The opinion
Filed 2/14/25 Baek v. County of Los Angeles CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LINDA BAEK, B335323
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV16667)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Douglas W. Stern, Judge. Reversed and
remanded.
Lazarski Law Practice and Bryan J. Lazarski for Plaintiff
and Appellant.
Sheppard, Mullin, Richter & Hampton, Ronda D.
Jamgotchian, Paul Berkowitz, and Hilary Habib for Defendant
and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff and appellant Linda Baek sued defendant and
respondent County of Los Angeles (the County), alleging
violations of the Fair Employment and Housing Act, Government
Code section 12900 et seq. (FEHA). Baek, a Deputy District
Attorney (DDA), claimed that after she reported harassment and
disparate treatment, the County retaliated against her by, among
other things, failing to promote her. Baek also alleged the
County failed to prevent harassment, discrimination, and
retaliation.
The trial court granted summary judgment or,
alternatively, summary adjudication. We conclude that the
County failed to meet its burden to demonstrate Baek cannot
establish the elements of her retaliation cause of action or that
the County has a complete defense. Further, triable issues of
material fact exist regarding Baek’s claim that the County failed
to promote her in retaliation for her protected activity. We
therefore reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, the County hired Baek as a DDA I. Between 1995
and 1997, Baek tried 11 felony cases to a jury. She was promoted
to DDA II in 1998, and to DDA III in 2000.
Baek alleged that in June 2014, Bob Knapp, an employee
who conducted office hearings for juveniles, invited her to his
office to discuss a trip she was planning. According to Baek, once
she was in his office, Knapp began to stroke her arm. Baek
jumped back, left Knapp’s office, returned to her own, and closed
the door. Knapp followed Baek to her office and stood behind her
desk chair. He put a hand on her back, over her dress, where her
bra strap was. Baek told Knapp to get out. Baek testified that
2
she immediately told her friend, Joanne Baeza, who was an
assistant head deputy. Baek did not report the incident to
human resources or ask Baeza to report it. However, she
believed Baeza should have reported the incident.
Baek received overall ratings of “Met Expectations
(Competent)” or “Exceeded Expectations (Very Good)” on her
performance evaluations after this incident.
In 2016, Baek learned that the post-conviction and
discovery division (PC&D) was looking for DDAs. Many of the
division’s employees worked in Long Beach, which was closer to
Baek’s home than downtown Los Angeles. In December 2016,
she interviewed with Brian Schirn, who hired her to PC&D.
When Baek was transferred to PC&D, Janet Moore, Baek’s
former supervisor, told Schirn, “ ‘You should be aware that we
had a problem here with [Baek’s] time.’ ” Moore told Schirn that
“the judge would call and say [Baek] wasn’t in court.” Baek
testified that when she joined PC&D, Schirn told her in front of
her new supervisor, “ ‘You know, Janet Moore has told me, you
know, some bad things about you, and, remember, you are being
housed in Long Beach. It is not something you’re entitled to, not
a right, it’s a privilege.’ ” He indicated that if she “ ‘create[d]
waves,’ ” she would “ ‘jeopardize it for everybody else [Schirn had]
housed in Long Beach . . . .’ ”
Schirn was the head deputy for the duration of Baek’s time
working in PC&D. He worked in downtown Los Angeles but
occasionally visited the Long Beach office. When Baek was first
assigned to PC&D, DDAs were supposed to work in the office five
days a week. However, while working under Schirn, Baek had
access to a virtual private network (PULSE) that allowed
individuals to work from home. In March 2017, Schirn went to
3
the Long Beach office and saw that Baek was not working in the
office. When he contacted to ask where she was, Baek stated that
she was at home, dealing with a dishwasher issue. She later
submitted a timecard stating that she had worked a full day.
According to Schirn, he was not comfortable signing an
inaccurate timecard and asked Baek to submit a corrected card
reflecting that she had not worked the full day. Baek did so.
Baek does not dispute that she was working from home on that
day. She did not provide Schirn with any advance notice that she
would not be in the office because the dishwasher issue was
unexpected. She admitted that she did not work a full eight
hours that day but denied that she told Schirn that she was in
the office.
Schirn later sent an e-mail to a group of DDAs in which he
stated that working in Long Beach was a privilege, not a right.
Although Schirn did not mention her by name in the e-mail, Baek
felt that he sent the e-mail to make a “public spectacle of [her]”
and to “publicly . . . humiliate [her] or flog [her].”
In 2018, Schirn switched Baek from PC&D to the Third
Strike Resentencing Unit (TSR) after rewarding Baek with a
“challenge coin” for good performance. Schirn told Baek that TSR
was a better assignment. Schirn copied his supervisors on the e-
mail awarding Baek the challenge coin. Soon after, Schirn
sought to assign Baek to the HABLIT unit. In 2017, Baek had
requested that Schirn assign her HABLIT cases. However, Baek
had since observed that the unit required “a lot of experience in
. . . trials and things like that” and she did not feel prepared to
work in the unit. When Schirn gave Baek a HABLIT case, Baek
indicated she had no training or experience and did not feel
4
prepared to take over a case that was already in the middle of
proceedings. She did not work on the HABLIT case.
In December 2018, Baek applied for a promotion to DDA
IV. She took an exam and received ratings from Schirn for
various skills, which were reviewed by Schirn’s supervisor,
Kellyjean Chun. A rating sheet was also prepared for Baek.
Although she received the most credits possible for experience as
a DDA III and seniority, she received 0 out of 30 possible credits
for jury trial experience. Schirn gave Baek an overall score of
“well qualified” in five areas and “exceptionally qualified” in one
area. Baek received an overall score of 90, which placed her in
Band 1, the highest scoring band of applicants. At her
deposition, Baek testified that she was unaware of whether
anyone promoted to DDA IV had less jury trial experience than
she did. Baek did not know how many people were promoted to
DDA IV from Band 1, why those promoted were chosen, or who
was responsible for making promotion decisions. This was Baek’s
first and only application for the DDA IV position.
