WILLHITE, J.
Plaintiff Linda G. Dunn appeals from the grant of summary judgment on her complaint against her employer, defendant Los Angeles County Department of Mental Health (DMH), and individuals Katty Callender, Marianne Klee, Adele Kelso Loufek (Kelso), and Cathy Warner. Dunn alleged claims for discrimination and retaliation under the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12940, et seq.) as well as a claim for adverse employment consequence in violation of public policy (Lab. Code, §§ 1102.5, 2856). She contends the trial court erred in granting summary judgment because she raised triable issues of material fact as to whether she was subjected to racial discrimination and retaliation for complaining about her discriminatory treatment. She also contends that the trial court erroneously failed to hold a hearing on the summary judgment motion. We affirm.
Dunn began working for DMH in 1988 as a Recreational Therapist I and soon was promoted to Recreational Therapist II. Her duties included providing therapeutic group activities and excursions for the mental health clients served by DMH. In 1996, she transferred to DMH's South Bay Mental Health Center (South Bay facility) to head the Rehabilitation Team there. In that role, she developed and ran a community living program for the clients receiving mental health services from the South Bay facility. By 1999, she was no longer managing the Rehabilitation Team, but instead served as the client housing liaison while continuing to conduct the community living program. Throughout her tenure, Dunn received several awards and recognitions for her service at DMH, including an award for being the "Most Punctual" employee at the South Bay facility.
On January 12, 2006, a mental health client threatened Dunn with physical harm in the parking lot outside the South Bay facility. Specifically, the client twice threatened to "f___ [Dunn] up" because Dunn supposedly had not obtained housing for the client. Dunn reported the threat to Katty Callender, who was in charge of the South Bay facility, as well as to her supervisor and several co-workers, the Health and Safety office, and the Office of Security Management.
On February 6, 2006, Dunn filed a police report about the client's threat. In March 2006, Dunn requested and received a Temporary Restraining Order against the threatening client. In April 2006, the client was transferred to another DMH facility.
On June 14, 2006, Dunn made an internal complaint against Callender, the manager of the South Bay facility, contending that Callender had discriminated against Dunn in the ways in which she responded to Dunn's safety concerns. On June 26, 2006, Dunn filed a Charge of Discrimination against DMH with both the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC). The DFEH issued a "Notice of Case Closure" and a "Right to Sue" notice on August 14, 2006.
On August 14, 2007, Dunn filed a complaint against DMH, as well as individual defendants including Callender, alleging causes of action for (1) age and race discrimination (Gov. Code, § 12940, subd. (a)), (2) retaliation for protected activity (Gov. Code, § 12940, subd. (h)), and (3) adverse employment consequence in violation of public policy (Lab. Code, §§ 1102.5, 2856).
Her complaint alleged that (1) DMH failed to provide her with a safe working environment after one of her mental health clients threatened her with physical harm; (2) her schedule was changed to a five-day, 40-hour work week instead of the four day, 40-hour schedule she had previously enjoyed, and Dunn's request for a return to her four-day work schedule was denied because she was treated as a "new hire"; (3) Dunn received negative performance reviews; and (4) DMH placed a male, mental health client in Dunn's office.
On appeal, Dunn challenges only the summary adjudication of her claim for race discrimination and for retaliation. Accordingly, below we discuss only the evidence pertaining to the racial discrimination and retaliation claims.
DMH moved for summary judgment, and produced the following evidence.
In a declaration, Callender stated that after Dunn reported the threat from the client, Callender gave instructions that Dunn need not have any further contact with the threatening client and that someone else would assist the client with her housing needs. The case manager for the client and the front-desk staff were required to notify Dunn whenever the client had an appointment and if and when the client appeared without an appointment. Dunn was also offered services from the Employee Assistance Program. In addition, as further discussed below, Dunn's work schedule was changed so that security would always be available to escort her to and from her car and would generally be present during the entirety of her workday.
According to Callender's declaration and the declaration of DMH District Chief Cathy Warner, even when a mental health client has threatened a DMH employee, DMH strives to avoid transferring the client from one facility to another because such disruptions of a client's services can be upsetting and cause setbacks in the client's progress. Only when there are no alternatives to ensure an employee's safety will a threatening client be transferred to another facility. In Dunn's particular case, Callender believed that DMH had taken appropriate steps to protect Dunn's safety, and thus determined that it was not necessary to transfer the threatening client's case.
The client never threatened Dunn again. When the client showed up without an appointment on one occasion, South Bay staff attempted to notify Dunn that the client was on the premises, but Dunn was not in her office at the time. When Dunn voiced her concerns, Assistant Health and Safety Officer Sally Ng attempted to reassure Dunn that the procedures to protect her from the client were in place, and that the security and staff were aware that they were to contact her in the client arrived without an appointment.
