Opinion

Schutten v. Board of Trustees of the Cal. State University CA6

Court
California Court of Appeal
Filed
Dec 9, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 37.4%

The opinion

Filed 12/9/25 Schutten v. Board of Trustees of the Cal. State University CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MARY SCHUTTEN, H052561

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 22CV399032)

v.

BOARD OF TRUSTEES OF THE

CALIFORNIA STATE UNIVERSITY,

ET AL.,

Defendants and Respondents.

In 2015, Mary Schutten was hired as a dean at San José State University. Three

years later, a new interim provost removed Schutten from this position. Although

Schutten was allowed to “retreat” to the faculty as a full professor, she instead obtained

an appointment as provost at another university, and in light of that appointment, her

employment at San José State University was terminated.

In 2021, Schutten sued the Board of Trustees of the California State University

(CSU), albeit under the wrong name. She asserted age and gender discrimination,

retaliation, hostile work environment, and other claims. After discovery, CSU moved for

summary judgment, which the trial court granted.

Schutten appeals, arguing that she raised triable issues concerning age (but not

gender) discrimination as well as retaliation, hostile work environment, and wrongful

termination. As explained below, we disagree and therefore affirm the judgment.

I. BACKGROUND

As this appeal is from a summary judgment order, we take the facts below from

the trial court record, resolving conflicts in the evidence and drawing reasonable

inferences in favor of Schutten as the party opposing summary judgment. (See, e.g.,

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)

A. Schutten’s Employment as Dean

Schutten was born in 1954. In March 2015, at the age of 61, she was hired to be

the Dean of the College of Applied Arts and Sciences at San José State University. As

this was a management position, it carried “no commitment of permanent status.”

However, if the university opted not to retain her as dean, Schutten was given the right to

“retreat” to a tenured position as a full professor in the Department of Kinesiology.

When Schutten was hired, the president of the university was Mohammad

Qayoumi, but he left in August 2015, the month after Schutten began working. Qayoumi

was replaced first by an interim president and later by Mary Papazian, who served as

president from July 2016 until 2021. Schutten reported to the provost, who was Andrew

Feinstein, from Schutten’s hiring until the summer of 2018. That summer, Dr. Joan Ficke

became the interim provost.

As dean, Schutten received positive performance evaluations. Indeed, her

August 2018 evaluation, which Ficke signed, recognized Schutten as the “(co-)senior-

most dean” at the college, and it asked Schutten to “provide her leadership, insight, and

counsel” to Ficke and to “take a significant role in mentoring our incoming dean of

education.”

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However, in December 2018, Ficke removed Schutten as dean effective

January 1, 2019 and placed Schutten on paid administrative leave until August 19, 2019,

at which point she was to retreat to the Department of Kinesiology.

B. The Emeritus Status Request and Removal of Schutten as Dean

Schutten’s removal was precipitated by a retiring faculty member’s request for

emeritus status. A faculty member in the School of Information had to leave the

university for medical reasons and the director of that school requested emeritus status on

his behalf, apparently so that he could continue using university e-mail. Believing that all

tenured faculty members had the right to emeritus status upon retirement, Schutten filed

the appropriate paperwork.

Ficke denied the request. According to deposition testimony presented by

Schutten, Ficke told Joanne Wright, the Senior Director of Academic Relations, that the

request was denied because the faculty member was a lecturer rather than a professor.

However, Schutten herself testified that Ficke did not want to confer emeritus status on

anyone who had not been at the university for at least 10 years.

Whatever the rationale, Schutten questioned Ficke’s decision. First, Schutten

asked Ficke for clarification of the decision, but Ficke stood firm on it. Second, Schutten

contacted Wright and an unnamed university attorney to confirm Schutten’s

understanding of the university’s emeritus policy. In her deposition, Schutten explained

that she was being “proactive” and trying to ensure that there would be no grievance for

violating established policies.

Schutten’s actions upset Ficke, who felt that Schutten was going behind her back.

Ficke told Wright that she felt Schutten was questioning her authority and did not feel

that she could continue to work with Schutten as dean. According to Schutten, Ficke

then “punish[ed]” her by removing her as dean.