In 2019, a decision was made to transfer Baek to Compton
to handle out-of-custody filings. Baek did not know why she was
transferred to Compton. Schirn was not involved in the
“administrative decision” to transfer Baek. However, on May 23,
2019, he went to the Long Beach office to tell her about the
transfer in person. When Schirn arrived, Baek was not in the
office. After Schirn contacted Baek, she said she would go to the
office. She arrived three hours later. According to Schirn, he
became concerned about Baek not working in the office and
decided to remove her access to the virtual private network.
On June 5, 2019, Baek sent Schirn an e-mail accusing him
of a “repeated pattern of disparate treatment” that had “created a
5
hostile work environment,” following an exchange about revoking
Baek’s virtual private network access. Baek asserted that Schirn
had called to “scream at [her] that [he] always require[d] all the
DDAs to revoke their PULSE access immediately when they
leave PCD.” Baek indicated she had learned Schirn had not
required any DDAs who left PC&D to immediately “revoke
PULSE” and noted she still had two weeks left in the unit.
Schirn forwarded Baek’s e-mail to Chun, who forwarded it to
Elizabeth Ratinoff, a Special Assistant in the Employee Relations
Division. Schirn also forwarded it to a number of individuals who
did not have supervisory authority over Baek, including with the
note “ ‘OMG’ ” to one individual. The following day, Schirn wrote
an e-mail to Baek, copying Chun. He wrote that on the day he
went to Long Beach to tell her about the transfer decision, he had
waited for her to return to the office from 1:30 to 3:00 p.m., when
she finally arrived. While he waited, “a number of people
volunteered to [him] that [Baek was] often not physically in Long
Beach.” Based on this and past occasions when Baek was not
present at the Long Beach office, including the dishwasher
incident, Schirn was “uncomfortable with [Baek’s] continued use
of [the virtual private network].” He therefore decided to remove
Baek’s access to the virtual private network and informed her of
the removal.
On June 11, 2019, Ratinoff and investigator Tony Avila
interviewed Baek concerning the e-mail.1 In September 2019,
Baek e-mailed Ratinoff and Avila to inquire about the status of
1 On June 11, 2019, an anonymous complaint was filed with
the County of Los Angeles Policy of Equity (CPOE). The County
suggests the interview with Ratinoff and Avila also concerned
that anonymous complaint.
6
the investigation. Ratinoff replied that she was writing a letter
explaining the outcome of the investigation and anticipated
mailing it the following week. On October 15, 2019, the
Employee Relations Division sent Baek a “Letter of
Determination” stating that “[m]anagement has reviewed your
concerns and taken the appropriate action” and the “matter is
now concluded.” Ratinoff subsequently explained to Baek in an e-
mail thread that the matter was not referred to the CPOE unit.
Later in October 2019, Baek filed a complaint with the
CPOE asserting Schirn had created a hostile work environment
and subjected her to disparate treatment based on her age and
race/ethnicity. However, according to a complaint intake
assessment form, Baek had told DA investigators that Schirn’s
conduct was not based on a protected status and she did not
know “ ‘why he did what he did.’ ” The complaint was closed with
an indication that Baek “failed to identify sufficient independent
information to proceed.”
In October 2020, Baek filed two additional CPOE
complaints. Baek alleged that Schirn “subjected her to disparate
treatment and harassment based on gender, ethnicity and race,
and to retaliation [sic] for her participation in previous [CPOE]
complaints” by “ ‘[t]hreaten[ing]’ her to ‘behave’ in December
2016,” failing to provide her an office,2 making her store boxes
with case information in downtown Los Angeles when she worked
in Long Beach, “ ‘[p]revent[ing]’ her from transferring to other
2 At her deposition, Baek admitted that she declined an office
for being too dusty, stated that she did not need an office because
she could work in attorney rooms at the courthouse, and turned
down a colleague’s offer to share an office or to give the office to
Baek.
7
units who had expressed interest in her,” and “[y]ell[ing] at her
over the phone regarding PULSE access in June 2019.” Baek
also alleged she had informed Baeza of a “potential CPOE
violation” in June 2014, and Baeza failed to take action or file a
complaint on Baek’s behalf.
Baek was interviewed in connection with the investigation
of her complaints in November 2020 and July 2021. The
investigation was completed October 25, 2022. The investigative
report stated that the County Equity Investigations Unit had
interviewed 15 witnesses. The report concluded that, with the
exception of one witness, “none of the witnesses interviewed or
documentation submitted support[ed] the allegations.” The
report also indicated that Baeza denied Baek’s allegations.
In early 2021, Alisa Blair, a special advisor to the District
Attorney, was involved in launching a prefiling diversion
program for juveniles. Baek asked to be involved in the program.
But when it finally launched, Baek was not brought in to work
with the program. Baek testified at her deposition that she was
“uniquely qualified” for the program and Blair informed her that
executive administration had approved the transfer, before later
telling her that the transfer was delayed.
Blair stated in a declaration that it appeared to her that
Baek was “not interested in being transferred to juvenile
generally,” and “wanted to work only on the juvenile diversion
program and not be assigned to work in the juvenile division (i.e.,
she did not want to be in court with a caseload).” This was
corroborated by Baek’s “Assignment Preferences” list, in which
she stated that she “would like to work for Alisa Blair in juvenile
diversion programs, not the traditional juvenile prosecutions.”
Blair explained to Baek that it was not possible to be transferred
8
to a program rather than a department and that Baek would
need to carry a caseload and make court appearances. Blair
stated that Baek called repeatedly about wanting to work with
various programs without carrying a caseload or appearing in
court. Baek also asserted the administration was disrespecting
Blair and Blair should have more authority. Blair disagreed and
also felt uncomfortable with Baek’s “constant phone calls, texts,
and emails . . . .” Although Blair was not responsible for deciding
who would be transferred, she no longer requested that Baek be
transferred and Baek ultimately was not transferred. Blair
declared that Schirn was not involved in the transfer decision.