After Dunn obtained a restraining order against the client, DMH transferred the client to another facility so that the client would not violate the restraining order by appearing for treatment.
Before the client threat, Dunn worked a "4/40 schedule," from 7:30 a.m. to 6:00 p.m. Monday through Thursday, with Fridays off. In response to Dunn's report of the threat, DMH changed her schedule to a regular "5/40 schedule," 8:00 a.m. to 4:30 p.m. Monday through Friday, because the South Bay facility only had security present from 8:00 a.m. to 4:30 p.m. The new 5/40 schedule ensured that security would be able to escort Dunn to and from her car each day, and would be present while Dunn was at work. In addition, Dunn would always leave work during daylight hours. The new schedule did not result in a loss of pay or benefits to Dunn or a change in duties or title.
After the client was transferred to another facility, Dunn switched back to a 4/40 schedule without permission. DMH employees are not entitled to a modified schedule, and, absent the exercise of discretion by management, must work five days a week. In Dunn's case, she did not work another job on Fridays, but instead liked having Fridays off to relax. Callender determined that Dunn should remain on the 5/40 schedule so that security could continue to escort her to and from her car. Despite the fact that the client had been transferred to another facility, Callender felt it was conceivable that she could still show up at the South Bay facility. In addition, Callender planned to eliminate all 4/40 schedules at South Bay, or as many such schedules as possible, because she believed the South Bay facility would function better without so many employees on the four-day schedule. Accordingly, Callender instructed Dunn's direct supervisor Scott Telford to notify Dunn that she had to resume the 5/40 schedule or face disciplinary action. After Callender left her position at the South Bay facility, however, Dunn's 4/40 schedule was restored.
The Los Angeles County Civil Service Rules define "competent" work performance as "consistently up to or somewhat above the standards of performance required for the position. This is the performance which is expected of a trained and qualified employee." According to Shelli Weekes, DMH Administrative Services Manager, a "competent" evaluation is considered a positive one. Dunn also testified that a "competent" rating means the employee is meeting expectations in his or her job performance.
After Dunn filed her internal complaint and a Charge of Discrimination with the DFEH and the EEOC in June 2006, Dunn received a performance evaluation for the March 2005 through February 2006 period that rated her as "Competent" overall. Dunn's next performance evaluation, for the period March 2006 to February 2007, similarly rated her as "Competent" overall. Marianne Klee, who directly supervised Dunn, drafted the 2006-2007 evaluation, but she did not sign it as the "rater" because she had not yet officially been promoted to supervisor.
After Dunn received the 2006-2007 evaluation, she notified management that she had problems with it. Following a meeting with management, in May 2007 Dunn provided a draft that included her proposed changes, but she never made herself available over the next few months to review the proposed changes with management. DMH management then incorporated some of Dunn's proposed changes in a revised evaluation that, in part, improved Dunn's rating in the "Quality" section from "Competent" to "Very Good." By then the evaluation was past due, and Kelso had left the South Bay facility. Jacquelyn Wilcoxen, who became the DMH District Chief at the South Bay facility in July 2007, asked Donald Wells, the new Clinical Program Head at the South Bay facility, to sign the revised evaluation as the "rater" in the place of Kelso. Wilcoxen, who had not met Dunn, then signed as the "reviewer." Both Wilcoxen and Wells dated the revised evaluation March 15, 2007, even though they actually signed it in the late summer of 2007. In her declaration, Wilcoxen explained that she backdated the evaluation and instructed Wells to do so as well because DMH was under pressure to get all of its employees' evaluations in on time. The timing of the revised evaluation and the date given to the revised evaluation did not affect the terms of Dunn's employment.
On Dunn's next performance evaluation for March 2007 to February 2008, Dunn again was rated "Competent" overall.
In the years 2001-2003, as in the years 2005-2008, Dunn had been rated "Competent" overall.
Gary Gougis, a former DMH client who had been honored as the 2006 Volunteer of the Year, was hired as a DMH employee and assigned to share space in Dunn's office until he was moved to another space in November 2007. Dunn testified that during the four to five months they shared an office, she never felt threatened by Gougis. Rather, she was bothered by the fact that he repeatedly came in and out of the office, banged the door and kept it open when it was noisy outside, and brought clients into the office when Dunn was trying to do her work. According to Kelso and Weekes, DMH employees did not have the right to dictate the seating arrangements in their offices so as to avoid being near someone they find objectionable. Rather, DMH management has the right to arrange office desk assignments as it sees fit, in the best interests of the DMH.
