Marsh v. City of Signal Hill CA2/2 ( 2021 )

Filed 4/30/21 Marsh v. City of Signal Hill CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TERRI MARSH, B299228
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC663505)
v.
CITY OF SIGNAL HILL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mark V. Mooney, Judge. Affirmed.
Lyon Law and Geoffrey C. Lyon for Plaintiff and Appellant.
Pollak, Vida & Barer, Daniel P. Barer, Anna L. Birenbaum;
Aleshire & Wynder, David J. Aleshire, Glen E. Tucker and Laura
Walker for Defendant and Respondent.
_______________________
Terri Marsh served as Finance Director of the City of
Signal Hill (City) from December 2012 until she was terminated
in March 2017. Following her termination, Marsh sued the City
for disability and medical condition discrimination and
whistleblower retaliation in violation of the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), as well as
failure to accommodate and failure to engage in interactive
process. The trial court granted the City’s motion for summary
judgment and entered judgment in its favor. We conclude Marsh
failed to raise triable issues of material fact to support her FEHA
discrimination and retaliation claims or whistleblower claims,
and affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Marsh’s Cancer Treatment and Hiring by the City
Marsh was diagnosed with cancer in September 2012, prior
to being hired by the City. She underwent chemotherapy and
radiation treatment from late October through December 2012.
On October 26, 2012, the City made Marsh a written offer
of employment to serve as Administrative Services
Officer/Finance Director (Finance Director), an at-will position.
Marsh informed the City she was undergoing cancer
treatment and asked to delay her start until after her treatment
concluded. The City declined her request, as it wanted her to
overlap with her predecessor. The City manager told her she
could take time off as sick days if she needed to.
Marsh began her position as Finance Director on
December 14, 2012. At the time of her hiring she had been
taking medication for mild depression for a number of years. Her
doctor increased her dosage during her cancer treatment to
address increased anxiety and depression related to her cancer
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and treatment. Marsh told the then-City manager who hired her
that she was being treated for anxiety and depression.
Her last cancer treatment was on December 20, 2012.
B. Marsh’s Employment at the City
When Marsh began her employment with the City, she
supervised six employees. By the second half of 2014 there was a
staffing shortage and she requested additional staffing to deal
with the workload. The City manager at the time instructed
Marsh to take steps necessary so that the department functioned.
In response, Marsh hired contract employees.
Marsh hired these contractors under the City’s “emergency
purchases” purchasing policy. Although the costs for the
contractors exceeded the City manager’s $15,000 spending
authority without City Council approval, Marsh did not obtain
City Council approval for the cost during the two years the City
used the contractors and the $15,000 limit was exceeded.
In July 2014, Marsh asked the City for a four-week leave
for surgery to prevent a recurrence of her cancer, which the City
granted.
From 2014 to 2016, Marsh sometimes worked 48-hour
shifts and estimated that she sometimes worked 1,400 to 1,600
extra hours per year due to low staffing in the finance
department. Marsh was concerned that the stress from working
so many hours would cause her cancer to return.
In March 2016, the City determined that an employee
supervised by Marsh made errors in September 2015 that led to a
discrepancy of $3.1 million in the City/Successor Agency financial
statements.
In April 2016, Marsh reported to the City manager that
certain City vendors had not been paying business license fees, in
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violation of the municipal code. The City manager informed her
that it was customary not to charge the City’s vendors, and he did
not see a reason to stop granting such waivers.
In May 2016, Marsh informed the City manager she was
suffering from work-related stress from working so many hours
and requested a reduction. Her request did not include any
assertion that the reduction was needed as an accommodation of
a disability. In response, the City manager told Marsh she was
not required to work the hours that she had been working.
In June 2016, Marsh was notified she needed to obtain City
Council approval for the contract employee expenditures.
During her tenure, three finance department employees
complained about Marsh’s supervision and/or behavior. On
September 11, 2016, and November 12, 2016, City Account
Manager Joy Getz filed harassment/retaliation complaints
against Marsh.
In December 2016, Marsh received a fiscal year 2015–2016
performance evaluation rating her as “Below Standards” in the
areas of judgment, quality of work, and leadership inspection.