She also indicated that she had never spoken to Schirn “one-on-
one about [Baek] or anything else.”
In April 2021, Baek filed a Department of Fair
Employment and Housing (DFEH) complaint alleging that she
had been the subject of harassment, discrimination, and
retaliation.3 She received an immediate right-to-sue letter.
In May 2021, Baek filed a complaint against the County
asserting causes of action for gender discrimination under FEHA,
retaliation under FEHA for reporting discrimination and
harassment, associational disability discrimination under FEHA,
retaliation for taking leave protected by the California Family
Rights Act (CFRA), retaliation under FEHA for requesting
reasonable accommodation, and failure to prevent harassment,
discrimination, and retaliation under FEHA.
In June 2022, the County moved for summary judgment or,
in the alternative, summary adjudication of all claims, on the
grounds that Baek’s claims based on pre-2020 activity were time-
3 Effective June 30, 2022, DFEH was renamed the Civil
Rights Department. (Stats. 2022, ch. 48, § 4.)
9
barred and Baek failed to establish a prima facie case of
discrimination or retaliation. In September 2023, Baek filed her
opposition. In it, she indicated she was voluntarily dismissing
her causes of action for gender discrimination and associational
disability discrimination under FEHA, retaliation for taking
leave protected by the CFRA, and retaliation under FEHA for
requesting reasonable accommodation. Baek also clarified that
the adverse employment actions on which she was relying were:
(1) failure to promote her to DDA IV; (2) failure to provide her
meaningful work commensurate with her skills and unique
experience; (3) failure to investigate her complaints in a timely
and meaningful manner; and (4) failure to act to protect her
professional reputation.
In its ruling, the trial court observed that Baek “attempts
to cobble together various disparate facts occurring over many
years to claim that they supply sufficient evidence to raise a
triable issue of fact. They do not.” It concluded that Baek’s claim
concerning the failure to promote “may be time-barred,” but
opted to address the County’s substantive arguments concerning
Baek’s retaliation claim. The trial court only expressly addressed
the failure to promote claim. It observed that Baek provided no
evidence linking any of the protected activities to the failure to
promote, and she testified that she did not know the process for
promotion to DDA IV or why she was not promoted. The court
concluded that, “[w]ithout evidence of a causal connection
between [Baek’s] claimed protected activity and the adverse
employment action,” she had failed to establish a prima facie case
for retaliation. Because it granted summary adjudication of her
retaliation claim, the trial court also granted summary
10
adjudication of Baek’s cause of action for failure to prevent
harassment, discrimination, and retaliation.
The trial court entered judgment in December 2023. Baek
timely appealed.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate if there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) A defendant moving for summary judgment
has the initial burden of showing that a cause of action lacks
merit because the plaintiff cannot establish an element of the
cause of action or there is a complete defense. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 853 (Aguilar).) If the defendant satisfies this initial
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact based on
specific facts. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at
p. 850.)
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar,
supra, 25 Cal.4th at p. 850, fn. omitted.) “In determining if the
papers show that there is no triable issue as to any material fact,
the court shall consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and
sustained by the court, and all inferences reasonably deducible
from the evidence, except summary judgment shall not be
11
granted by the court based on inferences reasonably deducible
from the evidence if contradicted by other inferences or evidence
that raise a triable issue as to any material fact.” (Code Civ.
Proc., § 437c, subd. (c).)
“ ‘This court reviews de novo the trial court’s decision to
grant summary judgment and we are not bound by the trial
court’s stated reasons or rationales. [Citation.]’ ” (Kaur v. Foster
Poultry Farms LLC (2022) 83 Cal.App.5th 320, 336.) “ ‘ “We
liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence
in favor of that party.” ’ [Citation.]” (Hampton v. County of San
Diego (2015) 62 Cal.4th 340, 347.)
In the employment discrimination context, the employee’s
“subjective beliefs . . . do not create a genuine issue of fact; nor do
uncorroborated and self-serving declarations.” (King v. United
Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; accord,
Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1159 (Featherstone).)
II. Administrative Exhaustion Under FEHA
Baek has opted to pursue only her FEHA causes of action
for retaliation and failure to prevent discrimination, harassment,
and retaliation. “Under the FEHA, the employee must exhaust
the administrative remedy provided by the statute by filing a
complaint with the [DFEH] and must obtain from the [DFEH] a
notice of right to sue in order to be entitled to file a civil action in
court based on violations of the FEHA. [Citations.] The timely
filing of an administrative complaint is a prerequisite to the
bringing of a civil action for damages under the FEHA.”
(Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.)
12
The County contends Baek failed to exhaust her
administrative remedies in two ways. First, the County argues
Baek’s DFEH complaint failed to reference three of the four
adverse actions she has now identified as the basis of her claims.
Second, the County argues Baek failed to timely file a DFEH
complaint regarding any retaliatory failure to promote and the
claim is therefore time barred. We determine the County has not
established its entitlement to summary adjudication on either
ground.
A. Failure to raise issues in the DFEH complaint
The County argues that Baek’s DFEH complaint failed to
reference the County’s alleged failure to promote her, the failure
to protect her reputation, and the failure to provide meaningful
work, thus she did not exhaust administrative remedies.4 We
disagree.
When an employee seeks judicial relief for incidents not
listed in the original charge, she must show that the additional
incidents are “ ‘like or reasonably related to’ ” the allegations
contained in the administrative charge. (Yurick v. Superior
Court (1989) 209 Cal.App.3d 1116, 1121, quoting Ong v. Cleland
(9th Cir. 1981) 642 F.2d 316, 320.) There need not be a “ ‘perfect
“fit” between the administrative charge and the judicial
complaint . . . if the policies of promoting conciliation and
avoiding bypass of the administrative process have been served.’