Dunn admitted in her deposition that no one at DMH ever made a negative racial remark about her or another person's race, except that Kelso had once commented that Kelso had been hired because she had a "big butt like black people." After Dunn made her internal complaint on June 14, 2006, and filed DFEH and EEOC charges of discrimination on June 26, 2006, Dunn never heard any DMH manager or supervisor make negative comments about the fact that she had alleged discrimination by DMH. At the time Wilcoxen backdated the revised performance evaluation for the 2006-2007 period and directed Wells to backdate it as well, she was not aware that Dunn had complained of discrimination.
Dunn submitted evidence in support of her claim for racial discrimination and retaliation claims.
According to Dunn, when she met with Callender on January 17, 2006 about the client's threat, Callender told her that the client would continue to be seen at the South Bay facility, and when the threatening client came to the clinic, Dunn should go outside and wait in the parking lot. Callender stated that threats from mental health clients were to be expected, that DMH was not there to be Dunn's bodyguard, and that Dunn had to take care of herself. Dunn testified that Callender appeared angry and displeased during the meeting; Dunn believed Callender was upset because she thought Dunn had already gone to the police about the threatening incident. According to Dunn, Callender told her, "You reported this to the police. What we're going to do is, we are going to change your schedule."
Callender sent Dunn a letter on January 26, 2006, regarding their January 17, 2006 meeting and DMH's response to Dunn's concerns about her safety. The letter detailed steps DMH agreed to take to safeguard Dunn: (1) Dunn would cease to have contact with the client; (2) Dunn's work schedule would be altered to coincide with the hours security was present; (3) Dunn would be notified when the client had an appointment scheduled; (4) the front office staff would notify Dunn if the client appeared without an appointment; and (5) information on the Employee Assistance Program would be provided to Dunn.
According to Dunn, this letter contained misrepresentations concerning her January 17, 2006 meeting with Callender. In that meeting, Dunn testified, Callender did not state that someone else would take over the client's case from Dunn, but instead trivialized the threatening incident. According to Dunn, Callender had previously reacted differently when a non-Black employee, Nancy Metcalf, reported a threat from a client. When Metcalf requested that the client be reassigned to another case manager, Callender granted her request. It should be noted that the record does not support Dunn's contention that the client who threatened Dunn was not removed from her caseload until after she obtained a restraining order in March 2006. Dunn submits no evidence that she was required to work on the client's case after she complained about the threat.
Dunn further contends that DMH did not follow the safety plan set forth in the January 26, 2006 letter. Dunn was notified in advance on only one of the approximately four occasions on which the client appeared at the South Bay facility after the incident with Dunn. Front desk personnel were only verbally advised of the client's name and description and were never given a photograph to assist them in identifying the client when she visited the South Bay facility, despite a new "workplace violence/threat management" policy, effective February 24, 2006, that stated that "[m]anagers/supervisors shall take necessary measures to ensure employees and other appropriate personnel are aware of the threat and the identity of the threatening party, including picture ID if available, and are advised of proper security measures, including prioritized notification procedures if the identified party appears at the facility."
Dunn herself pointed out the client to the security officers on one occasion, but Dunn still saw the client in the building two or three more times without receiving a warning. After one of these occasions, Dunn complained to Sally Ng, the Assistant Health and Safety Officer, that the notification procedure was not being followed. Ng responded that Dunn was safe. When Dunn advised manager Cathy McConnell that she was continuing to see the client unexpectedly, McConnell advised her to stay away from the client as much as possible, and said she would raise the issue at the weekly administrative management meeting. Dunn contends the measures taken were inadequate to address her safety concerns.
Dunn believed that once the client was transferred to another facility, the threat from the client was alleviated and she could return to her 4/40 schedule. Even though it was possible that the client could still accost her in the parking lot before or after work, she believed it was unlikely the client would show up at the South Bay facility because the client's new facility was 15-20 miles away. Her supervisor Klee likewise saw no reason that Dunn should not be permitted to return to her 4/40 schedule, and asked Callender if Dunn could return to it, but Callender refused, even though some 15 other employees at Dunn's level were permitted to work a 4/40 schedule.
When Dunn returned to her 4/40 schedule without authorization, she was disciplined with a written warning for the first time in her career. In addition, approximately three to five weeks after Dunn had returned to the 4/40 schedule, Klee approached Dunn and asked her to re-do her timecard to reflect her approved 5/40 schedule rather than the unauthorized 4/40 schedule. Klee repeated to Dunn Callender's statement that Dunn was to be treated as a new hire, despite Dunn's long tenure with DMH. Dunn testified that new hires did not have the option of working a 4/40 schedule. She further testified that the only way she was treated as a new hire was that she was not allowed to return to her 4/40 schedule.