The evaluation cited her failure to obtain a council-approved
contract for the consulting services her department had used
since 2014 and for an accounting error that required a correction
on the City/Successor Agency financial statements. Marsh’s poor
rating in judgment was attributed to not always considering
available facts, resulting in some illogical decisions, and to her
supervisors’ tending to question and review her decisions. The
review noted that her work product frequently reflected a lack of
consideration for the factors of thoroughness, neatness, and
accuracy, and that an undue amount of review of her work was
necessary. As to leadership inspection, Marsh’s review noted she
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often did not recognize or correct problems. Based on the
$3.1 million financial statement error, she was advised that she
should improve her supervision of employees under her direction.
After her performance evaluation, the City manager also
identified that Marsh neglected to make timely payments on past
due invoices. The lack of timely payments resulted in supply
delays. It also caused Costco and Smart & Final to freeze the
City’s credit accounts, and caused Long Beach Gas to issue shut-
off notices. Marsh also did not verify the submission of the City’s
“check register” to Wells Fargo, causing checks to employees and
to City Council members to bounce.
In late December 2016, Marsh removed a key to the City’s
server room where the City’s financial information was kept
without telling City Account Manager Getz. When Getz sent an
e-mail expressing concern about the missing key, Marsh did not
respond until after Getz had the door rekeyed and filed a police
report.
On January 2, 2017, Marsh directed the City’s
Comprehensive Annual Financial Report (CAFR) to be published
on the City’s Web site. After City Council members expressed
concern that most City departments were over budget, Marsh
researched the CAFR with other City employees and realized
there were several errors in the report.
On January 12, 2017, Marsh made a claim with the City’s
Human Resources Department alleging that Getz had created a
hostile work environment.
C. Marsh’s Termination
On January 24, 2017, the City manager presented concerns
about Marsh’s credibility, leadership, and technical competence
to the City Council. The City placed Marsh on paid
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administrative leave the next day, pending an investigation
and/or continued review of her performance.
Marsh refused to resign and/or accept a severance
agreement in lieu of termination, and on March 7, 2017, she
received notice that the City manager intended to recommend
Marsh’s termination.
On March 14, 2017, the City manager presented a
performance evaluation and recommendation to the City Council
that Marsh should be terminated. The council unanimously
decided to terminate Marsh’s employment.
On March 14, 2017, Marsh received notice that the City
was terminating her employment as of March 15, 2017.
D. Marsh Alleges She Was Terminated Because of
Disability and Engaging in Protected Activity
On April 28, 2017, Marsh filed a complaint against the City
with the California Department of Fair Employment and
Housing (DFEH). She alleged that the City had taken adverse
actions against her because of (1) a disability, (2) engagement in
protected activity, (3) family care or medical leave, and
(4) medical conditions. She claimed that the City was aware she
had disabilities, “including anal cancer, anxiety, and related
symptoms,” but nevertheless denied her reasonable
accommodations, “including time off work for recuperation and
treatment.” She also alleged that she suffered high blood
pressure as the result of workplace stress and anxiety. DFEH
served a copy of the complaint on the City and issued Marsh a
Right to Sue Notice.
On May 31, 2017, Marsh sued the City. Her complaint
alleged claims for (1) disability discrimination (first cause of
action, Gov. Code, § 12940, subd. (a)); (2) failure to engage in good
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faith interactive process to determine reasonable disability
accommodation (second cause of action, id., subd. (n)); (3) failure
to reasonably accommodate disabilities (third cause of action, id.,
subd. (m)); (4) retaliation for opposing FEHA violations (sixth
cause of action, id., subd. (h)); (5) failure to prevent
discrimination, harassment, and retaliation (seventh cause of
action, id., subds. (j) & (k)); (6) medical condition discrimination
(eighth cause of action, id., subd. (a)); and (7) improper inquiry
into disability (ninth cause of action, id., subd. (f)). She also
alleged whistleblower retaliation claims (fourth cause of action,
Lab. Code, §§ 1102.5 & 1102.6; fifth cause of action, Gov. Code,
§ 8547 et seq.); and wrongful termination in violation of public
policy (tenth cause of action).
E. The City’s Motion for Summary Judgment
On December 28, 2018, the City moved for summary
judgment or, in the alternative, summary adjudication.
