Dinslage v. City and County of San Francisco , 5 Cal. App. 5th 368 ( 2016 )

Filed 11/09/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
DAVID P. DINSLAGE,
Plaintiff and Appellant,
A142365
v.
CITY AND COUNTY OF SAN (San Francisco County
FRANCISCO et al., Super. Ct. No. CGC11512096)
Defendants and Respondents.
David P. Dinslage is a former employee of Recreation and Parks Department (the
Department) of the City and County of San Francisco (the City). As part of a large-scale
restructuring of the Department‘s recreation programs, Dinslage‘s employment
classification was eliminated, and he was one of a large number of employees who were
laid off. Although he applied to be rehired in a newly created classification, he was not
offered a position. He then retired from City employment.
Dinslage sued the Department, the City, and a number of the Department‘s
managerial employees for age discrimination, retaliation, and harassment in violation of
the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940,
subds. (a), (h), (j).)1 He claimed the Department had taken a number of adverse
employment actions against him based on his age. In addition, he claimed he had been
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.
1
All statutory references are to the Government Code.
1
retaliated against and harassed because of his age and his opposition to Department
actions that discriminated against people with disabilities.
Respondents, defendants below, moved for summary judgment on all of
Dinslage‘s causes of action. They claimed, with supporting evidence, that their actions
were taken for legitimate, nondiscriminatory reasons. Dinslage opposed the motion, but
the trial court agreed with respondents and granted them summary judgment on all counts
of Dinslage‘s complaint.
Dinslage now appeals, contending there were triable issues of fact on his age
discrimination and retaliation claims. In accordance with our standard of review, we
have examined the record de novo. In the unpublished portion of our opinion, we
conclude the trial court did not err in granting summary judgment to respondents on
Dinslage‘s age discrimination claim.
In the published portion of our opinion, we hold the superior court properly
granted summary judgment on Dinslage‘s retaliation claim because he failed to make out
a prima facie case of retaliation. To prevail, Dinslage was required to show he suffered
an adverse employment action because he had engaged in a ―protected activity.‖ We
hold that Dinslage‘s opposition to Department policies and practices he viewed as
discriminating against disabled members of the general public is not protected activity
because his opposition was not directed at an unlawful employment practice. Thus,
Dinslage could not reasonably have believed the practices he opposed were prohibited by
the FEHA.
FACTUAL AND PROCEDURAL BACKGROUND
Because this case comes to us after a grant of summary judgment, we take the
facts from the parties‘ separate statements of undisputed material facts and the evidence
filed in support of and opposition to the motion. (See Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 175.)
Dinslage’s Employment with the Department
Dinslage worked for the Department from June 1972 until his retirement in August
2010. He was employed in the Department‘s recreation division, which provides a range
2
of recreational programs and activities for people of all ages and abilities in the arts,
sports and athletics, and leisure and community services.
Dinslage served initially as an assistant recreation director (classification 3280),
working at playgrounds providing sports and recreational activities for children and
adults. In 1985, he was promoted to the position of 3284 recreation director, where he
oversaw recreational activities for the public, including children and adults with
disabilities. In approximately 1998, Dinslage became the coordinator of assistive
services, working almost exclusively on activities for children and adults with
disabilities. The main activities Dinslage organized were annual parties—a rock and roll
party, a Halloween party, a Thanksgiving luncheon, and a Christmas luncheon, as well as
other small scale activities for people with disabilities.
Beginning in 2006, the Department began to consider relocating an event known
as Jimmy‘s Old Car Picnic, a car show it had held in Golden Gate Park‘s Speedway
Meadow since 1988. The car show‘s organizers donated proceeds from the show every
year to fund Department activities for persons with disabilities, including Dinslage‘s
parties. The reason the Department considered relocation was growing concern in the
community and in the Department about the damage to the meadow caused by the event.
Dinslage participated in a meeting involving the Mayor‘s office and the Department‘s
Director of Operations, Dennis Kern, in which Dinslage and the car show‘s organizers
opposed the Department‘s effort to change the location of the event. In February 2010,
the Recreation and Park Commission (the Commission) held a hearing regarding the
future of the car show. Ultimately, the Commission voted to continue the car show at
Speedway Meadow after the organizers agreed to take certain mitigation measures.
The Department’s Decision to Focus on Inclusive Programs for the Disabled
In the years before 2010, the Department had concluded its existing activities were
not adequately meeting the needs of the disabled community, largely because the
Department was not providing the disabled with sufficient access to the programs
available to the general public. The Department decided to change its focus from
providing separate, segregated programs to people with disabilities to ensuring all of the
3
Department‘s programs were accessible. The Department changed Dinslage‘s title to
inclusion coordinator, a position responsible for improving access for persons with
disabilities to all of the Department‘s recreational activities and programs. In 2009 and
2010, the Department eliminated many of the special events Dinslage organized, as they
were segregated events.