Dunn contends that DMH gave her negative, false performance evaluations after she complained about her safety and about DMH's discriminatory response to her complaints. She notes that she received "Very Good" overall ratings in the two review periods March 2003 through February 2004 and March 2004 through February 2005, the two years immediately preceding her complaints to DMH. Dunn purports to dispute that she received an overall "Competent" rating in each year after 2005, but her Separate Statement does not cite to evidence that presents a factual dispute as to this issue. She does not dispute the authenticity of the 2005-2006 performance evaluation proffered by DMH that shows an overall "Competent" rating and she herself submitted the 2006-2007 and 2007-2008 evaluations that show DMH rated her as "Competent" overall. She also concedes that she received this same "Competent" overall rating in some review periods that pre-dated her complaints made in 2006. Dunn does not dispute that a "Competent" evaluation is a positive one.
However, Dunn contends, unlike the overall "Competent" evaluations she received before her complaints to DMH, the evaluations she received after 2005 included punitive comments. Although Dunn generally characterizes her performance evaluations after 2005 as "inaccurate" and "negative", she does little to identify how this is so. She points out that in the 2006-2007 evaluation, the Quantity section states that "Ms. Dunn's continued goal will be to communicate directly with all staff members who have referred clients for housing assistance," which, according to Dunn, implies that she had fallen short in this area. She also relies on the fact that the Work Habits section of that same evaluation notes that "[w]hen [Dunn] is reminded that she is expected to attend and participate [in clinic meetings], she becomes defensive. For example, when she is reminded that she is to attend the Wellness team meetings, she states that she does not see what her role in it is." She also notes that she was given an "Improvement Needed" rating in both the Work Habits and Personal Relations sections. However, Dunn does not identify any evidence that might call into question the accuracy of these statements or ratings in individual sections. Dunn also fails to allege any consequences resulting from the inclusion of those remarks in her evaluations.
Rather than presenting evidence to dispute the accuracy or fairness of the evaluations, Dunn focuses on numerous alleged procedural flaws with respect to her evaluations, particularly with respect to her performance evaluation for March 2006 through February 2007. First, Dunn states that the 2006-2007 evaluation violated DMH policy because, although Dunn received "Improvement needed" ratings in several areas, DMH did not provide a Plan for Improvement in conjunction with these ratings and did not do a follow-up evaluation within six months. In addition, her reviewers did not provide any written documentation to support the ratings. However, DMH policy only requires that a Plan for Improvement and six-month follow-up evaluation be provided to an employee when DMH has given the employee an overall "Improvement needed" rating. Further, DMH policy specifically provides that reviewers need not attach supporting documentation to an evaluation, as long as the Comments section substantiates the ratings.
Dunn places great emphasis on the fact that Wilcoxen backdated Dunn's revised 2006-2007 evaluation March 15, 2007
Further, although DMH policy provides that the rater normally should be the employee's immediate supervisor, Wells had not supervised Dunn in the evaluation period, having only been transferred to the South Bay facility in July 2007. In his deposition he explained that he nevertheless signed the revised evaluation because Kelso, who was the rater on Dunn's original evaluation from that time period, was no longer at the facility. In addition, although DMH policy states that the rater is to meet with the employee to review the evaluation and discuss the employee's strengths and weaknesses, Wells did not recall ever meeting with Dunn to discuss her revised evaluation.
Dunn also alleges that her performance evaluation for the March 2007-February 2008 time period was flawed. Scott Telford signed that evaluation as the rater, and Wells signed as the reviewer. In February 2007, Dunn had been transferred from Klee's to Telford's team, at Dunn's request, and Telford became her direct supervisor. Telford never discussed Dunn's review with her; he testified that it was his understanding that Wells had met with her. While Dunn's 2007-2008 evaluation reflects Telford's own conclusions and the views of other colleagues he consulted about Dunn's work performance, he referred to and incorporated some of the content of Dunn's prior evaluation in drafting the evaluation. Dunn thus contends that her 2007-2008 performance evaluation, in which she received an overall rating of "Competent," does not truly reflect her performance in that particular time period. However, she does not identify the specific ways in which the evaluation misrepresented her performance, or, more importantly, how her performance was rated less than competent.
Although Dunn's complaint alleged that DMH retaliated against her "with the placement of a male, mental health client into [her] physical office", Dunn abandoned this theory below. Instead, in opposing DMH's motion for summary judgment, she alleged that DMH failed to assist her in creating a safe work environment when it refused to permit her to keep her office door closed. Despite the fact that she wanted the door to remain closed for safety reasons, her request was denied because her office mate Gougis felt uncomfortable having the door closed.
