified personnel. The email further stated that the order was
issued to insure Francis’s protection from retaliatory behavior.
Francis informed Burney that the order was inconsistent with
LAPD policy. Soon afterward, the order was rescinded.
In 2016, Francis asked for, and was granted, a transfer
to the toxicology unit. Later that year, she requested, and was
granted, a transfer back to the serology unit.
After Francis rested, the City moved for nonsuit. Among
other grounds, the City argued that Francis failed to prove that
the City had retaliated against her or that she suffered an adverse
employment action. The court reserved ruling on the motion, and
eventually denied it.
DISCUSSION
The single cause of action Francis asserted at trial is for
whistleblower retaliation in violation of Labor Code section 1102.5,
subdivision (b). The relevant version of that statute provided:
“An employer may not retaliate against an employee for disclosing
information to a government or law enforcement agency, where
the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.” (Lab.
Code, former § 1102.5, subd. (b); Stats. 2003, ch. 484, § 2, p. 3518.)
To prove a claim of retaliation under this statute, the
plaintiff “must demonstrate that he or she has been subjected to
an adverse employment action that materially affects the terms,
conditions, or privileges of employment.” (McRae v. Department
of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)
“Minor or relatively trivial adverse actions by employers or fellow
employees that, from an objective perspective, are reasonably likely
10
to do no more than anger or upset an employee do not materially
affect the terms or conditions of employment.” (Patten v. Grant
Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
1387 (Patten), disapproved on another point in Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, fn. 2;
see also McRae, supra, 142 Cal.App.4th at p. 386 [the fact that an
employee is displeased by an employer’s action does not elevate that
act to a materially adverse employment action].) This requirement
“ ‘ “guards against both ‘judicial micromanagement of business
practices’ [citation] and frivolous suits over insignificant slights.”
[Citation.] Absent this threshold showing, courts will be thrust
into the role of personnel officers, becoming entangled in every
conceivable form of employee job dissatisfaction.’ ” (McRae, supra,
at p. 387.)
The City contends that Francis failed to present substantial
evidence of an adverse employment action and that the court
therefore erred in denying its motion for nonsuit. Before addressing
the merits of this argument, we must address Francis’s contention
that the City cannot raise this argument because it did not file a
cross-appeal.
An order denying a motion for nonsuit is not appealable
(Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 55), and,
because the City was not aggrieved by the judgment, it did not have
standing to appeal from the judgment (Westside Center Associates v.
Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 520). The City,
therefore, acted appropriately in declining to file an appeal or
cross-appeal. The issue is thus whether the City, as a respondent
on appeal, can, in addition to opposing Francis’s contentions, raise
the court’s failure to grant its motion for nonsuit as an alternative
ground for affirmance. We hold that it can.
11
Under Code of Civil Procedure section 906, a respondent on
appeal “may, without appealing from [the] judgment, request the
reviewing court to [review,] and [the appellate court] may review[,
nonappealable interim rulings] for the purpose of determining
whether or not the appellant was prejudiced by the error or errors
upon which [the appellant] relies for reversal or modification
of the judgment from which the appeal is taken.” The purpose
of this rule “ ‘ “is to allow a respondent to assert a legal theory
which may result in affirmance of the judgment.” [Citation.]’ ”
(Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1121; accord, Khorsand v. Liberty Mutual Fire
Ins. Co. (2018) 20 Cal.App.5th 1028, 1034; Hong Sang Market,
Inc. v. Peng (2018) 20 Cal.App.5th 474, 487.) Thus, a nonappealing
defendant may “challenge the sufficiency of the [plaintiff ’s] evidence
to the extent that the challenge results in a holding that plaintiff
was not prejudiced by any errors.” (Carlotto, Ltd. v. County of
Ventura (1975) 47 Cal.App.3d 931, 935, fn. 4.)
Here, Francis contends: (1) the jury instructions and special
verdict form are erroneous and the court compounded these errors
by its responses to jury questions; (2) the court failed to excuse
several jurors for cause; (3) the court erroneously refused to issue
a sanction or admonition concerning the City’s alleged interference
with Francis’s efforts to depose her BSS therapist; (4) the court’s
response to a courtroom incident involving Silverman during
the defense case was an abuse of discretion; and (5) the court
erroneously admitted entire documents into evidence when only
certain pages should have been introduced. If, as the City contends,
Francis failed to establish a necessary element of her claim as a
matter of law and that nonsuit should therefore have been granted,
any such errors are harmless and need not be addressed.
