The opinion
Filed 12/30/24 Martinez v. City of El Segundo CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SCOTT MARTINEZ, B331206
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. 21STCV10637)
CITY OF EL SEGUNDO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Christopher K. Lui, Judge. Reversed.
Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly,
and Julian B. Bellenghi for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Jennifer M. Rosner, and Marek
Pienkos for Defendants and Respondents.
_________________________________
Plaintiff and appellant Scott Martinez sued defendants and
respondents City of El Segundo (the City) and the El Segundo
Fire Department (Fire Department) Fire Chief Chris Donovan,
alleging Martinez suffered discrimination, harassment, and
retaliation during his employment as a captain with the Fire
Department. Martinez alleged causes of action under the
California Fair Employment and Housing Act (Gov. Code,1
§ 12900 et. seq.) (FEHA) and Labor Code section 1102.5, because
respondents did not promote Martinez to battalion chief.
Martinez also claims that he was harassed and retaliated against
for complaining about the misuse of consent decree funds and the
alleged FEHA violations.
The trial court sustained respondents’ demurrer and
granted summary judgment in their favor, finding they had
legitimate, nondiscriminatory reasons for not promoting
Martinez. It also found Martinez failed to meet his burden to
show these reasons were pretextual. In addition, the trial court
found Martinez failed to offer evidence that his complaints
regarding the consent decree funds and the alleged FEHA
violations were a contributing factor in motivating respondents’
actions.
For the reasons stated below, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
I. Martinez’s complaint
Martinez’s complaint alleged four causes of action: (1) age
discrimination in violation of section 12940, subdivision (a);
(2) age harassment in violation of section 12940,
1 All further undesignated statutory references are to the
Government Code.
2
subdivision (j)(1); (3) retaliation for complaining about age
discrimination in violation of section 12940, subdivision (h); and
(4) retaliation in violation of Labor Code section 1102.5.
In support of the FEHA discrimination and harassment
causes of action, Martinez alleged Donovan refused to promote
Martinez into several vacant battalion chief positions beginning
in February 2020, and instead promoted a substantially younger
and less qualified captain. A battalion chief is an executive level
position that delegates responsibilities to captains, oversees
projects, supervises employees, and is second in command to the
fire chief. He further alleged, in October 2020, Donovan refused
to extend the battalion chief promotion eligibility list, depriving
Martinez of any future possibility of promotion. Martinez further
alleged that, in December 2020, Donovan instructed other
battalion chiefs to unfairly criticize Martinez in his annual
performance appraisal to further limit Martinez’s opportunities
for a promotion. Martinez also alleged Donovan instructed other
battalion chiefs to undermine Martinez’s authority to elicit
further criticism of his performance.
Martinez’s third and fourth causes of action for retaliation
were premised on two complaints Martinez made to the City’s
human resources department (Human Resources). In April 2020,
Martinez complained that Donovan and another battalion chief
schemed to misuse funds allocated to the City under a federal
consent decree. Then, in May 2020, Martinez complained that
other battalion chief candidates had been given the questions and
answers to the battalion chief examination prior to the exam, and
he had been discriminated against based on his age. Martinez
alleged these complaints motivated respondents to decline to
extend the battalion chief promotion eligibility list and instead
3
hire an outside employee who was unqualified for temporarily
vacant battalion chief position, among other things.
II. Demurrer
Respondents demurred to Martinez’s complaint. The trial
court overruled the demurrer with respect to Martinez’s first,
third, and fourth causes of action. However, it sustained the
demurrer without leave to amend as to Martinez’s second cause
of action. The trial court ruled that Martinez had not sufficiently
alleged hostile nonmanagerial conduct, and the alleged harassing
behaviors identified by Martinez constituted permissible work-
related criticisms or necessary personnel management decisions
that could not form the basis of a harassment claim as a matter
of law.
III. Respondents’ motion for summary judgment
Respondents moved for summary judgment or, in the
alternative, summary adjudication, on Martinez’s remaining
causes of action. Respondents argued they were entitled to
summary adjudication on Martinez’s FEHA age discrimination
and retaliation causes of action on the grounds Martinez could
not show a nexus between his age and the alleged adverse
employment actions, and that respondents had legitimate
nondiscriminatory reasons for not promoting Martinez that were
not pretextual. Similarly, respondents argued they were entitled
to summary adjudication on Martinez’s retaliation cause of action
under Labor Code section 1102.5. They contended that Martinez
could not show his complaints regarding the consent decree funds
and the alleged FEHA violations were contributing factors in
their failure to promote Martinez as they had legitimate,
independent reasons for not promoting him irrespective of his
complaints.
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A. Respondents’ undisputed facts
Respondents submitted the following undisputed facts in
support of their motion.
1. Martinez’s career with the
Fire Department
Martinez was hired by the Fire Department in March 1992
as a firefighter. He received successive promotions until his
promotion to captain in 2009, which is the position he held until
he retired in June of 2022 at the age of 55. All events that gave
rise to Martinez’s allegations occurred during his tenure as
captain.
2. Battalion chief vacancy
When a battalion chief position became vacant, the City
began the process to fill the position in April 2019. The City
administered an exam for the position, which consisted of
tactical, oral, and written exercises.
Martinez, along with other candidates, took the exam on
April 4, 2019. The City’s municipal code provides that the
promotion to battalion chief shall be from the top three eligible
candidates. Based on the exam results, Deena Lee ranked first,
Martinez ranked second, and Evan Siefke ranked third. Lee was
promoted to battalion chief on April 29, 2019, which Martinez did
not contest.
The candidate list was set to expire on April 9, 2020, with
the option to extend the expiration date under the City’s
municipal code.