Dunn's opposition relies on her deposition testimony that on one occasion in 2007, Klee approached her in the copy room to try to schedule a meeting with her. Dunn was trying to return to an on-going meeting with a client, but Klee was insistent about setting up a time for a meeting. Dunn testified: "She was saying, `When?' So we danced this way and danced that way and that way. And I said, `Don't block my personal space. Don't do that.'" Klee then let Dunn out of the copy room, but remained in her personal space, walking fast behind her and almost bumping into her.
DMH's motion for summary judgment was set for a hearing on April 10, 2009. As of that date, Dunn had not filed an opposition to the motion. However, at the hearing, Dunn's counsel advised the trial court that he had filed an opposition earlier that day. The court deemed the matter submitted and said it would examine the opposition and then determine whether it would permit or require DMH to file a reply brief.
The court subsequently held a telephonic hearing with both parties, and indicated that, having reviewed Dunn's opposition, the court intended to grant summary judgment in DMH's favor. In granting the motion for summary judgment, the court determined that Dunn had not satisfied her burden on either her discrimination or her retaliation claim to show that she had suffered an "adverse employment action." For instance, the court determined that the performance evaluations Dunn received could not be considered adverse employment actions because a "competent" rating is a positive evaluation. The court did not address whether the change to Dunn's schedule, or DMH's allegedly inadequate response to her safety concerns, constituted adverse employment actions.
Alternatively, the court held that even if Dunn had suffered an adverse employment action, DMH had presented legitimate reasons for taking the actions it did, and Dunn had failed to submit evidence to suggest that these reasons were pretextual. The court found Dunn failed to present any evidence that DMH was motivated by race in refusing to return Dunn to the 4/40 schedule after the client was transferred. While Dunn contended that a non-Black employee, Nancy Metcalf, had been treated differently when she was threatened by a client, the evidence Dunn presented actually showed that the two were treated similarly. Dunn also failed to present any evidence that the back-dating of her 2006-2007 performance evaluation was motivated by discriminatory animus.
This timely appeal followed.
"We review the grant or denial of summary judgment de novo. [Citations.] We apply the same analysis as the trial court. When the moving party is a defendant, we first identify the issues framed by the pleadings; next, we determine whether the defendant has shown the plaintiff has not established, and cannot reasonably expect to establish, a prima facie case; if so, we determine whether the plaintiff party has demonstrated the existence of a triable, material issue of fact as to the cause or causes of action at issue. [Citations.] Summary judgment is appropriate when no triable issue of material fact exists and the defendant is entitled to judgment as a matter of law. [Citations.]" (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1662.)
Government Code section 12940 prohibits employers from discriminating against an employee on the basis of race "in compensation or in [the] terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) To make out a prima facie case of discrimination, "[g]enerally, the plaintiff must 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 v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
Dunn contends that there is a triable issue whether she was subjected to an adverse employment action. Dunn identifies the following, multiple actions: (1) inadequate response by DMH to a mental health client's threat of violence against Dunn; (2) reduced status as a "new hire" resulting in the loss of Dunn's 4/40 work schedule; (3) multiple false, fraudulent and negative performance evaluations (for the 2005-2006, 2006-2007, and 2007-2008 time periods); and (4) a physical assault by Klee. As further discussed below, whether considered individually or collectively, these alleged actions do not amount to adverse employment action.
"[T]o be actionable, an employer's adverse conduct must materially affect the terms and conditions of employment." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051, fn. 9 (Yanowitz).) "[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Id. at p. 1052.) "[T]he phrase `terms, conditions, or privileges' of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide." (Id. at p. 1054.) The protections against discrimination in the workplace therefore are "not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee." (Id. at p. 1052.) Rather, FEHA "protects an employee against unlawful discrimination with respect [to] the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." (Id. at pp. 1053-1054.) "[T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries." (Id. at p. 1055.) "[I]t is appropriate to consider plaintiff's allegations collectively under a totality-of-the circumstances approach." (Id. at p. 1052, fn. 11.)
"Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [section] 12940(a)." (Id. at pp. 1054-1055.) Accordingly, "`[a] change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.] `"[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action." [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." [Citation.]' [Citation.] The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 (McRae).)
Applying the above standards, we conclude that Dunn did not suffer an adverse employment action.
Dunn alleges that after she reported that a mental health client threatened her in the parking lot of the South Bay facility in January 2006, DMH's response was inadequate. She primarily contends that Callender did not take her concerns seriously enough, making it Dunn's obligation to avoid the threatening client rather than immediately transferring the client to another facility. She also contends that DMH failed to properly implement the alternative safety procedures it established, and unreasonably refused her request to be able to keep her door closed for safety reasons.