On December 31, 2018, approximately two weeks after Ficke formally notified

Schutten of her removal, Schutten wrote Ficke and President Papazian seeking

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reconsideration. In addition to listing her accomplishments as dean, Schutten addressed

the “incident . . . named as a motivation for this decision,” explaining that she merely

asked for advice on what would happen if an academic policy was not followed “so that I

could manage the faculty member in the best way possible.” Ficke denied Schutten’s

request. Schutten again sought reconsideration, this time from President Papazian alone,

reiterating that in the “incident . . . named as a motivation” for her removal she was

seeking advice so that she could manage the faculty member in the best way possible.

The president denied this request.

Schutten was replaced by an interim dean and then a new dean, both of whom

were women in their 50s.

C. Termination

Concerned about the substantially lower salary of a professor in light of the high

cost of living in the Bay Area, Schutten applied for positions elsewhere. On

May 1, 2019, she accepted an appointment as provost at Central Michigan University

(with a nearly $100,000 increase in salary).

The next day, Schutten wrote President Papazian to propose that the university

retain her as a faculty member with benefits but no salary until July 2020, so that her

pension could vest. Although Schutten did not mention her appointment at Central

Michigan University, Papazian learned of it and in a May 13, 2019 letter congratulated

Schutten on the new position. However, Papazian denied Schutten’s request to retain her

on the CSU faculty. In so doing, Papazian noted that the arrangement Schutten proposed

likely would not help her pension vest because CalPERS grants service credit only for

active employment.

D. Subsequent Applications for CSU Employment

Schutten worked as the provost at Central Michigan University until

January 1, 2022, when she became a professor there. During this period, Schutten

applied for positions at eight CSU institutions besides San José State University,

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including chief of staff to the provost at Chico State University. After Schutten

interviewed for this position, a human resources employee at Chico State University

contacted Wright to try to understand why Schutten would be interested in being a chief

of staff to the provost after being a provost herself. Schutten was not selected for a

second interview, but the human resources employee testified that she did not rely on any

information from Wright in making that decision; instead, the university president chose

candidates with experience at Chico State University or in Sacramento. All of Schutten’s

applications to the CSU system have been denied.

E. The Proceedings Below

In June 2021, Schutten sued, claiming age and gender discrimination under the

California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),

retaliation under FEHA, harassment and failure to prevent harassment under FEHA,

wrongful termination, and unpaid wages. (Subsequent undesignated statutory references

are to the Government Code.) Schutten named California State University and San José

State University as defendants. Because San José State University is not a legal entity

separate from California State University, and California State University acts through its

board of trustees, CSU moved to amend its answer to name the Board of Trustees of the

California State University as the sole defendant, and over Schutten’s opposition the trial

court granted the motion. The trial court also granted CSU’s motion to change venue,

from Los Angeles County, where Schutten filed, to Santa Clara County, where she had

worked for CSU.

In February 2024, after the parties conducted discovery, CSU moved for summary

judgment. In so doing, CSU argued that Schutten’s superiors had legitimate, non-

discriminatory reasons for removing her as dean (her disagreement with Ficke over the

emeritus policy) and terminating her employment (her appointment as provost at another

university) and that Schutten had no evidence that these rationales were pretextual. CSU

also argued that Schutten failed to present any evidence that she engaged in protected

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activity upon which a retaliation claim could be based or that she suffered conditions so

severe and pervasive as to create a hostile work environment. Finally, CSU argued that

Schutten’s wrongful termination claim was dependent on her other claims and failed

along with them, and that she failed to present any evidence of unpaid wages.

After a hearing, the transcript of which Schutten chose not to include in the record

on appeal, the trial court granted summary judgment. The court determined that CSU had

presented legitimate, nondiscriminatory reasons both for removing Schutten as dean and

for terminating her, and that Schutten had failed to present evidence raising a triable issue

concerning either pretext or discriminatory motive. The trial court also ruled that

Schutten was barred from claiming that CSU discriminated against her in denying her

subsequent job applications because the complaint did not include any allegations

concerning those applications.