In September 2009, the Department hired Ana Alvarez as superintendent of
citywide services. One of her primary responsibilities was to implement the restructuring
of recreation services to focus more on inclusion. Dinslage disagreed with these
programmatic changes, and together with other Department employees, he met with his
superiors to express his disagreement. Dinslage‘s refusal to accept and implement the
changes was reflected in his final performance evaluation, which covered the period
July 1, 2009 to August 14, 2010. Alvarez rated Dinslage as not meeting objectives in
nearly all rating categories. She also gave him ―development needed‖ ratings in several
performance categories and an overall rating of three on a nine-point scale, a rating which
meant Dinslage ―[did] not meet Reporter‘s expectations for overall performance for this
position.‖
The Department’s Reorganization
Based on a 2004 assessment from an outside consultant, the Department decided
to restructure its programs and create a new recreation model that would better reflect
national trends and best practices in providing appropriate recreation services to all
members of the public. In 2007, the Department developed a reorganization plan. The
plan concluded the Department‘s model for recreation service delivery was ―no longer
fiscally sustainable.‖ It recommended that the Department ―focus on key recreation
programs‖ for which the Department could be the premier provider and ―consolidate
recreation staff at principal sites to enable the level of recreation service delivery required
by our mission statement.‖
One factor driving the Department‘s reorganization was a City budget crisis that
required the Department to cut costs for several consecutive years to meet certain
budgetary goals. For fiscal year 2010-2011, then-Mayor Gavin Newsom instructed the
4
Department to contribute $12.4 million to help balance the City‘s budget. The
Department developed a plan to raise $8.7 million in revenue and reduce expenditures by
$3.7 million. In February 2010, the Department presented its new recreation model to the
Commission as part of its budget proposal for fiscal year 2010/2011. The Commission
approved the budget proposal and new model. The new model restructured recreation
into four citywide competencies: community services, sports and athletics, cultural arts,
and leisure services, as well as making other changes to improve delivery of recreation
services.
As part of this restructuring, the Department discontinued two employee
classifications—3284 recreation director (Dinslage‘s position) and 3287 assistant
recreation supervisor. In their place, the Department established four new classifications,
including 3286 recreation facility/program coordinator. The Department worked closely
with the City‘s Department of Human Resources (DHR) in creating the new positions
and laying off employees in the eliminated positions.
Dinslage’s Layoff and Unsuccessful Application for Rehiring
In March 2010, the Department notified employees in the 3284 classification,
including Dinslage, they would be laid off as of May 8, 2010. Approximately 148
employees were laid off from the 3284 and 3287 classifications. Dinslage and other
employees were encouraged to apply for various new positions, including 3283 recreation
specialist, 3286 recreation coordinator, 3279 recreation leader and 3289 recreation
supervisor.
In March 2010, Dinslage applied for a 3286 recreation coordinator position by
completing an online written application and a position based test that had been
developed by DHR. After scoring the exam and reviewing the candidates‘ training and
experience, the Department ranked the qualified applicants, including Dinslage, on an
eligible list. The civil service certification rule was ―Rule of List,‖ meaning everyone on
the list could be considered for a position. DHR referred the eligible candidates to the
Department which conducted a multi-step selection process for available positions.
5
Dinslage and 168 other candidates submitted timely supplemental applications.
Approximately 107 candidates applied for program coordinator positions and 62,
including Dinslage, applied for facility coordinator. Next, the Department invited all 169
applicants to interview on June 24 and 25, 2010. These candidates were screened for a
second interview.
Dinslage and over 100 other candidates advanced to the second round of
interviews. Three member panels consisting of managers from within the Department
interviewed all the candidates using a set of prepared interview questions. The
Department‘s guidelines contained three scoring categories: (a) ―5 - Superior‖; (b) ―3 –
Satisfactory‖ and (c) ―1 – Unsatisfactory.‖ Panelists asked candidates three basic
questions and scored candidates on each.
The panel that interviewed Dinslage consisted of Kern and managers Lorraine
Banford and Chris Boettcher. Dinslage performed poorly in the interview. The panelists
found him negative and resentful. Boettcher said Dinslage ―dismissed the whole
reorganization and the need for it.‖ Dinslage criticized the new recreation model and the
change in programming from an emphasis on adaptive recreation to inclusion.
Dinslage‘s responses suggested to the panelists that he would work against the goals of
the reorganization.