3. Martinez’s and Siefke’s tenure as acting
battalion chief
After Lee’s promotion, the Fire Department’s three
Battalion Chief positions were held by Shawn Bonfield, Breck
5
Slover, and Lee. In June 2019, Slover went on a long-term
medical leave. After temporarily assigning Lee and Bonfield to
cover Slover’s duties, Donovan gave Martinez and Siefke an
opportunity to gain on-the-job experience by allowing them to
work temporarily in the vacant battalion chief position. Donovan
also saw this as an opportunity for him and the other battalion
chiefs to monitor Martinez’s and Siefke’s performance.
That same month, the City and the El Segundo Firefighters
Association (Association) entered into a “ ‘Letter of Agreement,’ ”
stating both Martinez and Siefke would be given the opportunity
to assume the role of “ ‘[a]cting’ ” battalion chief for a minimum of
eight weeks, with no maximum duration, and each returning to
their captain position without loss of seniority or other rights.
Martinez became acting battalion chief on August 20, 2019.
His tenure was completed eight to 10 weeks later. Donovan
stated Martinez underperformed as acting battalion chief during
the assignment. The parties dispute whether the duration of
Martinez’s tenure as acting battalion chief was eight or 10 weeks;
however, the dispute is immaterial.
Siefke began his tenure as acting battalion chief in October
2019. According to Donovan, from day one, Siefke significantly
outperformed Martinez in the skills, abilities, and traits that
Donovan looked for in a battalion chief.
Once Siefke had completed his eight weeks as acting
battalion chief, Donovan spoke with Human Resources about
keeping Siefke in the battalion chief position beyond the eight
weeks. Even though the Letter of Agreement between the
Association and the City did not provide for a maximum period,
Human Resources thought calling Siefke’s out-of-rank promotion
something other than “ ‘[a]cting’ ” would be better, and
6
recommended classifying Siefke as a “ ‘[p]rovisional’ ” battalion
chief.
On January 16, 2020, Martinez sent an email to Bonfield,
with an official request to meet with Donovan to discuss “ ‘the
future of the [b]attalion [c]hief . . . position.’ ” In the e-mail,
Martinez stated, “ ‘I have learned a lot while in the position of
[b]attalion [c]hief and I still have a lot to learn about the
position.’ ”
On January 29, 2020, Donovan separately interviewed
Martinez and Siefke for the provisional appointment.
On February 10, 2020, Donovan again met with Martinez
to discuss his readiness for the battalion chief position. For the
meeting, Donovan prepared a set of questions and an analysis of
Martinez’s “[s]trengths, [w]eaknesses, [o]pportunities and
[t]hreats.” Under Martinez’s weaknesses, Donovan noted
Martinez had “ ‘[v]ery poor people skills,’ ” and “ ‘in reality
[Martinez] would much prefer being an administrative captain
working on assignments and not having to deal with people.’ ”
Donovan further noted Martinez “ ‘[d]oesn’t have a lot of
situational awareness and lacks emotional intelligence.’ ”2
Donovan also told Martinez that he needed to carry himself in a
more professional manner, specifically, he advised Martinez to
stop taking naps in the television room every day, and playing
video games on his cell phone in front of others. Donovan also
2 Martinez disputed this fact in that it omitted the positive
assessments of his performance. However, as discussed further
below, Martinez submitted these positive critiques in support of
his opposition papers.
7
discussed with Martinez the need to follow up and complete
assignments.
4. Siefke’s promotion to battalion chief
Donovan selected Siefke for the provisional appointment to
battalion chief, and announced the appointment to all fire staff in
February 2020. Donovan intended to make the appointment
permanent once the position was formally vacant. Siefke was
officially promoted in March 2020. He was 43 years old.
5. Donovan declines to extend the eligibility
list
In March 2020, Bonfield went on a year-long medical leave,
essentially vacating his position as battalion chief. Donovan
assigned Siefke and Lee to cover Bonfield’s duties.
Although it is not clear from the record, it appears the
battalion chief eligibility list was extended for six months.
The list then expired on October 8, 2020, and Donovan declined
to extend the expiration date. At the time, Donovan did not
anticipate any other battalion chief vacancies, and, even if there
was a vacancy, he was not going to promote Martinez because he
concluded Martinez performed poorly during the provisional
appointment. Donovan claimed his decision had nothing to do
with Martinez’s age.
After the eligibility list expired, Martinez was out on injury
leave and had medical issues that did not allow him to complete
the testing process for the next promotional examination before
his retirement in June 2022.
6. Martinez’s 2020 performance review
In December 2020, Lee and Siefke jointly prepared
Marinez’s 2020 performance appraisal covering the period of
October 1, 2019 through September 30, 2020. Lee and Siefke
8
collectively supervised Martinez for approximately seven months
during the evaluation period. They rated Martinez “ ‘Standard’ ”
on all but three categories on which he was rated “ ‘Above
Standard.’ ” A “ ‘Standard’ ” rating means that the employee
meets or occasionally exceeds his or her job requirements.
7. The City’s appointment of an outside
employee to a temporary battalion chief
position
At some point, respondents determined Lee and Siefke
needed additional help to cover Bonfield’s duties, as well as their
COVID-related responsibilities. In response, the City authorized
the hire of a temporary battalion chief. Respondents decided to
hire a part-time retired battalion chief from another agency.
On March 8, 2021, the City hired Tim Butler, a retired battalion
chief from Anaheim Fire and Rescue, as a part-time battalion
chief on a temporary basis. Butler was hired during a state of
emergency as additional assistance, not for a vacant position
that the City created. Butler was 62 years old when he was
hired, and his tenure ended on October 13, 2021.
B. Martinez’s opposition and additional material
facts
Martinez submitted the following additional material facts
in support of his opposition.