The trial court granted summary judgment in favor of the
City. In an oral ruling, the trial court explained that the
discrimination and retaliation causes of action failed because the
City had established a legitimate nondiscriminatory reason for
Marsh’s termination, based on her performance. The interactive
process and accommodation causes of action failed for lack of
evidence that Marsh had an impairment that required
accommodation. The trial court also concluded that Marsh had
conceded summary adjudication of her fifth and ninth causes of
action and her punitive damages prayer (because punitive
damages are not available against a public entity).
Accordingly, the trial court entered judgment for the City.
This appeal followed.
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DISCUSSION
A. Standard of Review
Summary judgment is proper when “all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review a
trial court’s grant of summary judgment de novo, considering the
evidence set forth in the papers, except that to which objections
were sustained, and independently determine whether triable
issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 286; Schachter v.
Citigroup, Inc. (2009) 47 Cal.4th 610, 618; Husman v. Toyota
Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1179 (Husman).)
In so doing, we view the evidence in the light most favorable to
the nonmoving party. (Schachter, at p. 618; Miller v. Department
of Corrections (2005) 36 Cal.4th 446, 470 [on appeal from an
order granting summary judgment, “a reviewing court must
examine the evidence de novo and should draw reasonable
inferences in favor of the nonmoving party”].)
“When a defendant moves for summary judgment in a
situation in which the plaintiff would have the burden of proof at
trial by a preponderance of the evidence, the defendant may, but
need not, present evidence that conclusively negates an element
of the plaintiff's cause of action.” (Husman, supra, 12
Cal.App.5th at p. 1179–1180.) Or, the defendant may present
evidence to “ ‘show[ ] that one or more elements of the cause of
action . . . cannot be established’ by the plaintiff.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see Code Civ.
Proc., § 437c, subd. (p)(2).) “ ‘ “ ‘The moving party bears the
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burden of showing the court that the plaintiff “has not
established, and cannot reasonably expect to establish,” ’ the
elements of his or her cause of action.” ’ ” (Ennabe v. Manosa
(2014) 58 Cal.4th 697, 705; accord, Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 720.)
If the moving party’s initial burden has been met, “the
burden shifts to the plaintiff to demonstrate, by reference to
specific facts, not just allegations in the pleadings, there is a
triable issue of material fact as to the cause of action.” (Husman,
supra, 12 Cal.App.5th at p. 1179, citing Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
p. 850.) “[S]ummary judgment cannot be granted when the facts
are susceptible of more than one reasonable inference.” (Rosas v.
BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
B. Governing Law
Among other things, FEHA prohibits employers from
terminating an employee because of a medical condition or
physical disability. (Gov. Code, § 12940, subd. (a).) Under
FEHA’s retaliation provision, an employer may not “discharge,
expel, or otherwise discriminate against any person because the
person has opposed any practices forbidden under” FEHA. (Id.,
subd. (h).) “Because the FEHA is remedial legislation, which
declares ‘[t]he opportunity to seek, obtain and hold employment
without discrimination’ to be a civil right [citation], and expresses
a legislative policy that it is necessary to protect and safeguard
that right [citation], the court must construe the FEHA broadly,
not . . . restrictively.” (Robinson v. Fair Employment & Housing
Com. (1992) 2 Cal.4th 226, 243; see Gov. Code, § 12993, subd. (a)
[provisions of the statute “ ‘shall be construed liberally’ ”].)
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To establish a prima facie case for unlawful discrimination,
a plaintiff must provide evidence that “(1) he [or she] was a
member of a protected class, (2) he [or she] was qualified for the
position he [or she] sought or was performing competently in the
position he [or she] held, (3) he [or she] suffered an adverse
employment action, such as termination, demotion, or denial of
an available job, and (4) some other circumstance suggests
discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 355 (Guz).) “Employees may establish a prima facie
case of unlawful retaliation by showing that (1) they engaged in
activities protected by the FEHA, (2) their employers
subsequently took adverse employment action against them, and
(3) there was a causal connection between the protected activity
and the adverse employment action.” (Miller v. Department of
Corrections, supra, 36 Cal.4th at p. 472; accord, Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
“Under FEHA medical condition and physical disability are
separate bases for improper discrimination, each with its own
statutory definition.” (Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 584.) Physical disability includes
“[h]aving any physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss that” both affects one or more
of the body’s major systems and “[l]imits a major life activity.”
(Gov. Code, § 12926, subd. (m)(1)(A), (B).) Major life activity is
“broadly construed” and includes working. (Id., subd.