But Dunn's complaints fail to demonstrate that in the three months before the client ultimately was transferred to another facility in April 2006, DMH actions materially impaired her ability to perform her job. Dunn does not dispute that after she reported the threat, DMH took other measures, short of transferring the client to another facility, to protect her safety. First and foremost, Dunn was not required to have any contact with the client after the threat was made. In addition to removing the client from Dunn's caseload, DMH changed Dunn's work schedule to coincide with the hours that security was present at the facility. Because of this new schedule, security was available to escort her to and from her car, and was generally present during her work hours. DMH also set up notification procedures designed to give Dunn advance warning that the client would at the South Bay facility. While Dunn contends she was actually only notified once out of the four times the client appeared at the facility, she does not allege any confrontations with the client on these occasions. Nor has Dunn established that DMH violated its owns policies or acted unreasonably by merely giving security and the front staff the client's name and description, as opposed to posting a photograph of the client in the reception area. Similarly, she has not shown that DMH's refusal to permit her to keep her office door closed materially affected her safety or ability to perform her work duties. DMH's response to Dunn's safety concerns was not so inadequate that it reasonably would have substantially affected Dunn's employment.
Dunn also contends that being relegated to "new hire" status, such that she was denied the opportunity to work a 4/40 schedule, constituted an adverse action. Dunn admitted in her deposition that the only way she was treated as a "new hire" was that she was not allowed to return to her 4/40 schedule, and otherwise nothing about her job changed. She does not present evidence to suggest that she was somehow entitled to work a 4/40 schedule; rather, absent the exercise of discretion by management, DMH employees are obligated to work a 5/40 schedule.
A change to a non-preferred schedule generally does not constitute an adverse employment action. (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358.) Requiring Dunn to work her 40 hours in five days instead of four instead falls into the category of conditions of employment that are "`merely contrary to the employee's interests or not to the employee's liking.'" (McRae, supra, 142 Cal.App.4th at p. 386.)
Dunn further argues that she received negative performance evaluations that amount to adverse employment actions. However, the evaluations about which Dunn complains — for the 2005-2006, 2006-2007, and 2007-2008 time periods — all ranked Dunn as "Competent" overall. Dunn herself testified that a "Competent" evaluation means an employee's performance is meeting expectations, and she concedes that a "Competent" evaluation is a positive, not a negative, evaluation; indeed, for the purpose of the DMH performance evaluations, "Competent" is defined as work performance that is consistently at or above the standards required, and is the performance expected of trained and qualified employees. Because the evaluations Dunn received were positive overall, we cannot find that they constituted adverse employment actions.
Even if we ignored the overall "Competent" rating she received, and instead considered the comments and ratings in each individual area of the evaluations, we would not conclude that there is a triable issue whether Dunn suffered an adverse employment action. "`[A] mere oral or written criticism of an employee . . . does not meet the definition of an adverse employment action under [the] FEHA.' [Citation.] A statutory claim for retaliation may be predicated on an unfavorable evaluation only where the `employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment. . . .' [Citation.]" (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 646; see Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457.) Dunn points to no evidence that DMH used the allegedly critical language in the evaluations against her for any purpose. She does not suggest that she was denied a raise or step increase, or otherwise kept from advancing at the South Bay facility. Notably, in 2007, DMH granted Dunn's request to transfer to another team at the South Bay facility, despite the allegedly negative criticisms in her performance evaluations following her January 2006 report about the threat and her June 2006 complaints about the allegedly discriminatory handling of her report.
The only evidence Dunn presented that Klee physically assaulted her was her testimony that on one occasion Klee temporarily blocked her from leaving the copy room, then remained in her personal space and almost bumped into her when walking closely behind her. Dunn cites to no authority for the proposition that the described incident constitutes a physical assault, and we reject the argument that Klee's alleged conduct amounted to an adverse employment action.
Even considering the above four alleged instances collectively as we must, (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. 11), we cannot conclude that DMH's conduct creates a triable issue whether it was "reasonably likely to adversely and materially affect [Dunn's] job performance or opportunity for advancement in . . . her career." (Id. at p. 1054.) Because Dunn has not established a prima facie of discrimination, summary judgment was properly granted on her claim for racial discrimination.
Even if Dunn suffered an adverse employment action, summary judgment was appropriately granted because, as discussed below, DMH satisfied its burden of producing evidence that it took the actions about which Dunn complains for legitimate business reasons, and Dunn failed to rebut DMH's presentation of this evidence. Once a plaintiff has made out a prima facie showing, the burden shifts to the employer to rebut the presumption of discrimination by producing admissible evidence suggesting that the employer's action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the employer sustains this burden, the plaintiff must then demonstrate that the employer's proffered reasons are pretexts for discrimination or must offer other evidence of a discriminatory intent. (Id. at p. 356.) "In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias." (Ibid.)