12
“A defendant is entitled to a nonsuit if the trial court
determines that, as a matter of law, the evidence presented
by plaintiff is insufficient to permit a jury to find in his favor.
[Citation.] ‘In determining whether plaintiff ’s evidence is
sufficient, the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable
to plaintiff must be accepted as true and conflicting evidence
must be disregarded. The court must give “to the plaintiff[’s]
evidence all the value to which it is legally entitled, . . . indulging
every legitimate inference which may be drawn from the evidence
in plaintiff[’s] favor.” ’ [Citation.] A mere ‘scintilla of evidence’
does not create a conflict for the jury’s resolution; ‘there must be
substantial evidence to create the necessary conflict.’ [Citation.]”
(Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
“In reviewing a grant of nonsuit, we are ‘guided by the same rule
requiring evaluation of the evidence in the light most favorable to
the plaintiff.’ ” (Ibid.)
Here, it is undisputed that the City never terminated
Francis’s employment, and never demoted her, suspended her, or
denied her any pay. At the time of trial, her salary was greater
than it was prior to her work on the Lazarus case. Francis
did not offer evidence of any negative performance reviews.
Indeed, in January 2013, the LAPD issued a commendation report
recommending that Francis receive a police meritorious service
medal based on her work in the Rasmussen murder investigation
and her testimony in Lazarus’s trial, which Francis acknowledged
was the highest honor that she could receive as a civilian employee.
Francis contends that she suffered adverse employment
actions in the following ways: (1) she was improperly ordered to
attend therapy through BSS based on the false pretext that she
slept with a gun under her pillow; (2) she was “taken off high profile
13
cases after she made her disclosure”; (3) Thompson told Francis
that Klann had alleged she was being dishonest and had hidden
the June 10, 2010 email from Shepard; (4) Thompson once “kind
of yelled” to Francis: “ ‘You don’t get to pick your supervisor’ ”;
(5) Klann “interfered with her work or set[ ] her up for failure”
when he “tried to send [Francis] to review another person in court”
when she was scheduled to give a presentation to the Japanese
national police; (6) Klann tried to disrupt a preplanned vacation
by directing Francis to coordinate a training session with the
Los Angeles County Sheriff ’s Department; (7) After Anderson was
assigned as Francis’s supervisor, Klann complained to Anderson
that Francis liked to answer questions with more questions;
(8) Francis testified less frequently than before she made her
disclosures; and (9) In 2013, Francis’s commanding officer sent her
an email directing Francis to report perceived acts of retaliation in
a manner that violated LAPD policy.
Whether viewed in isolation or collectively, the evidence of
these actions is insufficient to permit a jury to find in Francis’s
favor. The direction to attend BSS therapy sessions, even if
Thompson ordered them in violation of LAPD policy and the order
was based on a pretext that Francis sleeps with a gun under her
pillow, did not materially affect the terms, conditions, or privileges
of Francis’s employment. (Cf. Caver v. City of Trenton (3d Cir.
2005) 420 F.3d 243, 255−256 [requirement that police officer
undergo a psychological evaluation was not an adverse employment
action for purposes of whistleblower retaliation claim].) Francis
was paid for her time during the four therapy sessions and they
were completed within one month. According to Thompson, the
therapy is “not a bad thing” and “can help people with issues.”