[Citation.]” (Yurick, at pp. 1121–1122, quoting Ong, at p. 319.)
“For example, where the administrative charge alleged a pattern
of discrimination or continuous retaliation, it [is] appropriate to
4 The County does not claim that Baek’s DFEH complaint
failed to reference its alleged failure to investigate.
13
allege subsequent unlawful conduct in the lawsuit.” (Yurick, at
p. 1122.)
Baek’s DFEH complaint alleged “a coordinated pattern of
continuing violations that began when [Baek] complained of
sexual harassment by a co-worker in 2014” and “continued to as
recently as April 2021.” The allegations of Baek’s DFEH
complaint are essentially identical to those of the judicial
complaint. The DFEH complaint alleged that upon Baek’s return
from leave in 2015, she was “demoted” to handling preliminary
hearings, which she alleged was a task below her experience
level. The DFEH complaint further alleged that in 2021, Baek
did not receive a transfer to the prefiling juvenile diversion
program, even though she was “uniquely qualified” to work in the
program. It also alleged that Schirn disparaged Baek to her
colleagues as recently as November 2020. These allegations are
like or reasonably related to her arguments in opposition to
summary judgment that the County failed to provide her
meaningful work and failed to protect her reputation.
As to retaliatory non-promotion, the DFEH complaint only
generically alleged that Baek experienced retaliation and, as a
result, “was denied hire or promotion, reprimanded, demoted,
denied any employment benefit or privilege, denied work
opportunities or assignments, denied or forced to transfer.” It did
not reference Baek’s December 2018 DDA IV application.
However, “what is submitted to the DFEH must not only be
construed liberally in favor of plaintiff, it must be construed in
light of what might be uncovered by a reasonable investigation.”
(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268
(Nazir); see id. at p. 267 [“ ‘[i]t is sufficient that the [DFEH] be
apprised, in general terms, of the alleged discriminatory parties
14
and the alleged discriminatory acts’ ”].) The allegation that the
County failed to promote Baek would likely lead to investigation
of her DDA IV application.
Baek claimed that the failure to promote was retaliation for
the same acts described in the DFEH complaint. This is not a
case where “ ‘the difference between the charge and the
complaint is a matter of adding an entirely new basis for the
alleged discrimination,’ ” retaliation, or harassment, which would
support the conclusion that Baek did not exhaust her
administrative remedies. (Okoli v. Lockheed Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1615; see also Baker
v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d
1057, 1065 [concluding that it was “reasonable that an
investigation of the allegations in the original DFEH complaint
would lead to the investigation of subsequent discriminatory acts
undertaken by respondents in retaliation for appellant’s filing an
internal grievance”].)
Under the circumstances, we conclude that a DFEH
investigation into Baek’s retaliation claims would likely have led
to the investigation of the purported retaliatory acts she now
asserts are the basis of her claims. Resolving doubts in Baek’s
favor, as we must, we conclude the County did not establish that
Baek failed to exhaust her administrative remedies.
B. Timeliness of the retaliation claim based on
failure to promote
The County additionally contends that Baek failed to
timely file a DFEH complaint addressing a retaliatory failure to
promote.
As an initial matter, we reject Baek’s contention on appeal
that the County forfeited the argument that her failure to
15
promote claim was time-barred by failing to raise it in the
summary judgment moving papers below. The County’s motion
for summary judgment argued that claims premised on activity
that occurred before 2020 were time-barred. Baek’s complaint
referred only generally to a failure to promote. After Baek’s
opposition to the motion specifically identified the failure to
promote her to DDA IV as a basis of her retaliation claim, the
County responded in its reply brief by arguing that the DFEH
complaint was not timely filed with respect to the DDA IV
promotion claim. The trial court addressed the argument in its
ruling below. The issue was adequately preserved for appellate
review. Nonetheless, we conclude the County failed to meet its
initial burden to demonstrate it has a complete defense to the
retaliatory non-promotion claim based on the statute of
limitations.
FEHA claims accruing before January 1, 2019, are subject
to a one-year statute of limitations. (Gov. Code, § 12960,
subd. (e)(5); Stats. 2019, ch. 709, §§ 1, 3, eff. Jan. 1, 2020
[enlarging limitations period to three years from one, but
expressly stating the act “shall not be interpreted to revive lapsed
claims”].) The County contends the alleged adverse act of not
promoting Baek to DDA IV is time-barred because it occurred in
2018; the claim accrued before January 1, 2019 and was therefore
lapsed before changes in the law effective January 1, 2020
enlarged the limitations period to three years; and Baek did not
file her DFEH complaint until April 2021. The County supports
this argument with undisputed evidence that Baek applied for
promotion in December 2018.
Yet, in Pollock v. Tri-Modal Distribution Services, Inc.
(2021) 11 Cal.5th 918, 941 (Pollock), our Supreme Court held
16
“that a FEHA harassment claim based on a failure to promote
accrues, and the limitations period under [Government Code]
section 12960 begins to run, when the aggrieved employee knows
or reasonably should know of the employer’s decision not to
promote him or her.” (Italics added.) The court further concluded
that “when a defendant asserts a statute of limitations defense
against a FEHA failure to promote claim, the burden is on the
defendant to prove when the plaintiff knew or should have known
of the adverse promotion decision.” (Id. at p. 947.) Although
Baek’s claim is for retaliation, not harassment, the Supreme
Court’s analysis in Pollock “focus[ed] on when the promotion
denial occurred” (id. at p. 933), and we find the reasoning equally
applicable here.