1. Misuse of consent decree funds and
Martinez’s complaints
In or around 2018, the Environmental Protection Agency
and Chevron entered into a consent decree, arising from events at
a Chevron refinery. Under the consent decree, Chevron would
furnish funds to various California agencies, including the Fire
Department, to purchase new safety-related equipment. In a
9
series of meetings with the City and the Fire Department
employees, Donovan stated consent decree funds were to be used
only to purchase new safety equipment. However, in January
2020, Donovan and Lee embarked on a scheme to use consent
decree funds to purchase items outside this purview.
While both Martinez and respondents describe this
purported scheme in considerable detail, the gist of Martinez’s
allegation is that Donovan and Lee attempted to receive a credit
from a vendor for new safety equipment when in actuality that
equipment had merely been cleaned and refurbished. This
alleged “switcheroo” allowed Donovan to use consent decree funds
for purposes unrelated to the purchase of new safety equipment.
In April 2020, Martinez complained to Human Resources
that the alleged scheme violated the consent decree.
An independent external investigator hired by the City and the
Fire Department found that the allegations of misappropriation
of the consent decree funds were unfounded. However, Martinez
was never interviewed, and the investigator’s report was never
produced as evidence in this action.
Donovan knew that Martinez complained about the misuse
of consent decree funds and that the City hired an external
independent investigator to investigate Martinez’s allegations.
Six months after Martinez complained about the alleged misuse
of the consent decree funds, Donovan declined to extend the
battalion chief eligibility list.
2. Martinez finds the questions and
suggested answers to the battalion chief
examination in Siefke’s file
In late 2019, Martinez found a document with the battalion
chief exam questions and suggested answers in a filing cabinet in
10
the captains’ office. Martinez found the document in a drawer
assigned to Siefke in a folder labeled “ ‘Mike Messina
Leadership.’ ”
Martinez notified his union, which investigated and then
met with Human Resources. Human Resources confirmed these
were the actual questions on the exam, and advised the union
that Mike Messina, a contractor with the City, had given Siefke
and Lee said answers prior to the exam. On May 21, 2020,
Martinez complained to the Human Resources that Siefke had
been given the battalion chief exam questions and suggested
answers. Martinez further complained that Donovan failed to
promote him because of his age.
An independent external investigator hired by the City
found the allegations regarding the exam questions were
unfounded. However, the investigator never interviewed Mike
Messina, and respondents never produced the investigator’s
report in discovery. Donovan was aware that the City hired an
external investigator to investigate Martinez’s allegations.
After Martinez complained about Siefke and Lee receiving
the questions and answers to the battalion chief exam, Siefke
informed Donovan that Martinez could no longer be trusted and
should not be promoted in light of the complaint. Further,
following the complaints, Donovan, Siefke and Lee made a
concerted effort to undermine Martinez’s authority by unjustly
criticizing his performance in front of colleagues and
subordinates. They also countermanded orders given by him to
his subordinates at active scenes in front of his colleagues and
subordinates.
11
3. Martinez’s 2020 performance review
On November 22, 2020, Martinez met with Lee and Siefke
to review his annual written performance appraisal. To have an
annual performance appraisal meeting with two battalion chiefs
was unprecedented as the Human Resources’ written policies
provide that the appraisal is to be conducted by a single
supervisor. Siefke and Lee unlawfully denied Martinez union
representation during this meeting and refused to allow him to
record the meeting.
On December 10, 2020 Martinez received his annual
written performance review. At Donovan’s instruction, Martinez
was graded unfairly by being given “ ‘standard’ ” ratings instead
of “ ‘above standard.’ ” Donovan’s actions regarding the conduct
of the November 22, 2020 meeting and the performance appraisal
were motivated by Martinez’s age and his complaints. Martinez
submitted a rebuttal letter disputing the negative evaluation by
Lee and Siefke, especially the comment that Martinez was
“ ‘biding [his] time until retirement.’ ”
4. Donovan’s ageist statements, maintenance
of a color-coded department roster
corresponding to employee’s proximity to
retirement, and alleged discrimination
against other employees based on their
age
Martinez contends Donovan repeatedly made remarks
disparaging Martinez on account of his age. He told Martinez:
“ ‘Hey, you’re the old guy around here.’ ” He also said, “ ‘[G]et on
the bus. We’re going to leave you behind.’ ” He also said, “ ‘You
know, you old guys, you’ve got to get with these technology times.
You’ve got to get with the future. You’ve got to move forward.’ ”
12
In 2018, Donovan created and maintained a document he
referred to as a “ ‘department roster.’ ” The roster was color-
coded, with red indicating those employees that had less than five
years to retirement/service remaining, yellow for those employees
that had between five and 10 years remaining, and green for
those employees with more than 10 years of service remaining.
Donovan admitted that there was a correlation between years of
service remaining and an employee’s age. He admitted one could
estimate an employee’s age range by reading the chart.
Martinez also contended that during Donovan’s tenure with
the City, and concurrently with Martinez, four other employees
suffered age-related discrimination. These employees included:
William Hatcher, Jr., an inspector who was told he was getting
old and should retire; James Tulette, a captain who had several
duties and leadership positions taken away and given to younger
employees due in part to his age; Rick Towne, who was forced
out, in part, due to his age; and Bonfield.
Despite noting Martinez’s shortcomings in his February
2020 evaluation, Donovan stated Martinez demonstrated:
“ ‘Strong administrative skills and completes an amazing amount
of work compared to his [counterparts]. Understands the
importance of analytics and data. Likes structure and order.
Follows direction very well and will destroy anyone and anything
in his path to gain results for projects. Good tactical skills and
very thorough on emergency call. Cares deeply for the
community and the service that the [Fire Department] provides.
Has huge passion and will help anyone who needs assistance.