In addition, the trial court ruled that Schutten had failed to raise a triable issue

concerning her other claims. Specifically, the court concluded that Schutten’s retaliation

claim failed because she had not presented evidence that CSU retaliated against her due

to any protected conduct; indeed, the trial court observed Schutten had not presented

evidence that Ficke, in denying the request for emeritus status for the retiring faculty

member, even considered the member’s age. The court also concluded that Schutten’s

harassment claim failed because she had not presented evidence sufficient to show a

hostile work environment, and it concluded that Schutten’s improper termination claim

was dependent on her FEHA claims and therefore failed along with those claims.

Finally, the trial court rejected Schutten’s unpaid wages claim because Schutten failed to

oppose CSU’s arguments concerning that claim.

Schutten filed a timely notice of appeal.

II. DISCUSSION

Schutten contends that the trial court erred in granting CSU summary judgment

because she presented evidence raising triable issues concerning all of her claims. Before

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addressing these contentions, we briefly review the standards governing summary

judgment.

A. Summary Judgments

Summary judgment is appropriate when “there is no triable issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.”

(Code Civ. Proc., § 437c, subd. (c).) A party moving for summary judgment bears the

initial burden of demonstrating both that there is no triable issue of material fact and that

it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850 (Aguilar).) To satisfy this burden, a defendant moving for summary

judgment must demonstrate that the plaintiff’s causes of action lack merit either because

one or more of their elements cannot be established or because there is a complete

defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) If the defendant

makes this initial showing, the burden shifts to the plaintiff to show a triable issue of

material fact concerning the elements of the claims or defenses to them. (Code Civ.

Proc., § 437c, subd. (p)(2); Aguilar, at p. 849.)

In determining whether the parties have met their respective burdens, courts

generally begin with the complaint because “ ‘[t]he pleadings delimit the issues to be

considered on a motion for summary judgment.’ ” (Laabs v. City of Victorville (2008)

163 Cal.App.4th 1242, 1253 (Laabs).) Next, courts “ ‘consider[] all the evidence set

forth in the moving and opposition papers except that to which objections were made and

sustained.’ ” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026,

1035.) Evidence raises a triable issue concerning a material fact if it “would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion” on a claim raised in the pleadings. (Aguilar, supra, 25 Cal.4th at p. 850.) “A

party cannot avoid summary judgment by asserting facts based on mere speculation and

conjecture, but instead must produce admissible evidence raising a triable issue of fact.”

(LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

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On appeal, we review summary judgment orders de novo, applying the same rules

and standards that govern a trial court’s evaluation of summary judgment motions. (See

e.g., Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311, 321). In so doing, “[w]e

liberally construe the evidence in support of the party opposing summary judgment and

resolve doubts concerning the evidence in favor of that party.” (Yanowitz, 36 Cal.4th at

p. 1037.)

B. Discrimination

Schutten’s first cause of action is for discrimination under FEHA. Although the

complaint alleges discrimination based on age, gender, and “related characteristics,” on

appeal Schutten focuses solely on age discrimination. As explained below, we conclude

that CSU is entitled to judgment on this claim because it presented evidence of

legitimate, nondiscriminatory reasons for removing Schutten as dean and for terminating

her employment altogether, and because Schutten failed to raise a triable issue

concerning either pretext or discriminatory motive.

1. Applicable Law

FEHA makes it unlawful for an employer to take an adverse employment action

against an employee because of, among other things, the employee’s age or gender.

(§ 12940, subd. (a).) In evaluating discrimination claims under FEHA, California courts

look to federal law and apply the three-stage, burden-shifting approach established in

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Harris v. City of Santa

Monica (2013) 56 Cal.4th 203, 214 (Harris); Guz v. Bechtel National, Inc. (2000) 24

Cal.4th 317, 354 (Guz); Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860

(Serri).)