Each panelist independently scored Dinslage on each question and those scores
were averaged. Dinslage received mostly 2‘s and 3‘s with an overall average of 2.67,
less than the satisfactory score of 3. Following the interviews, top managers of the four
recreation competencies met to discuss the remaining candidates. The only candidates
considered were those who had received scores of 3 or above during the interview.
Dinslage was not selected for any of the 3286 recreation coordinator positions based on
his performance during the interview.
Dinslage retired from City employment effective August 29, 2010.
Dinslage’s Action
Dinslage filed his original Complaint on June 29, 2011, alleging causes of action
against the City, Kern, Department General Manager Phil Ginsburg, and the Service
6
Employees International Union, Local 1021 (SEIU).2 He filed the SAC on July 13, 2012.
After the trial court sustained a demurrer to one of Dinslage‘s causes of action, there
remained two pleaded claims—one for age discrimination against the City and the
Department (§ 12940, subd. (a)), and one for harassment based on age against defendants
Kern and Ginsburg (§ 12940, subd. (j)). The SAC also alleged retaliation, although it did
not set out these allegations in a separate cause of action.
On December 24, 2013, defendants moved for summary judgment on all of
Dinslage‘s claims. As to his age discrimination claim, they contended Dinslage could not
establish a prima facie case, and even if he could, the Department had legitimate,
nondiscriminatory reasons for its actions. Defendants advanced three such reasons for
the alleged adverse employment actions against Dinslage: (1) the Department‘s changes
to its programs and services for people with disabilities necessitated the elimination of
the events Dinslage organized; (2) budgetary constraints and reforms to reflect best
recreation practices required reductions in the Department‘s workforce; and (3)
Dinslage‘s outspoken opposition to the Department‘s new focus on inclusive programs
for the disabled raised concerns that he would not assist in implementing its new
recreation model.
2
At some point following the Department‘s reorganization, the SEIU initiated a
grievance proceeding on behalf of all affected members in certain specified
classifications. Dinslage was among this group of employees. The SEIU maintained
Dinslage had been discriminated and retaliated against because of his opposition to the
proposed elimination of the car show and his speaking in favor of Department employees
who were about to lose their jobs.
The record is unclear on the outcome of this grievance proceeding. The operative
second amended complaint (SAC) alleges that the SEIU informed Dinslage that his
grievance had been processed, but failed to advise him about the results of the
proceedings or possible remedies. It further alleges Kern and Ginsburg improperly
influenced union representatives to terminate the grievance process. Dinslage‘s original
complaint contained a cause of action against the SEIU for breach of duty of fair
representation, but that cause of action was omitted from the SAC, which does not list the
SEIU as a defendant. Neither the outcome of the grievance nor the allegations against the
SEIU are relevant to this appeal, and we will not discuss them further.
7
With regard to Dinslage‘s retaliation claim, defendants contended both that he
could not make out a prima facie case because he had not engaged in protected activity
for purposes of the FEHA and that it had legitimate, nondiscriminatory reasons for its
actions. In particular, defendants argued Dinslage had never complained about any
discrimination against himself or another employee prohibited by the FEHA. To the
extent he had complained about discrimination at all, it concerned what Dinslage
believed to be Department actions resulting in discrimination against members of the
general public.
On March 25, 2014, the court granted the defendants‘ motion in its entirety. The
court entered judgment on May 15, 2014. Dinslage then filed this appeal.
DISCUSSION
Dinslage raises two arguments in his opening brief. First, he contends there are
triable issues of fact on his age discrimination claim. Second, he argues there is evidence
the Department retaliated against him for supporting and promoting the rights of the
disabled community. We will address these arguments after setting forth the relevant law
and our standard of review.3
I. Governing Law and Standard of Review
―Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes.‖ (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) In
employment discrimination cases under the FEHA, California has adopted the three-stage
burden-shifting test established by the United States Supreme Court to analyze disparate
3
On review of a grant of summary judgment, we may disregard assertions or contentions
not raised in a properly headed argument. (Roberts v. Lomanto (2003) 112 Cal.App.4th
1553, 1562; see Cal. Rules of Court, rule 8.204(a)(1)(B) [―Each brief must: . . . State each
point under a separate heading or subheading summarizing the point‖].) Thus,
―[a]lthough we address the issues raised in the headings, we do not consider all of the
loose and disparate arguments that are not clearly set out in a heading and supported by
reasoned legal argument.‖ (Provost v. Regents of University of California (2011) 201
Cal.App.4th 1289, 1294.) To the extent Dinslage‘s opening brief contains arguments not
set out under distinct headings, we decline to entertain them.
8
treatment claims of age discrimination. (Ibid., citing Texas Dept. of Community Affairs v.