The County does not cite any evidence showing that
promotion decisions were made in December 2018, or that Baek
was informed or should have known that she was not being
promoted in December 2018, the month she applied. The County
instead argues that Baek proffered no admissible evidence that
she filed her administrative complaint before the statutory
deadline. In a declaration, Baek contended that her December
2018 application for the DDA IV position made her eligible for
promotion between March 15, 2019, and March 14, 2020. The
trial court sustained the County’s objection to this portion of
Baek’s declaration and Baek fails to challenge this ruling in her
opening brief. We therefore agree that we may not consider that
evidence. (Villanueva v. City of Colton (2008) 160 Cal.App.4th
1188, 1196.) But the County bore the initial burden to
demonstrate that it has a defense to Baek’s claims, and
specifically, to establish “when [Baek] knew or should have
known of the adverse promotion decision.” (Pollock, supra, 11
17
Cal.5th at p. 947.) Evidence establishing only when Baek applied
for a promotion, without evidence regarding when decisions were
made, or when she knew or should have known she was not being
promoted, was insufficient to demonstrate the claim accrued in
December 2018, or to shift the burden to Baek to show a triable
issue of fact as to the timeliness of the claim.
The County’s reliance on Williams v. City of Belvedere
(1999) 72 Cal.App.4th 84, 90, is misplaced. In Williams, the
record clearly showed the defendant informed the plaintiff that
he would not be hired more than a year before the plaintiff filed
his administrative claim with the DFEH. The Court of Appeal
therefore held that the trial court correctly concluded the
defendant city was entitled to prevail. (Ibid.) The County cites
no comparable evidence here.
The County did not establish it was entitled to summary
adjudication of the retaliation cause of action on the ground that
Baek failed to timely file a DFEH complaint addressing her
failure to promote claim.
III. The County Did Not Demonstrate its Entitlement to
Summary Adjudication of Baek’s Retaliation Cause
of Action
A. Applicable legal principles
“[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 v.
18
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); Gov.
Code, § 12940, subd. (h).)
“Once a plaintiff establishes a prima face case, the
employer is required to offer a legitimate, nonretaliatory reason
for the adverse employment action. If the employer produces a
legitimate reason for the adverse employment action . . . the
burden shifts back to the employee to prove intentional
retaliation or discrimination. This is the three-part burden
shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411
U.S. 79[2], 802–805 [(McDonnell Douglas)] . . . adopted by
California for use in FEHA cases.” (Khoiny v. Dignity Health
(2022) 76 Cal.App.5th 390, 397–398.) When the burden is shifted
back to the plaintiff, he or she must present evidence that the
employer’s decision was motivated by prohibited discrimination.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 353, 357
(Guz); Horsford v. Board of Trustees of California State
University (2005) 132 Cal.App.4th 359, 377 [“A plaintiff’s burden
is . . . to produce evidence that, taken as a whole, permits a
rational inference that intentional discrimination was a
substantial motivating factor in the employer’s actions toward
the plaintiff.”].)
The McDonnell Douglas framework is modified on a motion
for summary judgment or summary adjudication. (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 861 (Serri); accord,
Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344
(Arteaga).) “ ‘[T]he employer, as the moving party, has the initial
burden to present admissible evidence showing either that one or
more elements of plaintiff’s prima facie case is lacking or that the
adverse employment action was based upon legitimate,
nondiscriminatory [or nonretaliatory] factors.’ [Citation.]” (Serri,
19
at p. 861.) It is enough at this step for the employer to proffer
“competent, admissible evidence” of its reasons, unrelated to bias
or retaliatory motive, for the adverse employment action. (Guz,
supra, 24 Cal.4th at p. 357.) The proffered reasons, “if
nondiscriminatory [or nonretaliatory] . . . need not necessarily
have been wise or correct.” (Id. at p. 358.) “If the employer meets
its initial burden, the burden shifts to the employee to
‘demonstrate a triable issue by producing substantial evidence
that the employer’s stated reasons were untrue or
pretextual . . . .’ ” (Serri, at p. 861.)
B. Adverse employment action
An adverse employment action under the FEHA includes,
but is “not limited to[,] ‘ultimate’ employment acts, such as
hiring, firing, demotion or failure to promote . . . .” (Jones v.
Department of Corrections & Rehabilitation (2007) 152
Cal.App.4th 1367, 1380.) “[T]he proper standard for defining an
adverse employment action is the ‘materiality’ test, a standard
that requires an employer’s adverse action to materially affect
the terms and conditions of employment . . . .” (Yanowitz, supra,
36 Cal.4th at p. 1036.) “ ‘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.” ’ . . . 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.)
20
The County demonstrated Baek could not establish a
prima facie case based on the alleged failure to provide Baek with
meaningful work commensurate with her skills and unique
experience; failure to investigate her 2019 and 2020 CPOE
complaints in a timely and meaningful manner; and failure to act
to protect her professional reputation. These alleged acts either
were not adverse employment actions, or Baek failed to show
there are triable issues of material fact.5
With respect to Baek’s claim that the County failed to
investigate her complaints in a timely and meaningful manner,
the County correctly observes that federal courts of appeals have
concluded that a failure to investigate is not an adverse
employment action. (Fincher v. Depository Trust and Clearing
Corp. (2d Cir. 2010) 604 F.3d 712, 721; Daniels v. United Parcel
Service, Inc. (10th Cir. 2012) 701 F.3d 620, 640 abrogated on
another ground in Muldrow v. City of St. Louis (2024) 601 U.S.
346; see also Chuang v. University of California Davis (9th Cir.
2000) 225 F.3d 1115, 1126 [failure to respond to grievances was
not adverse employment action].) We find these decisions
persuasive. (See, e.g., Guz, supra, 24 Cal.4th at p. 354;
Featherstone, supra, 10 Cal.App.5th at p. 1162.) Baek does not
seek to distinguish a failure to investigate from a failure to
timely and meaningfully investigate, or otherwise argue that
these cases are not persuasive.
5 In its motion for summary judgment, the County proffered
evidence and legal argument establishing that Baek had not
suffered any material adverse change to the terms and conditions
of her employment other than being rejected for promotion to
DDA IV. This was sufficient to shift the burden to Baek to show
a triable issue of material fact as to the alleged adverse actions
other than non-promotion.