Under this approach, a plaintiff claiming discrimination bears the initial burden of

establishing a prima facie case of discrimination. (Harris, supra, 56 Cal.4th at p. 214;

Guz, supra, 24 Cal.4th at pp. 354-355.) If this burden is satisfied, a presumption of

discrimination arises, and the burden shifts to the employer to rebut the presumption by

8

offering a legitimate, nondiscriminatory reason for the challenged action. (Harris, at

p. 214; Guz, at pp. 355-356.) Finally, if the employer offers such a reason, the

presumption of discrimination disappears, and the burden shifts back to the plaintiff to

present evidence that the reason proffered by the employer was a pretext for

discrimination or to present other evidence of discriminatory motive. (Harris, at pp. 214-

215; Guz, at p. 356.)

On summary judgment, the burdens shift. When an employer moves for summary

judgment on a discrimination claim, it bears the initial burden of demonstrating that no

unlawful discrimination occurred, either by presenting evidence that an element of the

prima facie case is lacking, or that the employer acted for a legitimate, nondiscriminatory

reason. (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 685

(Wawrzenski); Martin v. Board of Trustees of California State University (2023) 97

Cal.App.5th 149, 162 (Martin).) In addition, when an employer presents evidence that it

acted for a legitimate, nondiscriminatory reason, it is entitled to summary judgment if, in

light of that reason, “the evidence as a whole is insufficient to permit a rational inference

that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361,

fn. omitted.)

2. Analysis

Schutten asserts that the CSU failed to satisfy its initial burden on summary

judgment because the only evidence that it presented was “a deed of trust, several

corporate formation documents, and a declaration from one of Respondent’s employees.”

This assertion appears to be inadvertently recycled from a different case because CSU did

not present a deed of trust or corporate formation documents in support of its motion for

summary judgment.* Instead, CSU presented evidence that Schutten was removed from

* Schutten’s assertion that the trial court impermissibly made findings of fact is

equally unfounded. As the very pages cited by Schutten show, far from making findings

of fact, the trial court repeatedly concluded that Schutten “fail[ed] to demonstrate the

existence of a triable issue of material fact.”

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the position of dean and later terminated for legitimate, non-discriminatory reasons,

which plainly satisfied CSU’s initial burden on summary judgment. (Wawrzenski, supra,

106 Cal.App.5th at p. 685; Martin, supra, 97 Cal.App.5th at p. 162.) In addition,

Schutten failed to present evidence showing that these reasons were pretextual or to

present other evidence of a discriminatory motive. We therefore conclude that Schutten

failed to raise a triable issue concerning discrimination, and CSU is entitled to judgment

on her discrimination claim.

a. Removal

CSU presented evidence that Schutten was removed because of insubordination,

which is a legitimate, non-discriminatory reason. (See, e.g., Hersant v. Department of

Social Services (1997) 57 Cal.App.4th 997, 1006.) Far from showing that this rationale

was pretextual, Schutten provided additional evidence that CSU acted for this reason. In

addition, Schutten failed to present other evidence that her removal was motivated by

discriminatory animus.

In moving for summary judgment, CSU presented several pages from Schutten’s

deposition in which she testified that her removal was prompted by a disagreement with

Interim Provost Ficke over the denial of a retiring faculty member’s request for emeritus

status and, specifically, Schutten’s continued questioning of Ficke’s decision. Rather

than submit evidence that this rationale was pretextual, Schutten presented excerpts from

her deposition reinforcing the rationale. In those excerpts, Schutten testified that, after

Ficke denied the emeritus request, she (Schutten) asked the provost for clarification, and

when the provost stood firm, Schutten consulted a lawyer and the director of academic

relations concerning the faculty member’s rights. These actions, Schutten continued,

upset Ficke, who then punished her by removing her as dean.