Burdine (1981) 450 U.S. 248 and McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792). At trial, this test initially requires a plaintiff to establish a prima facie case of
discrimination. (Guz, supra, 24 Cal.4th at p. 354; Hersant v. Department of Social
Services (1997) 57 Cal.App.4th 997, 1002 (Hersant).) The plaintiff must generally
provide evidence that: (1) he was a member of a protected class, (2) he was qualified for
the position he sought or was performing competently in the position he held, (3) he
suffered an adverse employment action, such as termination, demotion, or denial of an
available job, and (4) some other circumstance suggests discriminatory motive. (Guz,
supra, 24 Cal.4th at p. 355.)
If the plaintiff satisfies this prima facie burden at trial, a presumption of
discrimination arises, and the defendant must put forth legitimate, nondiscriminatory
reason for its actions. (Guz, supra, 24 Cal.4th at p. 355.) If the defendant does so, the
plaintiff must then rebut these nondiscriminatory reasons with evidence of pretext.
(Hersant, supra, 57 Cal.App.4th at pp. 1004-1005 [the employee ―must offer substantial
evidence that the employer‘s stated nondiscriminatory reason for the adverse action was
untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the employer
engaged in intentional discrimination‖].) If the employer meets this burden, the
presumption of discrimination disappears. (Guz, supra, 24 Cal.4th at p. 356.) The
plaintiff may then attack the employer‘s proffered reasons as mere pretexts for
discrimination or offer other evidence of discriminatory motive, but the ultimate burden
of persuasion remains on the plaintiff. (Ibid.)
―A defendant employer‘s motion for summary judgment slightly modifies the
order of these showings. If, as here, the motion for summary judgment relies in whole or
in part on a showing of nondiscriminatory reasons for the discharge, the employer
satisfies its burden as moving party if it presents evidence of such nondiscriminatory
reasons that would permit a trier of fact to find, more likely than not, that they were the
basis for the termination. [Citations.] To defeat the motion, the employee then must
9
adduce or point to evidence raising a triable issue, that would permit a trier of fact to find
by a preponderance that intentional discrimination occurred. [Citations.] In determining
whether these burdens were met, we must view the evidence in the light most favorable
to plaintiff, as the nonmoving party, liberally construing [his] evidence while strictly
scrutinizing defendant‘s. [Citation.]‖ (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th
1088, 1097-1098.)
On appeal from a grant of summary judgment, we review the record de novo.
(Guz, supra, 24 Cal.4th at p. 334.) ―[A]lthough we use a de novo standard of review
here, we do not transform into a trial court.‖ (Morgan v. Imperial Irrigation Dist. (2014)
223 Cal.App.4th 892, 913.) ― ‗On review of a summary judgment, the appellant has the
burden of showing error, even if he did not bear the burden in the trial court. [Citation.]
. . . . As with an appeal from any judgment, it is the appellant‘s responsibility to
affirmatively demonstrate error and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting authority. In other words,
review is limited to issues which have been adequately raised and briefed.‖ [Citation.]‘
[Citation.]‖ (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.)
To meet this burden on an appeal from a grant of summary judgment, an appellant
must ―direct the court to evidence that supports his arguments.‖ (Hodjat v. State Farm
Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 (Hodjat), italics added.)
―Moreover, an appellant is required to not only cite to valid legal authority, but also
explain how it applies in his case. [Citation.] It is not the court‘s duty to attempt to
resurrect an appellant‘s case or comb through the record for evidentiary items to create a
disputed issue of material fact.‖ (Ibid.) An appellant who fails to pinpoint the evidence
in the record indicating the existence of triable issues of fact will be deemed to have
waived any claim the trial court erred in granting summary judgment. (Guthrey v. State
of California (1998) 63 Cal.App.4th 1108, 1115-1116 (Guthrey).)
10
II. The Trial Court Properly Granted Summary Judgment on Dinslage’s Age
Discrimination Claim, Because Dinslage Failed to Rebut the Department’s
Showing of Legitimate, Nondiscriminatory Reasons for its Actions.
Dinslage contends there are disputed issues of fact regarding his age
discrimination claim. His argument is not a model of clarity, but he appears to contend
his claim is viable because he is over 40 years of age and the decision not to rehire him
had an adverse effect on him. In addition, he asserts that discrimination may be inferred
from evidence of threats against him, comments that he was targeted for elimination by
the Department, and the failure of the Department to observe proper layoff procedures.