Will give the shirt off of his back to assist others. Even though
his people skills are weak, he is well liked given his genuine care
and con[cern] for others.’ ”
13
5. The City appoints an outside employee to
a temporary battalion chief position
In or around March 2021, the City created a vacancy for a
new battalion chief position. Rather than placing Martinez, who
was qualified for that position, the City hired Butler, who was not
previously employed by the City, and had not taken the battalion
chief exam. Further, Butler was not qualified for the position
because he did not have an active emergency medical technician
license for Los Angeles County, which was required for the
position. Despite not having the license, Butler responded to two
emergency medical calls while a battalion chief with the Fire
Department.
On March 1, 2021, the Association protested the hiring of a
part-time battalion chief from outside the Fire Department in
lieu of hiring a qualified full-time employee from within the Fire
Department. The Association stated its belief that Donovan and
the City were misusing the municipal code “ ‘to hire an extra
employee and violating protocol by appointing a part-time
employee to a classified service outside of an emergency and in
lieu of provisionally appointing a qualified employee.’ ”
The Association’s president further testified he was aware
of only one instance in which a lower ranked candidate on the
battalion chief eligibility list was promoted ahead of a higher
ranked candidate. According to the Association president, in the
only instance where this occurred, the candidate who was passed
over was under investigation and was ultimately found
accountable for his actions.
Siefke stated that although it was Donovan’s decision not to
bring in Martinez as a provisional battalion chief, he told
14
Donovan that he no longer trusted Martinez because Martinez
had “ ‘broke’ ” his “ ‘trust.’ ”
In late March or early April 2023, Lee told the Association
president that in her upcoming deposition, she intended to testify
truthfully that Martinez was the more qualified candidate and
should have been promoted to battalion chief.
C. The trial court grants summary judgment in
favor of respondents
The trial court granted respondents’ motion as to each of
Martinez’s remaining causes of action.
The trial court sustained a number of respondents’
objections. It excluded Martinez’s statement that after he
complained about Siefke and Lee receiving the answers to the
battalion chief test questions, Siefke informed Donovan that in
light of the complaint Martinez could no longer be trusted and
should not be promoted. It excluded Martinez’s statements
regarding other Fire Department veterans’ beliefs about
Donovan’s ageist statements. It excluded Martinez’s conclusory
statement that respondents discriminated against him because of
his age. It excluded Towne’s statement that respondents engaged
in a course of conduct designed to force older employees,
particularly those over the age 50 to leave the Fire Department,
so Donovan could replace those employees with substantially
younger employees. It excluded the entire deposition testimony
of Tulette and Hatcher on the grounds that the depositions were
from other cases by persons who had not been shown to be
unavailable as witnesses under Evidence Code section 1292,
subdivision (a)(1). Last, it excluded Siefke’s deposition testimony
that he had told Donovan that he no longer trusted Martinez.
15
In granting respondents’ motion on Martinez’s FEHA age
discrimination claim, the trial court found Martinez had
established his prima facie case for age discrimination by
showing respondents hired a substantially younger and less
qualified employee, specifically, Siefke, over Martinez. It then
found that respondents met their burden to show Martinez was
not promoted for legitimate nondiscriminatory reasons based on
Donovan’s assessment of Martinez’s performance as acting
battalion chief. It further found that Butler’s hiring did not
qualify as an adverse employment action for Martinez, since
Butler’s position was temporary. Similarly, it found that
respondents’ alleged undermining of Martinez’s authority did not
constitute an adverse employment action. The trial court
concluded: “It is clear from the foregoing that whatever positive
attributes were noted about [Martinez] as a person, there were
far greater negative issues regarding his potential ability to lead
as [b]attalion [c]hief. The [c]ourt does not find sufficient evidence
of pretext regarding [respondents’] prof[f]ered legitimate, non-
discriminatory reason. [¶] Nor does [Martinez] cite evidence
whereby a jury could reasonably infer that Donovan’s actual
reason for failing to promote [Martinez] to [b]attalion [c]hief was
age discrimination.”
The trial court also granted summary adjudication of
Martinez’s FEHA retaliation claim. It found because Siefke was
promoted to battalion chief before Martinez complained of age
discrimination and harassment, “there could be no causation as
to this failure to promote.” Further, “the hiring of Butler in
March 2021 was for a temporary position on an emergency basis
and would not have been a promotion for [Martinez].”
It concluded, therefore, “[Martinez] fails to cite evidence
16
sufficient to raise a triable issue of material fact as to whether
he suffered retaliation for complaining about age-related
discrimination.”
The trial court also granted summary adjudication of
Martinez’s Labor Code section 1102.5 retaliation cause of action.
It found respondents established a legitimate nondiscriminatory
reason that was not pretextual for not promoting Martinez.
It further found Martinez had not established by a
preponderance of the evidence that his purported protected
activity was a contributing factor in the alleged adverse
employment actions against him. The trial court noted that,
while a triable issue of fact existed as to whether Donovan was
displeased with Martinez’s performance as acting battalion chief,
there was no evidence to suggest Donovan acted with retaliatory
motive due to Martinez complaining about the misuse of the
consent decree funds. The trial court further relied on its
previous findings that Siefke’s promotion occurred before
Martinez complained; therefore, Martinez could not show
causation.
Martinez appealed.
DISCUSSION
I. Summary judgment
“Because this case comes before us after the trial court
granted a motion for summary judgment, we take the facts from
the record that was before the trial court when it ruled on that
motion. [Citation.] ‘ “We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.” ’ [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
17
doubts concerning the evidence in favor of that party.” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)
A. Martinez’s cause of action for age
discrimination under FEHA
1. Governing law and standard of review
“California’s FEHA provides in pertinent part: ‘It is an
unlawful employment practice, unless based upon a bona fide
occupational qualification, or, except where based upon
applicable security regulations established by the United States
or the State of California: [¶] (a) For an employer, because
of . . . age . . . to refuse to hire or employ the person or to refuse to
select the person for a training program leading to employment,
or to bar or to discharge the person from employment or from a
training program leading to employment, or to discriminate
against the person in compensation or in terms, conditions, or
privileges of employment.’ ” (Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 214, quoting section 12940, subd. (a).)