21
A recent decision of our Supreme Court, Bailey v. San
Francisco District Attorney’s Office (2024) 16 Cal.5th 611 (Bailey),
is also instructive. In Bailey, the alleged unlawful conduct of the
employer, the San Francisco District Attorney’s Office, included
the failure to investigate a report that an employee called the
plaintiff a racial slur. (Id. at p. 621.) Upon learning of the
report, the personnel officer responsible for receiving complaints
refused to file a formal complaint, threatened the plaintiff,
criticized the plaintiff for telling others about the incident, and
attempted to intimidate the plaintiff in other ways. (Id. at
pp. 621–622, 624.)
Our Supreme Court concluded that the personnel officer’s
behavior rose to the level of an adverse employment action for
purposes of the plaintiff’s retaliation claim. (Bailey, supra, 16
Cal.5th at pp. 638–639.) The court emphasized that “the human
resources manager responsible for receiving complaints of
harassment and discrimination in the workplace” engaged in a
course of conduct that “began with the obstruction of [the
plaintiff’s] complaint.” (Id. at p. 639.) The court thus reasoned
that a “reasonable trier of fact could find that [the personnel
officer’s] course of conduct, in light of her position, effectively
sought to withdraw Bailey’s means of reporting and addressing
workplace discrimination and harassment.” (Ibid.)
However, the court clarified that its opinion “does not hold
that an employer’s mere inaction (e.g., the failure to investigate a
claim of racial harassment or take corrective action)—which
separately may bear on the employer’s liability for the
harassment itself—constitutes an act of retaliation.” (Bailey,
supra, 16 Cal.5th at p. 640.) “Had the City merely failed to
further investigate [the] alleged harassment following [plaintiff’s]
22
report of the same . . . , no actionable retaliation would appear.”
(Ibid.) It reiterated that the plaintiff’s claim was not based on
inaction, but “on an HR manager’s purposeful obstruction” and
“escalating threats.” (Ibid.)
Baek did not proffer or identify any similar evidence in
this case. There was no evidence that any person obstructed the
filing of her 2019 or 2020 complaints or otherwise threatened or
attempted to intimidate her. Instead, Baek’s evidence and
argument alleged only that the County failed to sufficiently
investigate. This did not create a triable issue of material fact as
to whether the failure to investigate itself was an adverse action.
Baek also cites no authority to support her contention that
a failure to prevent or redress reputational harm is an adverse
employment action. As discussed, Bailey indicates that “mere
inaction” does not constitute an adverse employment action for
purposes of a retaliation claim. (Bailey, supra, 16 Cal.5th at
p. 640.) Further, Baek proffered no evidence to create a triable
issue of fact as to whether the alleged failure to protect her
reputation materially affected the terms, conditions, or privileges
of her employment. (Yanowitz, supra, 36 Cal.4th at p. 1054.)
Aside from simply asserting that the County engaged in conduct
“which had the tendency to harm [her] professional reputation,”
Baek failed to even argue below or on appeal that the County’s
conduct materially affected her employment.
Similarly, even if being assigned work beneath one’s
experience level could constitute a material adverse change in
employment conditions, Baek failed to identify evidence sufficient
to create a dispute of material fact as to whether the work she
was assigned was not commensurate with her position as a DDA
III. For example, she proffered no evidence that her
23
responsibilities were inconsistent with those of others at the
same level. Baek refers to the County’s failure to transfer her to
the juvenile diversion program, but she provides no factual or
legal support for the claim that the failure to transfer her to a
preferred role was an adverse employment action, such as
evidence that the desired position offered superior benefits, pay,
or working conditions, or that she was otherwise entitled to a
transfer. (See Akers v. County of San Diego (2002) 95
Cal.App.4th 1441, 1459 [trial court committed instructional error
where modified instruction “left room for the jury to conclude that
a mere change in the conditions of employment (i.e., the denial of
a transfer with the same pay and benefits, or the annoyance and
embarrassment inherent in a negative performance review) was
enough to constitute an adverse employment action”].)
In sum, Baek failed to show the existence of a dispute of
material fact as to whether the County subjected her to adverse
employment actions by failing to provide her work commensurate
with her position, failing to meaningfully and timely investigate
her complaints, or failing to protect her reputation, whether
viewed separately or collectively.
The County, however, does not dispute that the failure to
promote is an adverse employment action. We therefore consider
whether the County demonstrated Baek could not establish the
remaining element of a prima facie case for retaliation based on
the failure to promote.
C. Causation
To shift the burden to Baek, the County was required to
show Baek could not establish a causal relationship between the
protected actions she took and the County’s failure to promote
her to DDA IV. The protected actions Baek identified are: (1) her
24
act of reporting Knapp’s alleged sexual harassment to Baeza;
(2) her June 5, 2019 e-mail asserting Schirn subjected her to
disparate treatment; (3) her 2019 CPOE complaint; (4) her 2020
CPOE complaints; (5) her participation in the June 11, 2019
investigative interview; (6) her participation in the November 19,
2020 investigative interview, and (7) her participation in the July
20, 2021 investigative interview.
In the trial court, the County contended: “[T]he alleged
protected activity in which Plaintiff purportedly engaged consists
solely of a 2014 complaint to her friend and fellow DDA, Joanne
Baeza, that a co-worker named Bob Knapp had touched her back
and arm for a few seconds. Aside from this, Plaintiff has not
engaged in any other protected activity during the relevant time
period. And although Plaintiff filed two County of Los Angeles
Policy of Equity . . . complaints in October 2020 . . . , these
complaints were filed after the alleged time period during which
she contends she was ‘eligible’ to be promoted to DDA IV as set
forth in her declaration.” (Fns. omitted.) The trial court
appeared to accept these arguments.