A. Dinslage Did Not Plead a Disparate Impact Claim.
Initially, Dinslage‘s argument confuses a discrimination claim based on disparate
treatment (which he alleged) and a discrimination claim based on disparate impact
(which he did not).4 Since he did not plead a disparate impact claim in the trial court, he
may not rely on that theory in this court. (Johanson Transportation Service v. Rich Pik’ d
Rite, Inc. (1985) 164 Cal.App.3d 583, 588 [on appeal from grant of summary judgment,
―possible theories not fully developed or factually presented to the trial court cannot
create a ‗triable issue‘ on appeal‖].) Moreover, even if his pleadings could be construed
to have raised a disparate impact claim, to support it ― ‗the plaintiff must offer statistical
evidence of a kind and degree sufficient to show that the practice in question has caused
the exclusion of applicants for jobs or promotions because of their membership in a
protected group. . . .‘ [Citation.]‖ (Carter v. CB Richard Ellis, Inc. (2004) 122
Cal.App.4th 1313, 1323-1324.) Dinslage offered no such evidence.
4
―In general, there are two types of illegal discrimination. These are disparate treatment
and disparate impact. Under the disparate treatment theory, . . . , an individual is
discriminated against when the employer ‗treats some people less favorably than others
because of their race, color, religion, sex or national origin.‘ [Citation.] [¶] In disparate
treatment cases, the plaintiff must prove the ultimate fact that the defendant engaged in
intentional discrimination.‖ (Heard v. Lockheed Missiles & Space Co. (1996) 44
Cal.App.4th 1735, 1748.)
11
B. Dinslage Failed to Produce Evidence Permitting an Inference of
Intentional Age Discrimination.
Turning to the claim Dinslage did plead, his opening brief fails to demonstrate the
trial court erred. (See Bains v. Moores, supra, 172 Cal.App.4th at p. 455.) His opening
brief contends ―there is ample evidence of threats by management of discontinuing and/or
terminating [his] career employment, with commentaries traced to [Kern] on a consistent
basis that [Dinslage] was being targeted for elimination at [the Department].‖ To prevail
on this claim, however, it is not enough for Dinslage to show he was threatened with
termination or targeted for elimination. ―[E]mployers have the right to unfairly and
harshly criticize their employees . . . and to threaten to terminate or demote the
employee.‖ (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156,
1171.) Instead, Dinslage was required to show the Department‘s actions were motivated
by his age. (See Guz, supra, 24 Cal.4th at p. 355.) Aside from stating he was 60 years
old at the time of the alleged adverse actions, this portion of his opening brief fails to
explain the connection between his age and the Department‘s failure to rehire him.
In the court below, the Department presented evidence that its reorganization was
due, in significant part, to budgetary reasons and that Dinslage was not rehired because of
poor performance in the interview and opposition to the new focus on inclusive programs
for the disabled. These were all legitimate, nondiscriminatory reasons for its actions.
(See Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 352 [―loss of confidence in an
employee . . . is a legitimate, nondiscriminatory reason for discharge‖]; Villanueva v. City
of Colton (2008) 160 Cal.App.4th 1188, 1195 [―an employer‘s depressed economic
condition ‗can be good cause for discharging [an] employee‘ ‖]; Horn v. Cushman &
Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 815 [employer could terminate
employee in restructuring where employee ― ‗had a different vision going forward‘ ‖]. )
Faced with this showing of nondiscriminatory reasons, it was incumbent upon Dinslage
to come forward with admissible evidence from which the trier of fact could rationally
infer that intentional discrimination had nonetheless occurred. (Guz, supra, 24 Cal.4th at
p. 357 [after employer produced evidence of legitimate, nondiscriminatory reasons for
12
eliminating plaintiff‘s work unit and choosing persons other than plaintiff for vacant
positions, plaintiff ―had the burden to rebut this facially dispositive showing by pointing
to evidence which nonetheless raises a rational inference that intentional discrimination
occurred‖].) He failed to do so.
The sole evidence Dinslage points to in support of his claim that he was targeted
for elimination is his own declaration. But ―plaintiff‘s subjective beliefs in an
employment discrimination case do not create a genuine issue of fact; nor do
uncorroborated and self-serving declarations.‖ (King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 433 (King).) Looking at the cited portion of his declaration,
we find it does nothing more than describe the contents of his union grievance. Even if
we take the declaration on its own terms, it says only that Kern expressed animus to
Dinslage because the latter opposed the elimination of the car show. It goes on to repeat
the SEIU‘s assertion in Dinslage‘s union grievance that he had been discriminated
against. Obviously, this assertion is a mere legal conclusion; it is not evidence.5 (See
Guthrey, supra, 63 Cal.App.4th at p. 1119 [declarations containing only conclusory
assertions of discrimination were based on opinion, not facts].) It cannot serve to show
the existence of a triable issue of material fact.