“Because of the similarity between state and federal
employment discrimination laws, California courts look to
pertinent federal precedent when applying our own statutes.
[Citation.] In particular, California has adopted the three-stage
burden-shifting test established by the United States Supreme
Court for trying claims of discrimination, including age
discrimination, based on a theory of disparate treatment.”
(Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
The test, established in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas), “reflects the principle
that direct evidence of intentional discrimination is rare, and
that such claims must usually be proved circumstantially.”
(Guz, supra, 24 Cal.4th at p. 354.) “Thus, by successive steps of
18
increasingly narrow focus, the test allows discrimination to be
inferred from facts that create a reasonable likelihood of bias and
are not satisfactorily explained.” (Ibid.)
“[T]he McDonnell Douglas test places on the plaintiff the
initial burden to establish a prima facie case of discrimination.
This step is designed to eliminate at the outset the most patently
meritless claims, as where the plaintiff is not a member of the
protected class or was clearly unqualified, or where the job he
sought was withdrawn and never filled. [Citations.] While the
plaintiff’s prima facie burden is ‘not onerous’ [citation], he must
at least show ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely
than not that such actions were ‘based on a [prohibited]
discriminatory criterion.’ ” ’ ” (Guz, supra, 24 Cal.4th at pp. 354–
355.)
To establish a prima facie case of discrimination, 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, supra,
24 Cal.4th at p. 355.) “If . . . the plaintiff establishes a prima
facie case, a presumption of discrimination arises.” (Ibid.)
The burden then “shifts to the employer to rebut the presumption
by producing admissible evidence, sufficient to ‘raise . . . a
genuine issue of fact’ and to ‘justify a judgment for the
[employer],’ that its action was taken for a legitimate,
nondiscriminatory reason.” (Id. at pp. 355–356.) “If the employer
sustains this burden, the presumption of discrimination
19
disappears. [Citations.] The plaintiff must then have the
opportunity to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer any other evidence of
discriminatory motive. [Citations.] 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. [Citations.] The ultimate burden of persuasion
on the issue of actual discrimination remains with the plaintiff.”
(Id. at p. 356.)
“In addition, FEHA does not require proof that
discriminatory animus was a ‘but for’ cause of an adverse action,
only that it was a ‘substantial motivating factor.’ [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.]
Ultimately, ‘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.’ ”
(Martin v. Board of Trustees of California State University (2023)
97 Cal.App.5th 149, 162 (Martin).)
2. Analysis
Here, Martinez argues the trial court improperly granted
summary adjudication on his FEHA discrimination claim by
misapplying the McDonnell Douglas burden-shifting test.
He argues that, after he sufficiently established his prima facie
case for discrimination and then respondents provided evidence
of a legitimate, nondiscriminatory purpose for not promoting him,
the trial court erroneously ignored Martinez’s evidence of pretext
and discriminatory motive. Respondents contend that the trial
20
court properly applied the burden-shifting test but found
Martinez’s evidence was insufficient to create a triable issue of
fact regarding pretext. We find the trial court properly applied
the burden-shifting test here; however, we disagree with its
conclusion that Martinez’s evidence was insufficient to create a
triable issue of fact regarding pretext.
It is undisputed that Martinez met his initial burden to
establish a prima facie case for discrimination. He offered
evidence that he was in the protected age group, and was passed
over for a promotion by a younger and arguably less qualified
candidate. There was also evidence that the decision to promote
an arguably less qualified candidate over a more qualified
candidate had only occurred on one other occasion when the
eligible candidate was under investigation. This evidence was
sufficient to meet Martinez’s relatively low burden of proof at the
prima facie stage to establish a presumption of discrimination.
(Guz, supra, 24 Cal.4th at p. 355.)
Respondents then rebutted the presumption by producing
evidence that they declined to promote Martinez based on
legitimate nondiscriminatory reasons; specifically, Martinez’s
poor performance as acting battalion chief and Donovan’s
evaluation of Martinez’s weaknesses. (Guz, supra, 24 Cal.4th
at pp. 355–356.)
Martinez then offered additional evidence of discriminatory
motive and pretext to attack respondents’ legitimate
nondiscriminatory reasons. Most importantly, Martinez offered
evidence that Donovan made a number of ageist statements
directed to Martinez. Specifically, Martinez offered evidence that
Donovan told him, “Hey, you’re the old guy around here,” “get on
the bus. We’re going to leave you behind. You know, you old
21
guys, you’ve got to get with these technology times. You’ve got to
get with the future. You’ve got to move forward.” For purposes
of summary judgment, these statements, among other evidence,
create a dispute of fact regarding the reason that Donovan
refused to promote Martinez. A jury could conclude the ageist
statements reflect Donovan’s intent to discriminate, and the jury
could choose to discredit Donovan’s asserted reason that
Martinez performed poorly in the temporary post. This is
especially true here, where Martinez has offered other evidence
that respondents’ failure to promote him was an aberration, and
there was evidence that he may have been more qualified than
the candidate who was promoted as shown by the results of the
battalion chief examination.
Respondents argue that Donovan’s remarks are insufficient
to show pretext because they were unrelated to any personnel
decisions, made “ ‘off the cuff,’ ” and in jest. We are not
persuaded by this characterization as it would require us to
determine the weight of Donovan’s remarks, which, at best, were
ambiguous, and at worst, discriminatory. “Determining the
weight of discriminatory or ambiguous remarks is a role reserved
for the jury.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541
(Reid).)