Schutten also presented other evidence confirming that Ficke removed her for

insubordination. For example, Schutten submitted deposition testimony from Wright, the

director of academic relations, who testified that Ficke believed Schutten was

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“questioning her authority” and, as a result, Ficke “didn’t feel that she could continue

working [Schutten] as Dean.” Schutten’s letters to Ficke and to the president of the

university seeking reconsideration of her removal also confirm that Schutten was

removed because of her perceived insubordination. In both Schutten acknowledged that

the “named” motivation for her removal was her request for advice concerning Ficke’s

denial of emeritus status, which Schutten tried to justify by explaining that she was

seeking information regarding the consequences of Ficke’s decision in order to “manage

the faculty member in the best way possible.” Thus, far from presenting evidence that

the legitimate, non-discriminatory rationale offered by CSU for her removal was

pretextual, Schutten presented evidence confirming that she was removed for

insubordination.

On appeal, Schutten nonetheless asserts that the insubordination rationale was

pretextual. In so doing, Schutten notes that four types of evidence may be used to show

pretext: (1) comparative evidence, (2) statistics, (3) failure to follow ordinary policies and

procedures, and (4) direct evidence. However, Schutten does not point to any

comparative evidence, statistics, or applicable procedures. (Although Schutten asserts

the university’s collective bargaining agreement entitled the retiring employee to

emeritus status, the trial court sustained CSU’s objection to the evidence of the policy

submitted by Schutten, and Schutten has not appealed that ruling.) Nor does Schutten

present any direct evidence that Ficke removed her because of her age or general hostility

to older employees.

Citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467 (Flait),

Schutten also asserts that pretext can be inferred from “indirect evidence” such as an

employee’s job performance before termination. However, Flait did not find a triable

issue solely because of the plaintiff’s job performance. Instead, Flait found that the

plaintiff’s job performance undermined the non-discriminatory reason proffered for

terminating him. In Flait, the employer asserted that it fired a sales representative

11

because he was too loyal to his customers and did not insist that they carry a balanced

representation of the employer’s products. (Id. at p. 479.) However, the employer

conceded that it alone accepted customer orders and therefore controlled whether

customers carried a balanced representation. (Ibid.) In addition, while the employer

asserted that it had to reject many of the representative’s orders for not requiring a

balanced representation, that assertion was belied by the increases in the representative’s

sales in the year before his termination. (Ibid.) By contrast, here, the rationale offered

for removing Schutten as dean—her insubordination in the emeritus dispute—has nothing

to do with Schutten’s performance of her duties, and therefore Schutten’s admittedly

excellent performance does not cast doubt on the proffered rationale for her removal.

Moore v. Regents of University of California (2016) 248 Cal.App.4th 216 does not

help Schutten. In Moore, a laid off employee sued for disability discrimination and

failure to accommodate. (Id. at p. 230.) Although the employer contended that the

employee was laid off due to a restructuring that eliminated her position, the employee

presented evidence that the employer in fact began eliminating her duties before the

restructuring and that in the restructuring it failed to follow its own policies and

procedures in laying her off, rather than laying off a more junior employee with similar

skills, or permitting her to seek reassignment or transfer. (Id. at pp. 238-240.) In

addition, the employee presented direct evidence that she was terminated because of

concerns that her perceived disability could become a liability for the employer. (Id. at

pp. 240-241.) By contrast, here, there is no evidence that the proffered rationale was

false, nor any direct evidence of discriminatory motive.

Schutten does assert that she presented direct evidence of discriminatory motive.

In particular, Schutten contends that “[a] reasonable trier of fact could conclude from the

evidence that Respondent had a discriminatory motive in subjecting Appellant to adverse

employment actions, including demotions and wrongful termination.” However, while

Schutten cites more than 22 passages from the record, she fails to describe what evidence

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they contain, much less explain how they show that Ficke decided not to retain Schutten

because of Schutten’s age. Such unexplained conclusory assertions are “wholly

inadequate to tender a basis for relief on appeal.” (Osgood v. Landon (2005) 127

Cal.App.4th 425, 435); see also Delta Stewardship Council Cases (2020) 48 Cal.App.5th

1014, 1075 (Delta Stewardship Cases) [“When an appellant . . . fails to support [a point]

with reasoned argument and citations to authority, we treat the point as forfeited.”].)