Dinslage‘s opening brief also claims he was selected by three supervisors for
continued employment. The only record support for this claim is a citation to Dinslage‘s
memorandum of points and authorities in opposition to the motion for summary
judgment. Not only is it inappropriate for Dinslage to incorporate by reference
5
Dinslage also claims citywide layoff procedures were not followed, but nowhere in his
brief does he explain how the Department violated those procedures. Indeed, he does not
even tell us what those procedures are. We may disregard arguments unsupported by
citation to the record and legal authority. (Regents of University of California v. Sheily
(2004) 122 Cal.App.4th 824, 826-827, fn. 1 (Sheily).)
In any event, the Department presented evidence showing it implemented the
layoffs because of budgetary constraints, and it followed proper procedures in doing so.
Dinslage‘s response to the Department‘s separate statement did not dispute the
Department‘s need to cut costs because of the City‘s ongoing budget crisis, and he does
not disagree that an employer‘s straitened economic circumstances can be good cause for
discharge. (Villanueva v. City of Colton, supra, 160 Cal.App.4th at p. 1195.)
13
arguments made below (McGuan v. Endovascular Technologies, Inc. (2010) 182
Cal.App.4th 974, 987), but ―points and authorities state legal arguments, not facts[.]‖
(People v. Duvall (1995) 9 Cal.4th 464, 482.) As such, they also cannot serve to show
the existence of a triable issue of material fact.
Furthermore, in the court below, the Department submitted declarations from the
three supervisors who interviewed Dinslage, and all of them stated he received
unsatisfactory scores in his interview with them and thus was not rated highly enough to
be selected for one of the newly created positions. Dinslage did not dispute receiving
unsatisfactory scores. He simply claimed the issue was disputed because no minimum
score was required. Again, however, the only support for this assertion was a paragraph
of his own declaration in which he stated the Department had violated the ―Rule of
Lists.‖ His declaration in turn referred, without further explanation, to a 16-page exhibit
containing rules for position-based testing. Dinslage‘s assertion that the Department had
violated its rules is a bare legal conclusion and is not evidence. (Guthrey, supra, 63
Cal.App.4th at p. 1119.) It was insufficient to demonstrate the existence of a triable issue
of fact. (King, supra, 152 Cal.App.4th at p. 433.) And in this court, Dinslage ―provide[s]
no analysis in [his] brief as to how the evidence in the record demonstrates the existence
of a triable issue of fact‖ on this point. (Bains v. Moores, supra, 172 Cal.App.4th at
p. 454.) ―[W]e may disregard conclusory arguments that . . . fail to disclose the
reasoning by which the appellant reached the conclusions he wants us to adopt.‖ (City of
Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) We therefore conclude
Dinslage has failed to show the trial court erred in granting summary judgment to the
Department on his age discrimination claim.
III. The Trial Court Properly Granted Summary Judgment on the Retaliation Claim,
Because Dinslage Failed to Make Out a Prima Facie Case.
The trial court found ―Defendants have met their burden to show that Plaintiff did
not engage in protected activity under the FEHA,‖ because the ―evidence shows that
Plaintiff did not speak out against the Defendants for engaging in discriminatory conduct
directed at Defendants‘ employees.‖ The court found Dinslage‘s evidence ―only shows
14
that [he] spoke in public forums regarding his concern that the . . . Department‘s
reorganization would cause layoffs and the potential negative effects the reorganization
would have on members of the public who have disabilities.‖ Thus, the trial court found
Dinslage had failed to establish the first element of his retaliation claim, because he had
not shown he had engaged in protected activity under the FEHA.
Dinslage argues there are disputed issues of fact precluding summary judgment on
his retaliation claim. As we explain, the trial court did not err in granting summary
judgment to the Department, because Dinslage failed to make out a prima facie case of
retaliation.6
A. Retaliation – Elements of a Prima Facie Case
Section 12940, subdivision (h) makes it unlawful ―[f]or any employer . . . to
discharge, expel, or otherwise discriminate against any person because the person has
opposed any practices forbidden under this part . . . .‖ (Italics added.) To make out a
prima facie case of retaliation under the statute, Dinslage had to show (1) he engaged in a
protected activity, (2) the Department subjected him to an adverse employment action,
and (3) a causal link existed between the protected activity and the Department‘s action.
(Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
―For protection under the ‗opposition clause,‘ an employee must have opposed an
employment practice made unlawful by the statute.‖ (1 Chin et al., Cal. Practice Guide,
Employment Litigation (The Rutter Group 2015) § 5:1506, p. 5(II)-8; see Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th 359, 380 (Nealy) [to be protected, employee‘s
activities must ―take[] the form of opposing any practices forbidden by FEHA‖].) The
6
We note this portion of Dinslage‘s opening brief provides almost no citations to the
record. The only record materials cited are Dinslage‘s declaration and portions of his
memorandum of points and authorities in opposition to the Department‘s motion for
summary judgment. For the reasons set forth in the preceding section of this opinion,
these materials are inadequate to demonstrate the existence of a triable issue of fact.