On appeal, Baek cites Light v. Department of Parks &
Recreation (2017) 14 Cal.App.5th 75, 91, for the proposition that
“[t]he requisite ‘causal link’ may be shown by the temporal
relationship between the protected activity and the adverse
employment action” and contends that “each of [the adverse
employment] acts arose in close temporal relationship to when
[Baek] complained about Brian Schirn.”
Baek does not contend on appeal that the failure to
promote “arose in close temporal relationship” to when she told
Baeza about Knapp’s alleged harassment in 2014 or that
causality may be inferred for any other reason. By failing to
25
address this issue on appeal, Baek has forfeited the argument
that any causal connection exists between her 2014 report to
Baeza and the failure to promote. (Los Angeles Unified School
Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492
[review of order granting summary judgment is limited to issues
which have been adequately raised and briefed].) Moreover, a
gap of more than four years is not a “close temporal relationship”
that would create a dispute of material fact as to causality. (See,
e.g., Clark County School Dist. v. Breeden (2001) 532 U.S. 268,
274, see id. at pp. 272–274 [20-month gap between protected
activity and transfer “suggest[ed], by itself, no causality at all”];
Cornwell v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d
1018, 1036 [trial court did not err in finding seven-month gap
between complaint and termination too much time for reasonable
jury to conclude plaintiff was terminated because of the
complaint].)
Further, even accepting for purposes of argument Baek’s
unsupported assertion that she was eligible for promotion until
March 14, 2020, protected activities occurring after she was no
longer eligible (i.e., her October 2020 CPOE complaints and
November 2020 and July 2021 interviews) could not possibly be
the reason she was not promoted to DDA IV. (Morgan v. Regents
of University of California (2000) 88 Cal.App.4th 52, 70 (Morgan)
[causal link requires evidence that the employer was aware
plaintiff engaged in protected activity].)
However, the County’s argument below did not address
Baek’s alleged protected activity in 2019.6 And, as discussed
6 In the reply in support of the motion for summary
judgment, the County noted only that an anonymous complaint
26
above, although the County contends that the failure to promote
occurred in December 2018, it proffered no evidence to support
that claim. It therefore did not establish, as it claims on appeal,
that the failure to promote Baek to DDA IV occurred before any
protected activity in 2019. A defendant’s burden on summary
judgment “is met when [it] presents affirmative evidence that
negates an essential element of the plaintiff’s claim. [Citation.]
A defendant may alternatively meet its burden by submitting
evidence ‘that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence’ supporting an essential
element of its claim.” (Santa Clara Valley Water Dist. v. Century
Indemnity Co. (2023) 89 Cal.App.5th 1016, 1034–1035; accord,
Serri, supra, 226 Cal.App.4th at p. 861 [“the employer, as the
moving party, has the initial burden to present admissible
evidence showing either that one or more elements of plaintiff’s
prima facie case is lacking”].) In the absence of evidence showing
that the promotion decision occurred before Baek’s protected
activities, at a minimum a factual dispute remains as to whether
the decision not to promote Baek took place “ ‘within a relatively
short time’ ” after her June 2019 e-mail to Schirn, her 2019
about Schirn’s treatment of Baek was filed with CPOE on June
11, 2019. The County asserted that when interviewed “in
connection with” the complaint, Baek alleged that Schirn did not
secure her an office in Long Beach and that another DDA was
watching her without any basis to do so. However, Baek said she
did not know why Schirn treated her differently. The County
argued this was not protected activity as a matter of law. It did
not mention Baek’s June 2019 e-mail accusing Schirn of
subjecting her to disparate treatment or the CPOE complaint
Baek filed in October 2019.
27
complaint, or the June 2019 interview. (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)
The County further argues Baek cannot prove causation
because she failed to establish that the decisionmakers were
aware of her protected actions at the time they made the decision
not to promote her. Yet, as the California Supreme Court
explained in Aguilar, in California, a defendant moving for
summary judgment must present evidence. A defendant cannot
prevail by “simply point[ing] out that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence.”
(Aguilar, supra, 25 Cal.4th at p. 854, fn. omitted.) “Whereas,
under federal law, ‘pointing out through argument’ [citation] may
be sufficient . . ., under state law, it is not.” (Id. at p. 855.)
Thus, in Morgan, for example, the Court of Appeal
concluded the plaintiff could not establish a causal link where the
relevant decisionmakers submitted declarations affirmatively
stating they were unaware of the employee’s past complaints
when they decided not to rehire him. (Morgan, supra, 88
Cal.App.4th at p. 73; see also Choochagi v. Barracuda Networks,
Inc. (2020) 60 Cal.App.5th 444, 460 [affirming summary
adjudication of FEHA retaliation claim where employer
“demonstrated that the individuals responsible for making the
decision to terminate [plaintiff’s] employment . . . were not aware
of [his] HR complaint”].) The County has not made a comparable
showing or presented evidence demonstrating Baek could not
reasonably obtain evidence on these points.
Accordingly, the County did not meet its initial burden to
demonstrate Baek could not establish the element of causation as
28
related to her protected activities in 2019 and the failure to
promote her to DDA IV.
D. Legitimate, nonretaliatory reason for the
promotion decision
Because we review the trial court’s decision, not its reasons
or rationales, we consider whether the grant of summary
judgment was nevertheless appropriate because the County
established it had a legitimate, nonretaliatory reason for not
promoting Baek and Baek failed to demonstrate pretext.
On appeal, the County contends that it did not promote
Baek because it promoted more qualified individuals. Although
there is evidence in the record to support this reason, the County
did not assert this contention below.7 As a result, the County did
not submit evidence showing that Baek was in fact not promoted
to DDA IV because she was deemed unqualified, for example, or
that there were limited DDA IV positions available and they were
filled by more qualified applicants. The County’s motion did not
address the second and third steps of the McDonnell Douglas
framework with respect to the failure to promote claim and did
not present the nonretaliatory reason on which it now relies.