In any event, Schutten has cited little evidence of age-related animus directed at

her and no evidence at all that she was removed as dean because of her age. Schutten

asserts that she was “subjected to pervasive harassment through negative comments about

her age” and the age of co-employees. However, when asked whether any comments

about age were directed at her, Schutten responded “[n]o . . . [u]nless you want to

take . . . being a senior member in my second or third year, which is likely true.” These

comments were made in her evaluations, where she was described as the “(co-)senior

most dean at the university.” But, far from denigrating Schutten because of her seniority,

these evaluations asked Schutten, in light of this seniority, to “provide her leadership,

insight, and counsel to the incoming interim provost” and encouraged her to mentor new

deans.

Schutten also testified that she engaged in some “banter” about her

“old, . . . aching bones.” However, this banter was not with Interim Provost Ficke, who

made the decision to remove Schutten as dean. Instead, the banter was with Andrew

Feinstein, Ficke’s predecessor, and there is no evidence that Feinstein had any

involvement in the removal decision. In addition, the banter did not concern Schutten’s

job performance. Instead, Feinstein, who was about 50 at the time, would comment

about how he was physically active and liked to boogie board, and Schutten, who was a

former college swim coach and certified lifeguard, would respond that she probably

would be the one rescuing him.

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Schutten also noted some comments made about two professors in their 70s being

“too old and ineffective,” mockery of a 90-year-old music director, and a comment by

former president Qayoumi about the age of a dean. However, none of the negative

comments are attributed to either Ficke, who made the decision to remove Schutten, or

President Papazian, who upheld that decision, and there is no evidence that anyone who

made the comments was involved in the decision. Consequently, these comments fail to

raise a triable issue whether Schutten was removed because of her age. (See, e.g., Arnold

v. Dignity health (2020) 53 Cal.App.5th 412, 427-428; Serri, supra, 226 Cal.App.4th at

pp. 867-868; Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 809-

810; see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 [“stray remarks may not

have strong probative value when viewed in isolation”].)

b. Termination

CSU offered a legitimate, non-discriminatory reason for terminating Schutten

when it informed her of the termination: Schutten had “accepted a position at another

institution,” namely, provost at Central Michigan University. In the trial court, Schutten

presented testimony that four employees were permitted to teach at SJSU while holding

jobs elsewhere, one as a professor at another university and three as nurses working in

hospitals. Because these employees, unlike Schutten under her proposed plan, were

working at CSU, their situations were plainly distinguishable, and therefore their

treatment does not suggest that the rationale for terminating Schutten was false.

Accordingly, the trial court properly concluded that Schutten failed to present any

evidence undermining CSU’s explanation for Schutten’s termination. Nor does Schutten

point to any other evidence suggesting that the reason offered for terminating her was

pretextual. As a consequence, we must conclude that the trial court’s ruling was correct.

(See, e.g., Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).)

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c. Interference with Rehiring

Schutten contends that SJSU discriminated against her by preventing her from

being rehired into the CSU system and thereby vesting her pension. The trial court

rejected this argument because the complaint does not contain allegations concerning the

failure to rehire Schutten, and a plaintiff opposing summary judgment “ ‘cannot bring up

new, unpleaded issues.’ ” (Laabs, supra, 163 Cal.App.4th at p. 1253.) Here again,

Schutten does not challenge the trial court’s ruling in her briefing on appeal.

We therefore conclude that CSU is entitled to summary judgment on Schutten’s

discrimination claim.

C. Retaliation

In her second cause of action, Schutten claimed that she was terminated because

she protested “unlawful []conduct.” On summary judgment, the trial court assumed that

the alleged unlawful conduct was Ficke’s denial of emeritus status for the retiring faculty

member. The trial court granted summary judgment to CSU on this claim because

Schutten failed to present any evidence that Ficke considered the faculty member’s age in

denying him emeritus status. As explained below, we agree that Schutten failed to raise a

triable issue concerning retaliation.

1. Applicable Law

FEHA makes it unlawful for an employer “ ‘to discharge, expel, or otherwise

discriminate against any person because the person has opposed any practices forbidden”

under the statute. (§ 12940, subd. (h).) To a establish a prima facie case of retaliation

under FEHA, a plaintiff must satisfy three requirements: “ ‘(1) [H]e 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.’ ” (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 460.)