Although Francis argues that there is “a stigma” associated with
“being sent to BSS,” she points to no evidence of such a stigma or
14
other detrimental consequence in her case. She refers us to
Detective Nutall’s testimony that being “sent to BSS” “can be
viewed as a negative connotation.” Nutall, however, did not
indicate that anyone viewed Francis in a negative light as a
result of being ordered to BSS.6
The evidence that prosecutor Silverman decided she did not
want Francis working on her cases does not constitute substantial
evidence that the City or any of its employees subjected Francis to
an adverse employment action. Silverman is a Los Angeles County
Deputy District Attorney, not an employee of the City. Moreover,
there is no evidence that Silverman’s willingness to have Francis
work on her cases was a term, condition, or privilege of Francis’s
employment or, if it was, that Silverman’s decision was the result
of any action by the City or any LAPD personnel. Francis argues
on appeal that Silverman determined that Francis was a “ ‘tainted
and problematic witness’ ” based in part on comments made by
LAPD Detective Stearns. The only ostensible evidence on this
6 Francis also cites to the testimony of two defense witnesses.
One, a colleague of Francis’s in the DNA serology unit, testified that
“[t]here can be” a stigma attached to a BSS referral, but
“it is dependent on the person.” The second, a detective who
worked on the Rasmussen murder investigation, was asked by
Francis’s counsel during cross-examination whether a referral to
BSS “taint[s] the reputation of the person who’s been referred.”
The detective agreed with Francis’s counsel that people could be
referred to BSS because they were involved in a shooting incident
or exposed to “particularly gruesome suicide scenes,” and added
that BSS is also “there for people that are going through trauma
or . . . had a death in their family . . . . It’s not necessarily that the
person is emotionally unstable or things . . . of that nature.” Like
Nutall’s testimony, such testimony does not constitute substantial
evidence that Francis suffered any stigma by being ordered to BSS.
15
point, however, is Francis’s testimony that “Silverman had heard
things from Stearns about [Francis],” given in response to a
question as to whether Thompson told Francis that “Detective
Stearns made negative comments about [Francis] as a witness.”
Even if this triple hearsay (Thompson told Francis that Silverman
told Thompson that Silverman had “heard things from Stearns”)7
could be viewed as evidence that Stearns made unspecified negative
comments about Francis to Silverman, it does not support a
reasonable inference that such comments caused Silverman to
decide not to use Francis as a witness.
We can quickly dispose of Francis’s remaining contentions of
adverse employment actions. The fact that Thompson told Francis
that Klann had alleged she was being dishonest about failing to
produce Shepard’s June 10, 2010 email does not constitute an
adverse employment action. Aside from the evidence that Francis
initially falsely denied having the email, it does not appear from
the record that Klann’s allegation of dishonesty resulted in any
disciplinary action or other negative consequence to Francis.
The fact that Thompson once “kind of yelled” to Francis,
“ ‘You don’t get to pick your supervisor,’ ” is the kind of trivial
comment “that, from an objective perspective, [is] reasonably
likely to do no more than anger or upset an employee”; it does
“not materially affect the terms or conditions of employment.”
(Patten, supra, 134 Cal.App.4th at p. 1387.) The same is true
of Klann’s complaint to Anderson that Francis liked to answer
questions with more questions, as well as Klann’s incomplete
7 Just prior to the question whether Thompson had told
Francis that Stearns made negative comments about Francis, the
City’s counsel had interposed “a running objection” to Francis’s
counsel’s questions on this issue on hearsay grounds, among others.
16
attempt to stop Francis’s presentation to the Japanese national
police delegation and his direction that Francis lead a training
session with the Los Angeles Sheriff ’s Department.
Although Francis stated that she testified less frequently
after her disclosures about Shepard and the Rasmussen murder
investigation, she points to no evidence that frequently testifying
was a material term, condition, or privilege of her employment
or that any LAPD employee had anything to do with prosecutorial
decisions as to whether or when she testified in criminal cases.
Lastly, the 2013 order from Francis’s commanding officer
directing Francis to report perceived acts of retaliation in a
manner that violated LAPD policy cannot reasonably be viewed
as a material adverse employment action. The order, which was
ostensibly made for Francis’s protection, was, at worst, inconsistent
with LAPD policy and, once Francis pointed out that inconsistency,
was promptly rescinded. Any effect on her employment was brief
and inconsequential.
Whether the actions Francis relies on are viewed separately
or collectively, they do not constitute substantial evidence of
adverse employment actions that materially affected the terms,
conditions, or privileges of Francis’s employment. The evidence
was thus insufficient to permit a jury to find in her favor.
Accordingly, the court erred in failing to grant the City’s motion
for nonsuit. Because Francis does not claim that any errors she
complains of effect whether the nonsuit should have been granted,
we need not consider them.
17
DISPOSITION
The judgment is affirmed.
Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
MORI, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18