(m)(1)(B)(iii).) FEHA protects individuals not only from
discrimination based on an existing physical disability, but also
from discrimination based on a potential disability or the
employer’s perception that the individual has an existing or
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potential disability. (Gov. Code, §§ 12926, subd. (m)(4), (5),
12926.1, subd. (b).)
FEHA defines “ ‘[m]edical condition’ ” as either “[a]ny
health impairment related to or associated with a diagnosis of
cancer or a record or history of cancer” or a genetic characteristic.
(Gov. Code, § 12926, subd. (i)(1), (2); see also Cal. Code Regs.,
tit. 2, § 11065, subd. (d)(7) [“ ‘Medical condition’ is a term
specifically defined at Government Code section 12926, to mean
either: [¶] (A) any cancer-related physical or mental health
impairment from a diagnosis, record or history of cancer; or [¶]
(B) a ‘genetic characteristic’ ”].) Unlike the definition of physical
disability, there is no requirement that a medical condition limit
a major life activity in order to be protected.
An employer is entitled to judgment as a matter of law
against an employee’s FEHA discrimination claim if the employer
sets forth competent, admissible evidence of reasons, unrelated to
discrimination against the protected class, for the relevant
employment action; and the employee fails to rebut that showing.
(Guz, supra, 24 Cal.4th at pp. 357–358.) The same standard
applies to retaliation causes of action: If the employer sets forth
sufficient evidence of nonretaliatory reasons for the challenged
decision, which the employee fails to rebut, the employer is
entitled to summary judgment. (Morgan v. Regents of University
of California (2000) 88 Cal.App.4th 52, 75 [retaliation causes of
action under Labor Code section 1102.5 and FEHA].)
C. The City Established Legitimate
Nondiscriminatory Business Reasons for Marsh’s
Termination
The summary judgment record demonstrates the City had
legitimate, nondiscriminatory reasons for discharging Marsh that
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were nonpretextual. The City established that over a period of
time, unrelated to any discriminatory or retaliatory motive, it lost
confidence in her performance and terminated her.
As a supervisor, Marsh was responsible for her
department’s accounting errors that resulted in a $3.1 million
financial statement error and in the publication of the City’s
annual report with errors. Accounting errors in financial reports,
as well as lack of oversight leading to unpaid bills and bounced
checks, is a legitimate business reason for the City’s loss of
confidence in Marsh’s ability to do her job as Finance Director.
So is hiring contract employees outside of established budget
parameters without the permission of the City Council. That
three Finance Department employees she supervised made
complaints against her also suggested that Marsh was ineffective
as a manager.
The City thus successfully shifted the burden to Marsh to
show that her termination was substantially motivated by
impermissible bias or retaliation, and that the City’s stated
grounds for terminating her were a pretext for discrimination or
retaliation. (See Guz, supra, 24 Cal.4th at pp. 357–358.)
D. Marsh Failed To Raise a Triable Issue of Fact as to
Whether Her Termination Was Substantially
Motivated by Discriminatory Bias or Unlawful
Retaliation
Marsh failed to raise a triable issue of fact supporting the
conclusion that the City actually discharged her in response to
disability or medical condition, or in retaliation for complaints
about prohibited actions. Doing so requires “evidence supporting
a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s
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actions.” (Guz, supra, 24 Cal.4th at p. 361.) “The stronger the
employer’s showing of a legitimate, nondiscriminatory reason, the
stronger the plaintiff’s evidence must be in order to create a
reasonable inference of a discriminatory motive.” (Featherstone
v. Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1159.) An employee may demonstrate pretext
by showing “ ‘ “the proffered reason had no basis in fact, . . . did
not actually motivate the discharge, or, . . . was insufficient to
motivate discharge.” ’ ” (Soria v. Univision Radio Los Angeles,
Inc., supra, 5 Cal.App.5th at p. 594.) Pretext may also be
inferred from the termination decision’s timing, the decision-
maker’s identity, and the employee’s pretermination job
performance. (Ibid.)
Although “[r]etaliation claims are inherently fact-specific”
(Yanowitz, supra, 36 Cal.4th at p. 1052), “an employee’s
unarticulated belief that an employer is engaging in
discrimination will not suffice to establish protected conduct for
the purposes of establishing a prima facie case of retaliation,
where there is no evidence the employer knew that the
employee’s opposition was based upon a reasonable belief that
the employer was engaging in discrimination.” (Id. at p. 1046.)