An employee engages in “protected activity” for purposes of the first requirement

if she “oppose[s] any practices forbidden under this part [FEHA],” or she testifies or

15

assists in any proceeding under the FEHA. (§ 12940, subd. (h); see Yanowitz, supra, 36

Cal.4th at p. 1042.) In addition, “ ‘[p]rotected activity’ ” under FEHA includes

“ ‘oppos[ing] conduct that the employee reasonably and in good faith believes to be

discriminatory, whether or not the challenged conduct is ultimately found to violate the

FEHA.’ ” (Wawrzenski, supra, 106 Cal.App.5th at p. 700.)

2. Analysis

As the trial court recognized, Schutten has not made out a prima facie case of

retaliation. Schutten presented evidence that she was removed as dean because she

questioned Ficke’s denial of emeritus status to a retiring faculty member. However, she

did not present any evidence that this decision violated FEHA and therefore failed to

raise a triable issue whether she “opposed any practices forbidden” under FEHA.

(§ 12940, subd. (h).)

In opposing denial of emeritus status to the retiring faculty member, Schutten did

not oppose a practice forbidden by FEHA. FEHA prohibits employers from

discriminating against employees because of race, gender, religion, national origin, and a

number of other characteristics. (§ 12940, subd. (a).) It does not prohibit universities

from denying emeritus status to faculty, whether or not doing so would violate an

agreement, academic policy, or even a legal requirement not enumerated by FEHA. (See

Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 723 [noting that FEHA

does not prohibit refusal to participate in activities that violate any state, federal, or local

statues, rules or regulations].)

In addition, there was no evidence that the retiring faculty member was denied

emeritus status because of his age. Schutten testified that the faculty member had to step

away from the university for “a medical reason,” and that Ficke denied the request for

emeritus status because the faculty member had not been at the university for ten years.

Schutten also presented testimony from Wright that Ficke denied the emeritus request

because the faculty member was a lecturer rather than a professor. However, as the trial

16

court recognized, Schutten presented no evidence that Ficke denied the retiring faculty

member emeritus status because of his age. Indeed, Schutten did not even present

evidence of the age of the faculty member in question, and Schutten’s testimony that the

member had been at CSU for less than 10 years suggests that he may not have been over

40 years old.

At oral argument, Schutten asserted that it may be inferred that the faculty member

at issue was older because he was retiring and seeking emeritus status. It is well-settled

that “ ‘ “[a]n appellate court is not required to consider any point made for the first time

at oral argument” ’ ” and that any such points generally “ ‘ “will be deemed waived.” ’ ”

(People v. Arrendondo (2019) 8 Cal.5th 694, 710, fn. 5; see Ramirez v. Charter

Communications, Inc. (2024) 16 Cal.5th 478, 500.) In addition, Schutten’s inference is

questionable. “[E]meritus” means “holding after retirement (as from professional or

academic office) an honorary title corresponding to that held last during active service”

(Webster’s 3d New Internat. Dict. (1993) p. 741, col. 2; see also American Heritage Dict.

(5th ed. 2011) p. 583, col. 2 [“Retired but retaining an honorary title corresponding to

that held immediately before retirement”]), and “retirement” in turn means “withdrawal

from office, active service, or business” (Webster’s 3d New Internat. Dict., supra,

p. 1939, col. 2; see also American Heritage Dict., supra, p. 1499, col. 1 [“Withdrawal

from one’s occupation or position, especially upon reaching a certain age”]). It is true

that retirement is usually taken due to age (American Heritage Dict., supra, p. 1499,

col. 1), but it also can be taken due to illness or disability (see Black’s Law Dictionary

(11th ed. 2019) p. 1574, col. 1 [defining retirement to mean “[t]ermination of one’s own

employment or career, esp., upon reaching a certain age or for health reasons” (italics

added))—which is clearly a possibility here because the faculty member in question had

been at the university for less than ten years and left because of “a medical reason.” As a

consequence, it cannot be inferred that the faculty member at issue in this case was older

just because he retired and a colleague sought emeritus status on his behalf.