However, "[i]n responding to the employer's showing of a legitimate reason for the complained-of action, the plaintiff cannot `"simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee `"must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' [citation], and hence infer `that the employer did not act for the [. . . asserted] non-discriminatory reasons.' [Citations.]" [Citations.]' [Citation.]" [Citation.]' [Citation.]" (McRae, supra, 142 Cal.App.4th at pp. 388-389.)
"Proof that the employer's proffered reasons are unworthy of credence may `considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361.)
While Dunn's opening brief includes a lengthy fact section that presumably is intended to demonstrate that DMH's stated reasons for its actions are a cover-up for discriminatory bias, she fails to make any cogent argument explaining how DMH's stated reasons are pretextual. She also fails to cite to the record in support of her arguments. (See Cal. Rules of Court, rule 8.204(a)(1)(C) ["any reference to a matter in the record [must be supported by] a citation to the volume and page number of the record where the matter appears"].) Construing Dunn's arguments about pretext as best we can, we conclude that Dunn has not submitted sufficient evidence from which a trier of fact could find that DMH's articulated reasons for its actions were pretextual.
DMH presented evidence that the threatening client was not immediately transferred because DMH preferred not to disrupt clients' mental health services unless there was no alternative to ensure employees' safety. Callender concluded that adequate steps had been taken to protect Dunn's safety, and thus transferring the client was not necessary.
In response, Dunn contends that DMH took more serious action in response to similar threats that another client made against a white employee, Nancy Metcalf, and thus Dunn was treated less favorably because she is African-American. However, Dunn herself testified that in Metcalf's case, DMH's response to the threat was simply to transfer that client to another case worker at the South Bay facility, not to a different facility. Thus, DMH took the same action in Metcalf's case as it did in Dunn's case. Dunn otherwise fails to point to evidence suggesting that Callender was dishonest in explaining her decisions on the security measures implemented to protect Dunn. Although Dunn suggests that Callender appeared displeased with her and trivialized her safety concerns during their January 17, 2006 meeting, and then misrepresented what had occurred in her January 26, 2006 letter, "the evidence as a whole is insufficient to permit a rational inference that [DMH's] actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361.)
DMH presented evidence that Callender refused to return Dunn to a 4/40 schedule after the client was transferred to another facility because (1) Callender determined that the threatening patient could still show up at the South Bay facility to accost Dunn, and thus Dunn should therefore continue to work only during hours when security was present; and (2) Callender planned to eliminate all 4/40 schedules in any event because she believed the South Bay facility would operate better that way.
In response, Dunn relies on evidence that her direct supervisor Klee saw no rational reason Dunn should not return to her 4/40 schedule once the threatening client had been transferred to another facility. However, showing that Callender's refusal to return her to the 4/40 schedule was wrong or irrational does not satisfy Dunn's burden to demonstrate that Callender and DMH in fact acted the way they did for discriminatory reasons. (McRae, supra, 42 Cal.App.4th at p. 389.) Similarly, demonstrating that fifteen other employees were still permitted to work the 4/40 schedule does not suggest weaknesses or inconsistencies in Callender's proffered reasons for refusing to let Dunn do so. Dunn has not satisfied her burden to demonstrate that Callender's proffered justification was mere pretext.
While Dunn alleges a number of procedural deficiencies in her 2005-2008 evaluations and suggests a discriminatory motive is behind them, the evidence Dunn herself relies upon demonstrates that some of these allegations are factually inaccurate. For instance, contrary to Dunn's contention, DMH was not required to provide a Plan of Improvement or six-month follow up review simply because Dunn was given a "Improvement Needed" ranking in several sections of the 2006-2007 review; DMH policy requires that such measures be taken only when an overall rating of "Improvement Needed" is assigned.
Dunn correctly alleges, however, that DMH supervisors backdated Dunn's revised 2006-2007 evaluation to make it appear that it had been signed on March 15, 2007, when in fact it was not signed until late summer 2007. DMH presents evidence explaining that Dunn's new supervisors Wilcoxen and Wells backdated that evaluation because they were under general pressure to get all employee evaluations in on time, and that the backdating of the evaluation had no effect on Dunn's employment.