Respondents also argue Donovan’s purported ageist
statements were merely “stray remarks,” which, standing alone,
cannot establish pretext. Our Supreme Court has criticized the
stray remarks doctrine because it allows trial courts to
improperly weigh evidence on summary judgment in FEHA
discrimination cases. (Reid, supra, 50 Cal.4th at p. 541.) Rather,
in evaluating remarks, courts must evaluate them within a
totality of the circumstances to determine whether judgment as a
22
matter of law is appropriate. (Ibid.) This includes “ ‘ “the
strength of the plaintiff’s prima facie case, the probative value of
the proof that the employer’s explanation is false, and any other
evidence that supports the employer’s case . . . .” ’ ” (Ibid.) Here,
Martinez has not merely relied on Donovan’s remarks to support
his claim. As discussed above, Martinez also offered additional
evidence, and thus he has presented evidence that potentially
undermines respondents’ proffered legitimate basis. He also
points to evidence in the record that passing over a higher-rated
candidate for promotion was an aberration within the Fire
Department. (See Martin, supra, 97 Cal.App.5th at p. 163
[employee may avoid summary judgment on discrimination claim
by demonstrating “ ‘ “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action” ’ ”].)
Martinez also offered a color-coded department roster
prepared by Donovan in which one could estimate an employee’s
age range by reading the chart. There, the employees with less
than five years remaining to retirement were colored red,
employees with 5 to 10 years remaining to retirement were
yellow, and the employees with more than 10 years remaining to
retirement were colored green. A jury could conclude that
respondents were documenting employees based on age and
making employment decisions based on age animus, as red can be
understood to represent “stop” such as in a traffic light. Further,
to the extent the document was ambiguous or respondents offered
a legitimate reason for maintaining such a document, this is a
dispute of fact that must be resolved by a factfinder. (See Reid,
supra, 50 Cal.4th at p. 541.)
23
Notably, Martinez also offered other evidence that the
decision not to promote him was pretextual. This included “me
too” evidence of other Fire Department employees, who allegedly
suffered age discrimination at the hands of Donovan. Martinez
offered statements from three other Fire Department employees
who were in his protected age group, and who claimed that
Donovan had either pressured them to retire based on age or
replaced them with substantially younger employees. While
respondents assert this “me too” evidence is not admissible to
meet Martinez’s burden as it was not sufficiently similar to
Martinez’s circumstances, we disagree. Like Martinez, these
other Fire Department employees made claims that Donovan
discriminated against them based on age; therefore, they were
admissible to show discriminatory motive.3 (See Pinter-Brown v.
Regents of University of California (2020) 48 Cal.App.5th 55, 96
[“ ‘[M]e too’ evidence can be admissible to prove intent, motive,
and the like with respect to the plaintiff’s own protected class”];
see also Johnson v. United Cerebral Palsy/Spastic Children's
Foundation of Los Angeles and Ventura Counties (2009)
173 Cal.App.4th 740, 767 [“Dissimilarities between the facts
related in the other employees’ declarations and the facts
asserted by plaintiff with regard to her own case go to the weight
of the evidence, not its admissibility”].)
3 We conclude it was error to exclude this evidence on
Evidence Code section 1292 grounds at the summary judgment
stage. (See Williams v. Saga Enterprises, Inc. (1990)
225 Cal.App.3d 142, 149, fn. 3 [holding trial court could consider
the transcript of testimony from a related criminal case in
deciding a motion for summary judgment].)
24
In sum, under the totality of the circumstances, Martinez’s
additional evidence was sufficient to create a triable issue of fact
on whether respondents’ legitimate nondiscriminatory reasons to
not promote Martinez were pretextual. (See Guz, supra,
24 Cal.4th at p. 356.)
B. Martinez’s causes of action for retaliation
under section 12940, subdivision (h)
Martinez argues the trial court erred in granting summary
judgment on his FEHA retaliation claim, when it found none of
respondents’ postcomplaint actions constituted an adverse
employment action and Martinez failed to introduce pretextual
evidence of intentional retaliation. He argues Donovan’s refusal
to extend the eligibility list, Lee’s and Siefke’s unjust critiques
and undeserved performance appraisal, and respondents’ hiring
of an outside employee to a vacant battalion chief position
constituted adverse employment actions. We agree with
Martinez that he established triable issues of fact.
1. Governing law
Section 12940, subdivision (h), “makes it an unlawful
employment practice ‘[f]or any employer . . . to discharge, expel,
or otherwise discriminate against any person because the person
has opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in any
proceeding under this part.’ ” (Yanowitz, supra, 36 Cal.4th at
p. 1042, italics omitted.) “[T]o establish a prima facie case of
retaliation under the FEHA, a plaintiff must show (1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.”
(Yanowitz, at p. 1042.) “Once an employee establishes a prima
25
facie case, the employer is required to offer a legitimate,
nonretaliatory reason for the adverse employment action.
[Citation.] If the employer produces a legitimate reason for the
adverse employment action, the presumption of retaliation
‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the
employee to prove intentional retaliation.” (Ibid.)
2. Analysis
With respect to Martinez’s prima facie burden, the parties
do not dispute Martinez’s complaints constituted protected
activity. Rather, they dispute whether Martinez presented
evidence that respondents took adverse employment actions
against him and whether Martinez established a causal link
between the protected activity and respondents’ actions.
In support of his claim that he suffered an adverse
employment action, Martinez relies on the fact that Donovan
declined to extend the eligibility list in October 2020 and hired an
outside employee to a vacant battalion chief position in
March 2021. He also relies on Siefke’s and Lee’s negative
performance appraisal.