“[C]omplaints about personal grievances or vague or conclusory
remarks that fail to put an employer on notice as to what conduct
it should investigate will not suffice to establish protected
conduct.” (Id. at p. 1047; accord, Castro-Ramirez v. Dependable
Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.)
Here, Marsh provided no evidence of pretext beyond her
own subjective beliefs. As the trial court concluded, “there was
just no actual evidence of pretext, no evidence of anything that
anybody said, any memo, any document.” “[T]here was a lot of
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material I read about how other people may have been at fault
for some of these problems, that she did have some positive
reviews in her performance, but . . . you need the evidence of
pretext that . . . they really fired her because of either her
medical condition or because of . . . the complaints she made
regarding these fees.” On appeal, Marsh fails to show otherwise.
E. Marsh Failed To Raise a Triable Issue of Fact on
Failure to Accommodate or Failure to Engage in the
Interactive Process
Marsh fails to show how her cancer history, anxiety, or
depression was a limitation on her ability to perform her job that
the City knew required accommodation. At most, she alleges that
the City knew about her cancer history and her anxiety and
depression, and that she raised concerns about overwork in 2016.
However, unless an employer is on notice of specific
limitations caused by a disability or medical condition, an
employee cannot prevail on a claim of failure to provide
accommodation. (E.g., Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 727, 739 [doctor’s note
that employee needed quiet place to work, and employee’s request
for accommodation for an unspecified learning disorder, failed to
put employer on notice of the actual limitations his asthma and
dyslexia caused].) Marsh fails to point to evidence raising a
triable factual issue that during the relevant statute of
limitations period—April 2016 to April 2017—she advised the
City of any limitation to her ability to perform her job, caused by
her cancer diagnosis or anxiety, that required an accommodation
the City refused her. Rather, throughout her employment,
Marsh was able to perform all essential functions of her job.
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In her opening brief, Marsh concedes that “there were no
physical manifestations of [her] cancer throughout the entire
period of employment”, she was given the time off she requested
for surgery to prevent cancer recurrence, and her City medical
file does not include any information about a medical condition or
medical notes requesting accommodations for a disability.
Marsh contends that she requested reduced hours in 2016
as an accommodation because she was afraid her cancer might
recur if she became too stressed. However, her request did not
include any assertion that the reduction was needed as an
accommodation of a disability, and she was informed that she
was not required to work the hours that she had been working.
She further argues that the City failed to accommodate her by
not investigating or otherwise addressing alleged threatening
comments from Getz, one of the employees in Marsh’s
department.
Marsh acknowledges that the City told her she was not
required to work the hours that she had complained were
excessive. And she does not point to any particular limitation on
her ability to perform her job that Getz’s alleged threats caused,
or any particular accommodation that she requested as a result of
those threats.
FEHA does not guarantee employees a stress-free or
noncontentious working environment. (Doe, supra, 43
Cal.App.5th at p. 735.) “ ‘ “Work places are rarely idyllic
retreats.” ’ ” (Ibid.) In particular, “relationships between
supervisors and their subordinates can often be contentious.” (Id.
at p. 737.) As the City’s Finance Director, the stresses of juggling
major annual reports, day-to-day financial operations, and
dealing with both superiors in the City and subordinates in her
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department were inherent in such a high-level job. “FEHA was
not designed to make workplaces more collegial; its purpose is to
eliminate more insidious behavior like discrimination and
harassment based on protected characteristics.” (Ibid.)
F. The City Did Not Omit Marsh’s Deposition From
the Record
Marsh also contends as a procedural challenges to the trial
court’s grant of summary judgment that the City did not lodge,
file, or serve volume I of her deposition. However, on September
7, 2018, the City filed a notice of lodging of volume I of the
deposition transcript and video of Marsh, which Marsh does not
dispute in her reply brief. Although portions of a deposition
transcript lodged before a summary judgment hearing but not
“introduced into evidence” are not part of the record on appeal
(see, e.g., Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950,
961–962), here the City put portions of the lodged transcript into
evidence by citing portions in its separate statement.
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DISPOSITION
The trial court’s judgment is affirmed. The City of Signal
Hill is entitled to its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P.J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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