While Dunn cites to evidence that Wilcoxen and Wells knew it was wrong to backdate the 2006-2007 evaluation but did so because they had been instructed to do so, this evidence does not rationally lead to an inference that they or anyone else at DMH harbored racial animus against Dunn. The original evaluation signed March 5, 2007 would have been timely, but Dunn complained about it and suggested new language for a revised evaluation, some of which was included in the final revised evaluation backdated to March 15, 2007. The backdating of the revised evaluation had no effect on the evaluation's content, which only cast Dunn in a more favorable light than the original evaluation had. As discussed above, the 2006-2007 review is positive overall, and Dunn fails to present evidence that the individual more negative comments and ratings are inaccurate or unfair. Further, Dunn fails to dispute DMH's evidence that Dunn was largely responsible for the delay in finalizing the revised evaluation because she was continuously unavailable to meet with management about Dunn's proposed changes. We reject Dunn's implicit suggestion that none of DMH's explanations for its actions can be credited because of the improper backdating the evaluations.
Similarly, the fact that supervisors who had never worked with Dunn signed the revised 2006-2007 evaluation also does not constitute evidence that DMH's explanations are pretextual. The supervisors who signed the original 2006-2007 review had left the South Bay facility, leaving an unsigned evaluation that had been revised to include Dunn's own comments. Dunn has not demonstrated that it was unreasonable or violative of DMH policy for them to sign the revised evaluation, or to do so without meeting with Dunn, particularly when Dull had already participated in a meeting about the original evaluation for that time period.
Dunn likewise fails to present any evidence to call into question DMH's motive behind Dunn's 2005-2006 or 2007-2008 performance evaluations. For instance, while she relies on the fact that Telford, the rater on her 2007-2008 evaluation, did not discuss the evaluation with Dunn, Telford testified that Wells had already attempted to discuss it with her. And while she contends that this evaluation improperly lifted language from the previous year's evaluation, the record does not support her contention. Most importantly, she fails to identify any specific ways in which this evaluation, in which she was rated as "Competent" overall, misrepresented her performance.
Because Dunn's complaint did not allege that Dunn had been physically assaulted, DMH's summary judgment papers did not address this allegation raised for the first time in Dunn's opposition. However, the fact that Klee temporarily blocked Dunn from leaving the copy room and then stayed in Dunn's personal space as Dunn walked down the hall does not rationally lead to the conclusion that Klee or anyone else at DMH had a discriminatory intent.
Besides failing to identify circumstantial evidence that DMH's reasons for the challenged actions were pretextual, Dunn cites to no direct evidence that any of her supervisors or managers harbored discriminatory animus. She concedes that neither Klee nor Warner ever made a negative racial remark about her and she fails to point to any evidence that Callender ever made a negative racial comment about her. Although Kelso remarked to Dunn that Kelso was hired because she had a "big butt like black people," such "`stray'" remarks do not establish discrimination. (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801.)
Because Dunn failed to submit substantial evidence from which a trier of fact could have found DMH's stated reasons for its actions were a pretextual smokescreen to hide DMH's discriminatory motives, the trial court correctly granted DMH's motion for summary judgment on Dunn's discrimination claim.
Government Code section 12940 also prohibits an employer from retaliating against an employee for complaining that he or is the victim of employment discrimination. (Gov. Code, § 12940, subd. (h).) "[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz, supra, 36 Cal.4th at p. 1042.) Dunn contends that she engaged in protected activity by lodging formal and informal complaints of racial discrimination, and that DMH retaliated against her for doing so.
The same standard for "adverse employment activity" applies to a retaliation claim in Government Code section 12940, subdivision (h) as to a discrimination claim under Government Code section 12940, subdivision (a). (Yanowitz, supra, 36 Cal.4th at pp. 1050-1051.) Accordingly, our earlier holding that Dunn has failed to demonstrate that she suffered an adverse employment action applies equally here and compels the conclusion that Dunn cannot establish a prima facie case of retaliation any more than she can establish a discrimination claim. The trial court thus correctly granted summary judgment on the retaliation claim.
Even if Dunn could show an adverse employment action, as with her discrimination claim, she was required to offer evidence that DMH's articulated reasons for its conduct are unworthy of credence or that DMH acted with discriminatory animus. (Guz, supra, 24 Cal.4th at p. 354.) She failed to do so, and thus summary judgment was also proper on this ground.
In the introduction to her opening brief, Dunn alleges that she was denied the opportunity to present oral argument at the hearing on the motion for summary judgment. However, Dunn did not object to the procedure below, and does not address this issue in the argument section of her brief. Accordingly, she has forfeited the issue. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived."]; Cal. Rules of Court, rule 8.204(a)(1)(B).))
The judgment is affirmed. Respondent shall recover its costs and attorneys fees on appeal.
We concur:
EPSTEIN, P. J.
MANELLA, J.