Respondents, like appellants, are generally precluded from
7 The majority of applicants for the DDA IV role who scored
in the same band as Baek (128 of 242, or approximately 53
percent) were not selected for promotion. Baek completed 11
felony jury trials and received no credits in her application for
jury trial experience, where the maximum number of credits was
30. Her most recent felony jury trial experience was from 1997,
more than 20 years before she applied for the promotion to DDA
IV. Of the 106 individuals the County promoted from DDA III to
DDA IV between 2019 and 2022, 104 had more trial experience
than Baek.
29
raising arguments for the first time on appeal. (McKee v. Orange
Unified School Dist. (2003) 110 Cal.App.4th 1310, 1320.)
Moreover, a defendant must “produce[ ] substantial
evidence of a legitimate, non[retaliatory] reason for the adverse
employment action” to defeat the presumption of discrimination
created by a plaintiff’s prima facie case. (Morgan, supra, 88
Cal.App.4th at p. 68.) In Morgan, for example, the defendant met
its burden at the second stage of the McDonnell Douglas inquiry
where “each of the decision makers who decided not to hire
appellant . . . explained in a declaration under penalty of perjury
specific job-related reasons why appellant was not qualified for
the position at issue and why the candidate selected for the
position was better qualified.” (Id. at pp. 74–75.)8
Here, even on appeal, the County does not identify
competent, admissible evidence of the reasons that the
individuals responsible for the promotion decision chose not to
promote Baek. Although the reasons identified by the County on
appeal are plausible, it is not “enough for the employer, in a writ
petition or on appeal, to cobble together after-the-fact possible
8 See also Arteaga, supra, 163 Cal.App.4th at page 352
[armored transportation company’s letter of termination stating
it “lost confidence” in plaintiff because he was the only person to
service ATMs with cash shortages and because of his “ ‘overall
performance’ ” established legitimate, nondiscriminatory reason
for employee’s discharge]; Serri, supra, 226 Cal.App.4th at
pages 846 and 862 [defendant university carried its burden of
establishing a legitimate, nondiscriminatory reason for its
decision to terminate plaintiff where the record contained
evidence that the university vice-president made the decision and
hand-delivered a letter describing the reasons for the
termination].
30
nondiscriminatory [or nonretaliatory] reasons” for the adverse
employment decision. (Department of Corrections &
Rehabilitation v. State Personnel Bd. (2022) 74 Cal.App.5th 908,
930 (State Personnel Bd.).)9 “While the stage-two burden of
production is not onerous, the employer must clearly state the
actual nondiscriminatory [or nonretaliatory] reason for the
challenged conduct.” (Ibid.) The County did not proffer evidence
to explain the decision making process or criteria for the DDA IV
position, or evidence of the reasons why Baek in particular was
not promoted to DDA IV. The County thus did not meet its
burden to show that the failure to promote Baek to DDA IV was
the result of legitimate, nonretaliatory factors. (Serri, supra, 226
Cal.App.4th at p. 861.) It therefore was not entitled to summary
adjudication of the retaliation cause of action.
IV. The County Is Not Entitled to Summary Adjudication
of Baek’s Claim for Failure to Prevent Retaliation
Finally, Baek asserts the County violated Government
Code section 12940, subdivision (k), which makes it unlawful
“[f]or an employer . . . to fail to take all reasonable steps
necessary to prevent discrimination and harassment from
occurring.”
A claim under Government Code section 12940,
subdivision (k) has three elements: (1) the plaintiff was subjected
to discrimination, retaliation, or harassment; (2) the defendant
9 State Personnel Bd., supra, 74 Cal.App.5th 908, was an
appeal from an administrative decision by the State Personnel
Board (id. at p. 913), and was subject to a more deferential
standard of review than a motion for summary judgment or
adjudication. (Id. at p. 922.) Nevertheless, its discussion of the
showing a defendant must generally make at the second stage of
the McDonnell Douglas inquiry is instructive.
31
failed to take all reasonable steps to prevent it; and (3) this
failure caused plaintiff to suffer injury, damage, loss or harm.
(Caldera v. Department of Corrections & Rehabilitation (2018) 25
Cal.App.5th 31, 43–44.) “[R]etaliation is a form of discrimination
actionable under [Government Code] section 12940,
subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water &
Power (2006) 144 Cal.App.4th 1216, 1240, disapproved on other
grounds in Jones v. Lodge at Torrey Pines Partnership (2008) 42
Cal.4th 1158, 1162.) “An actionable claim under [Government
Code] section 12940, subdivision (k) is dependent on a claim of
actual discrimination: ‘Employers should not be held liable to
employees for failure to take necessary steps to prevent such
conduct, except where the actions took place and were not
prevented.’ [Citation.]” (Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1021.) In other words, when a
plaintiff cannot establish a violation of the FEHA based on
certain conduct, the employer as a matter of law cannot be held
responsible for failing to prevent that conduct under
[Government Code] section 12940, subdivision (k). (Featherstone,
supra, 10 Cal.App.5th at p. 1166.)
The County’s motion sought summary adjudication of the
Government Code section 12940, subdivision (k) cause of action
on the sole basis that there was no retaliation, discrimination, or
harassment. While the cause of action was not viable to the
extent it was based on an alleged failure to prevent
discrimination or harassment, the County did not establish the
claim failed to the extent it asserted a failure to prevent
retaliation. In light of our conclusions regarding Baek’s
retaliation cause of action, summary adjudication must be
32
reversed of the failure to prevent cause of action. (See Nazir,
supra, 178 Cal.App.4th at p. 288.)
DISPOSITION
The judgment is reversed. The matter is remanded with
directions that the trial court vacate its order granting the
County’s motion for summary judgment. The court is to enter a
new order denying summary adjudication of the causes of action
for retaliation and failure to prevent retaliation. The parties
shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
33