The term “adverse employment action” is interpreted
broadly to further the fundamental antidiscrimination purposes
of FEHA. Thus, an employee is protected against unlawful
discrimination with respect not only to ultimate employment
actions such as termination or demotion, but also other
employment actions that are reasonably likely to adversely and
materially affect the employee’s job performance or opportunity
for advancement in his or her career. (Yanowitz, supra,
36 Cal.4th at pp. 1053–1054.)
With respect to Lee’s and Siefke’s performance appraisal of
Martinez, we do not consider this evidence as Martinez made no
26
showing that the performance appraisal was in fact negative or
that it negatively affected his ability to advance within the Fire
Department. Rather, it was undisputed that Lee and Siefke
rated Martinez “standard” in most categories and “above
standard” in a few categories. Martinez provided no evidence
that “standard” or “above standard” ratings are reasonably likely
to adversely and materially affect Martinez’s job performance or
opportunity for advancement. (Yanowitz, supra, 36 Cal.4th at
pp. 1053–1054.)
However, we find Donovan’s refusal to extend the eligibility
list when Martinez was the only remaining candidate and
respondents’ hiring of an outside employee for the vacant
battalion chief position (even if that position was temporary) was
sufficient evidence for a trier of fact to conclude Martinez suffered
an adverse employment action. A trier of fact could find that
Donovan’s refusal to extend the eligibility list when Martinez was
the only remaining candidate, and respondents’ decision to hire
an outside employee to cover a vacant battalion chief position
adversely affected Martinez’s opportunity for advancement; thus,
constituting an adverse employment action. (Yanowitz, supra,
36 Cal.4th at p. 1054.) This inference is supported by the fact
that both Martinez and Siefke were temporarily placed in a
battalion chief position to decide whether they were ready for a
promotion. Moreover, Donovan’s decision to not extend the
eligibility list effectively precluded Martinez from filling the
temporary position to show he was ready to become a battalion
chief. Thus, by not extending the promotion list and not giving
Martinez another opportunity to work as a battalion chief, even if
only temporarily, respondents effectively cut off any further
27
opportunity for Martinez to be promoted, i.e., to advance in his
career.
We also conclude Martinez established a triable issue of
fact on whether there was a causal link between the protected
activity and respondents’ actions. Martinez offered evidence that
Donovan declined to extend the eligibility list several months
after Martinez made his official complaints. This evidence was
sufficient to meet his prima facie burden for purposes of
summary judgment. (See Castro-Ramirez v. Dependable
Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1049 [finding
the proximity between plaintiff’s complaints and the adverse
employment action combined with plaintiff’s evidence that
defendant’s actions were pretextual was sufficient to defeat
summary judgment on retaliation cause of action].)
Respondents then offered legitimate nonretaliatory reasons
for the adverse employment action; specifically, Martinez’s poor
performance as acting battalion chief and lack of characteristics
identified by Donovan as those are necessary for a promotion to
battalion chief. Respondents also offered evidence that Donovan
did not anticipate any additional battalion chief openings which
would have made extending the eligibility list necessary. The
burden thus shifts to Martinez to create a triable issue of fact on
whether respondents engaged in intentional retaliation.
(Yanowitz, supra, 36 Cal.4th at p. 1042.)
We conclude Martinez offered sufficient evidence for a trier
of fact to potentially conclude respondents’ actions were
intentional retaliation. First, there was temporal proximity of
Martinez’s protected activity and respondents’ adverse
employment actions to support an inference that respondents
intentionally retaliated against Martinez. Martinez made his
28
first official complaint regarding the alleged misuse of consent
decree funds in April 2020 and the battalion chief eligibility list
was not extended six months later in October 2020. (See George
v. California Unemployment Ins. Appeals Bd. (2009)
179 Cal.App.4th 1475, 1492 [describing four months as “relatively
close timing,” from which supporting inferences of retaliatory
animus could be drawn].) Second, there was evidence that
Donovan knew of the complaints and that he was also the subject
of the complaints. (See McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 388 [a causal link
may be established by showing employer’s knowledge that the
employee engaged in protected activities and the proximity in
time between the protected action and the allegedly retaliatory
employment decision].) Third, Martinez presented evidence that
respondents refused to extend the eligibility list when Martinez
was potentially the only qualified candidate within the Fire
Department to fill any potential vacant battalion chief position.
(See id. at p. 389.) Finally, the Association claimed that Donovan
violated established protocols by hiring an outsider for the
temporary battalion chief position over a Fire Department
employee, a category that included Martinez. (See Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
We conclude this evidence was sufficient to create a triable
issue of fact under section 12940, subdivision (h).
C. Martinez’s cause of action for retaliation under
Labor Code section 1102.5
Martinez makes similar arguments as to why summary
adjudication was improperly granted with respect to his Labor
Code section 1102.5 retaliation cause of action. For the reasons
discussed above, we find Martinez sufficiently established his
29
prima facie case for retaliation, and created a triable issue of fact
regarding his allegation that respondents’ legitimate reasons
were pretextual. Nevertheless, because FEHA retaliation claims
and Labor Code section 1102.5 retaliation claims have different
standards, we discuss Martinez’s Labor Code section 1102.5
claim separately here.
1. Governing law
Labor Code section 1102.5 is “ ‘California’s general
whistleblower statute.’ ” (Hawkins v. City of Los Angeles (2019)
40 Cal.App.5th 384, 392 (Hawkins).) “That section prohibits an
employer from retaliating against an employee for disclosing to a
government or law enforcement agency a violation of state or
federal statute. [Citation.] The section reflects a public policy of
encouraging workplace whistleblowers to report unlawful acts
without fear of retaliation.” (Ibid.) “To establish a violation,
a plaintiff must make a prima facie case of retaliation. To do
that, plaintiff must show he engaged in protected activity, his
employer subjected him to an adverse employment action, and
the existence of a causal link between the two.” (Id. at pp. 392–
393.) Once the plaintiff demonstrates by a preponderance of the
evidence that his engagement in a protected activity was a
contributing factor in the alleged prohibited action, the employer
shall have the burden of proof to demonstrate by clear and
convincing evidence that the alleged action would have occurred
for legitimate, independent reasons even if the employee had not
engaged a protected activity. (Lab. Code, § 1102.6.) “The
plaintiff must then show that the explanation is a pretext for the
retaliation.” (Hawkins, at p. 393.)