(King, supra, 152 Cal.App.4th at p. 433.) Indeed, given the lack of citation to the record
and supporting authority, we would be fully justified in disregarding the arguments made
in this portion of the opening brief. (See, e.g., Sheily, supra, 122 Cal.App.4th at pp. 826-
827, fn. 1.)
15
question, therefore, is whether the Department took adverse action against Dinslage
―because [he] . . . opposed practices prohibited by the Act . . . .‖ (Cal. Code Regs., tit. 2,
§ 11021(a), italics added.) Of course, ―an employee‘s conduct may constitute protected
activity . . . not only when the employee opposes conduct that ultimately is determined to
be unlawfully discriminatory under the FEHA, but also when the employee opposes
conduct that the employee reasonably and in good faith believes to be discriminatory,
whether or not the challenged conduct is ultimately found to violate the FEHA.‖
(Yanowitz, supra, 36 Cal.4th at p. 1043.) As we have held, ―a mistake of either fact or
law may establish an employee‘s good faith but mistaken belief that he or she is opposing
conduct prohibited by FEHA.‖ (Kelley v. The Conco Companies (2011) 196 Cal.App.4th
191, 209 (Kelly).) In such cases, the question is the reasonableness of the employee‘s
belief that he was opposing a practice prohibited by the FEHA. (See Flait v. North
American Watch Corp. (1992) 3 Cal.App.4th 467, 477.)
The federal courts hold that the reasonableness of the employee‘s belief ―has both
a subjective and an objective component.‖7 (Little v. United Technologies (11th Cir.
1997) 103 F.3d 956, 960 (Little); accord, Hamner v. St. Vincent Hosp. and Health Care
Center (7th Cir. 2000) 224 F.3d 701, 707 [―The plaintiff must not only have a subjective
(sincere, good faith) belief that he opposed an unlawful practice; his belief must also be
objectively reasonable, which means that the [conduct] must involve discrimination that
is prohibited by Title VII.‖]; Moyo v. Gomez (9th Cir. 1994) 40 F.3d 982, 985 [―The
reasonableness of [the plaintiff‘s] belief that an unlawful employment practice occurred
must be assessed according to an objective standard‖].) To meet his burden on this issue,
―[a] plaintiff must not only show that he subjectively (that is, in good faith) believed that
his employer was engaged in unlawful employment practices, but also that his belief was
objectively reasonable in light of the facts and record presented.‖ (Little, supra, 103 F.3d
at p. 960.) The objective reasonableness of an employee‘s belief that his employer has
7
In interpreting the FEHA, California courts frequently look to federal case law
interpreting Title VII of the Civil Rights Act of 1964. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 463 (Miller).)
16
engaged in a prohibited employment practice ―must be measured against existing
substantive law.‖ (Clover v. Total System Services, Inc. (11th Cir. 1999) 176 F.3d 1346,
1351; see Kelly, supra, 196 Cal.App.4th at pp. 209-210 [plaintiff‘s belief objectively
reasonable because at time of conduct complained of, two California Courts of Appeal
had concluded such conduct constituted violation of the FEHA].)
B. None of Dinslage’s Activities Opposed Practices Made Unlawful by the
FEHA.
As we understand Dinslage‘s opening brief, it identifies at most three allegedly
protected activities. First, Dinslage contends the Department retaliated against him for
his overall support and promotion of the rights of the disabled community. Second, he
attributes his failure to be rehired to his opposition to the relocation of Jimmy‘s Old Car
Show. Third, he states he spoke in opposition to what he viewed as the elimination of a
program benefitting the disabled community. We conclude none of these activities are
protected for the purposes of the FEHA‘s antiretaliation provision, because none of them
express opposition to practices one could reasonably believe are unlawful under the
FEHA.
As noted earlier, ―[t]he FEHA protects employees against retaliation . . . for
opposing conduct made unlawful by the act.‖ (Miller, supra, 36 Cal.4th at p. 472, italics
added.) In his opening brief, Dinslage discusses the opinion in Yanowitz at some length,
but he does not explain how it supports his claim that the actions he opposed violated the
FEHA. (Hodjat, supra, 211 Cal.App.4th at p. 10 [―an appellant is required to not only
cite to valid legal authority, but also explain how it applies in his case‖].) He cites no
authority for his apparent claim that general advocacy for the disabled community or
opposition to elimination of allegedly beneficial programs constitute ―opposing conduct
made unlawful by the act.‖ (Miller, supra, 36 Cal.4th at p. 472.) This is fatal to his
claim, because ―case law and FEHA‘s implementing regulations are uniformly premised
on the principle that the nature of activities protected by section 12940, subdivision (h)
demonstrate some degree of opposition to or protest of the employer‘s conduct or
practices based on the employee‘s reasonable belief that the employer‘s action or practice
17
is unlawful.‖ (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th
635, 652-653.)