30
2. Analysis
Here, as discussed in section B above, Martinez met his
prima facie burden to show he engaged in protected activity,
suffered an adverse employment action, and established a causal
link between the two.
Assuming respondents’ evidence of legitimate
nonretaliatory reasons for allowing the eligibility list to lapse and
declining to promote Martinez to the temporarily vacant
battalion chief position met the clear and convincing standard
under the Labor Code, the burden shifts to Martinez to prove
retaliatory animus.
For the reasons discussed above, we find Martinez
sufficiently created a triable issue of fact on whether respondents
acted with retaliatory animus. Specifically, the proximity in time
between Martinez’s complaints and Donovan’s decision to not
extend the eligibility list; that Donovan knew of and was the
subject of Martinez’s complaints; that Donovan refused to extend
the eligibility list when Martinez was the only remaining
candidate; and that Donovan chose a nonemployee to serve as the
temporary battalion chief.
For these reasons, we find the trial court erred in granting
summary adjudication on Martinez’s retaliation cause of action
under Labor Code section 1102.5.
II. Demurrer to Martinez’s cause of action for
harassment under section 12940, subdivision (j)(1)
Last, Martinez argues the trial court abused its discretion
when it sustained respondents’ demurrer without leave to amend
as to his cause of action for harassment under section 12940,
subdivision (j)(1). Again, we agree with Martinez.
31
A. Standard of review
“A demurrer tests the legal sufficiency of the complaint.
We review the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action. For purposes of review,
we accept as true all material facts alleged in the complaint, but
not contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. [Citation.]
When a demurrer is sustained without leave to amend, ‘we decide
whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.’ [Citation.] Plaintiff has the burden to
show a reasonable possibility the complaint can be amended to
state a cause of action.” (Hamilton v. Greenwich Investors XXVI,
LLC (2011) 195 Cal.App.4th 1602, 1608–1609, fn. omitted.)
B. Governing law
Section 12940, subdivision (j)(1), makes it unlawful for an
employer to harass an employee based on age. (See Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 705–706 (Roby).)
“[H]arassment focuses on situations in which the social
environment of the workplace becomes intolerable because the
harassment (whether verbal, physical, or visual) communicates
an offensive message to the harassed employee.” (Id. at p. 706.)
To establish a prima facie case for harassment, the plaintiff must
show (1) he was a member of a protected class; (2) he was
subjected to unwelcome harassment; (3) the harassment was
based on his protected status; (4) the harassment unreasonably
interfered with his work performance by creating an
intimidating, hostile, or offensive work environment; and (5) the
32
defendant is liable for the harassment. (Thompson v. City of
Monrovia (2010) 186 Cal.App.4th 860, 876 (Thompson).)
“ ‘ “[H]arassment consists of conduct outside the scope of
necessary job performance, conduct presumably engaged in for
personal gratification, because of meanness or bigotry, or for
other personal motives. . . . [¶] . . . [¶] . . . [C]ommonly necessary
personnel management actions . . . do not come within the
meaning of harassment. . . .” ’ ” (Roby, supra, 47 Cal.4th at
p. 707, quoting Reno v. Baird (1998) 18 Cal.4th 640, 645–647.)
“Nevertheless, official employment actions [may constitute] the
evidentiary basis of the harassment cause of action, because the
supervisor used those official actions as his means of conveying
his offensive message.” (Roby, at p. 708.) “[I]n some cases the
hostile message that constitutes the harassment is conveyed
through official employment actions, and therefore evidence that
would otherwise be associated with a discrimination claim can
form the basis of a harassment claim.” (Ibid.)
C. Analysis
Here, Martinez does not argue that his allegations were
sufficient to state a cause of action for harassment; however, he
argues the trial court abused its discretion in denying him leave
to amend.
“It is well established that ‘California courts have “a policy
of great liberality in allowing amendments at any stage of the
proceeding so as to dispose of cases upon their substantial merits
where the authorization does not prejudice the substantial rights
of others.” [Citation.] Indeed, “it is a rare case in which ‘a court
will be justified in refusing a party leave to amend his [or her]
pleading so that he [or she] may properly present his [or her]
case.’ ” [Citation.]’ [Citation.] Thus, absent a showing of
33
prejudice to the adverse party, the rule of great liberality in
allowing amendment of pleadings will prevail.” (Board of
Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.)
Martinez responds he was entitled to add allegations of
Donovan’s ageist statements, that respondents’ personnel
management decisions were made for the purpose of harassing
Martinez, the alleged actions were pervasive such that they
would have unreasonably interfered with the work performance
of a reasonable employee in the protected age group and so
affected Martinez, and respondents’ actions were motivated by
age. We find these allegations are sufficient to meet Martinez’s
relatively low burden at the pleading stage and Martinez is
entitled to amend his complaint.
Further, we are not persuaded by respondents’ attempts to
distinguish the facts here with authorities where the court found
the evidence was insufficient to prove or at least create a triable
issue of fact on whether plaintiff established a claim for
harassment. Those cases were appeals from either a grant of
summary judgment or a jury verdict. (Roby, supra, 47 Cal.4th at
692 [appeal from a jury verdict]; Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 451 [appeal from grant of
summary judgment]; Thompson, supra, 186 Cal.App.4th at p. 880
[appeal from grant of summary adjudication].) Martinez was
only required to allege the basic elements of a harassment claim
and his proposed amendments are sufficient to show the trial
court should have granted him leave to amend.
34
DISPOSITION
The judgment is reversed. Appellant shall recover his costs
on appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
GRIMES, J.
35