That Dinslage opposed what he viewed as unwise or even improper actions by the
Department is not enough to make his opposition a protected activity. Again, to be
protected, an employee‘s actions ―must oppose activity the employee reasonably believes
constitutes unlawful discrimination[.]‖ (Yanowitz, supra, 36 Cal.4th at p. 1047, italics
added.) ―A plaintiff's belief on this point is not reasonable simply because he or she
complains of something that appears to be discrimination in some form.‖ (Kelly v.
Howard I. Shapiro & Associates Consulting (2d Cir. 2013) 716 F.3d 10, 15.) Thus,
Dinslage‘s advocacy for the disabled community and opposition to elimination of
programs that might benefit that community do not fall within the definition of protected
activity. Dinslage has not shown the Department‘s actions amounted to discrimination
against disabled citizens, but even if they could be so construed, discrimination by an
employer against members of the general public is not a prohibited employment practice
under the FEHA. (See, e.g., Wimmer v. Suffolk County Police Dept. (2d Cir. 1999) 176
F.3d 125, 136 [police officer could not reasonably have believed he was fired in
retaliation for opposing prohibited employment practice where his complaints concerned
discriminatory practices by fellow police officers against members of general public];
Crowley v. Prince George’s County, Md. (4th Cir. 1989) 890 F.2d 683, 687 [―racial
harassment perpetrated by police officers against members of the community‖ was not
discriminatory employment practice on which retaliation claim could be predicated];
Taneus v. Brookhaven Memorial Hosp. Medical Center (E.D.N.Y. 2000) 99 F.Supp.2d
262, 267 [―Neither the ‗unlawful practice‘ nor the ‗good faith belief‘ requirement is
satisfied where the practice complained of was not directed at employees but, instead,
was directed to individuals who are not in an employment relationship with the
defendant.‖].)
Similarly, the Ninth Circuit has held that blowing the whistle on an employer‘s
allegedly unlawful environmental practices ―is not covered by FEHA because it is not
conduct that gives rise to discrimination on the basis of any of the protected categories
18
under FEHA.‖ (Arn v. News Media Group (9th Cir. 2006) 175 Fed.Appx. 844, 846.)
Indeed, activity with a much closer relationship to an employer‘s actual practices has
been held unprotected by the statute because it did not demonstrate opposition to an
employer‘s unlawful conduct. (See Nealy, supra, 234 Cal.App.4th at p. 381 [under
former version of FEHA, ―protected activity does not include a mere request for
reasonable accommodation‖].) In short, Dinslage could not reasonably have believed his
actions constituted protected activity, because there is no dispute his opposition was not
directed at the Department‘s employment practices. (See Clark County School Dist. v.
Breeden (2001) 532 U.S. 268, 270 [employee could not prevail on claim of retaliation
where ―no one could reasonably believe‖ incident complained of violated federal anti-
discrimination statute]; Weeks v. Harden Mfg. Corp. (11th Cir. 2002) 291 F.3d 1307,
1312 [plaintiffs could not have objectively reasonable belief that requiring mandatory
arbitration for employment discrimination claims was unlawful employment practice];
Miller, supra, 36 Cal.4th at p. 472 [FEHA protects employees from retaliation for
opposing practices made unlawful by the statute].)
Likewise, Dinslage‘s opposition to the relocation of the car show is not a protected
activity under the FEHA. As our high court has explained, ―complaints 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.‖
(Yanowitz, supra, 36 Cal.4th at p. 1047.) Moreover, Dinslage makes no effort to explain
how opposition to the car show‘s relocation might be construed as opposition to a
prohibited employment practice. It is incumbent upon him to set forth the reasoning
behind this argument, and his failure to do so permits us to disregard it. (City of Santa
Maria v. Adam, supra, 211 Cal.App.4th at p. 287.)
In sum, Dinslage has failed to show that he engaged in protected activity under the
FEHA. Because he did not establish he had engaged in such activity, he failed to make
out a prima facie case of retaliation. The trial court therefore did not err in granting
summary judgment on Dinslage‘s retaliation claim.
19
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
20
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
A142365
21
Superior Court of the County of San Francisco, No. CGC11512096, Ernest H. Goldsmith,
Judge.
James Paul Green, for Plaintiff and Appellant.
Ruth M. Bond, Office of the City Attorney, for Defendants and Respondents.
A142365
22