17

We therefore conclude that Schutten has failed to show that Ficke’s denial of

emeritus status was a practice forbidden by FEHA and, thus, that her opposition to that

decision was protected activity under FEHA.

Schutten also asserts that, even if Ficke did not deny the request for emeritus

status because of the age of the retiring faculty member, Schutten still can assert a valid

claim for retaliation because she protested “perceived age discrimination” and, indeed,

CSU admitted removing her as dean because she raised concerns that CSU was

“engaging in unlawful discrimination against a fellow employee based upon his age.”

However, Schutten fails to identify any evidence that she protested against perceived age

discrimination or that CSU admitted such discrimination. Instead, Schutten simply cites

approximately 50 pages in the appendix. This is not sufficient. As appellant, Schutten

bears the burden of demonstrating that the trial court committed reversible error

(Jameson, supra, 5 Cal.5th at p. 609; Denham v. Superior Court (1970) 2 Cal.3d 557,

564), and she cannot satisfy that burden by pointing without explanation to a number of

pages in the record and assuming that the court will construct a theory supportive of her

position based on review of that evidence. (See People v. Stanley (1995) 10 Cal.4th 764,

793; see also Inyo Citizens for Better Planning v. Inyo County Board of Supervisors

(2009) 180 Cal.App.4th 1, 13 [“ ‘We are not required to search the record to ascertain

whether it contains support for [a party’s] contentions.’ [Citation.] We do not serve as

‘backup appellate counsel,’ or make the parties’ arguments for them.”].)

In any event, the evidence cited by Schutten does not substantiate her assertion

that she protested perceived age discrimination. About half of the evidence cited does

not concern the emeritus request at all; instead, Schutten cites to evidence previously

cited concerning negative comments about her and other employees besides the retiring

faculty member for whom emeritus status was requested. Still other evidence cited

concerns Schutten’s recent applications for employment at CSU, the adverse action taken

against Schutten, and her requests for reconsideration.

18

There is some evidence concerning the decision on the emeritus request and

Schutten’s subsequent actions. However, there is no evidence that Schutten protested any

perceived age discrimination. To the contrary, Schutten testified that she believed that

under the applicable rules, “emeritus status shall normally be conferred on each tenured

factual member upon retirement” and that she investigated the correctness of Ficke’s

decision to deny emeritus status because she was “being proactive” and “trying to find

out ways to make sure the director would not grieve the provost for an arbitrary

decision.” Wright similarly testified that Schutten contacted her about the emeritus

policy to “confirm what she was reading in the policy” and seek clarification of the

policy. There is no mention in any of this evidence of the age of the professor in question

and, thus, no triable issue whether Schutten raised concerns about age discrimination.

Schutten asserts that an employer may not fire or otherwise take adverse action

against an employee opposing discrimination against a fellow employee even if the

complaining employee is mistaken and there was no discrimination. While that is

correct, this principle is inapposite here because, as just shown, Schutten did not protest

that the retiring faculty member was denied emeritus status due to age discrimination or

other violation of FEHA. Moreover, even if Schutten had believed that the denial was

based on age, that belief would not save her retaliation claim because she did not

articulate that belief to SJSU. As the Supreme Court has noted, “[s]tanding alone, an

employee’s unarticulated belief that an employer is engaging in discrimination will not

suffice to establish protected conduct for the purposes of establishing a prima facie case

of retaliation.” (Yanowitz, supra, 36 Cal.4th at p. 1046.)

We therefore conclude that CSU is entitled to summary judgment on Schutten’s

retaliation claim.

19

D. Harassment and Failure to Prevent Harassment

In her third cause of action, Schutten claimed that CSU failed to take reasonable

steps to prevent harassment. On appeal, she asserts there is a triable issue concerning

whether she was subjected to harassment based upon age. Here again, we disagree.

FEHA requires employers “to take all reasonable steps necessary to prevent

discrimination and harassment from occurring.” (§ 12940, subd. (k).) To show

harassment under FEHA, a plaintiff must show, among other things, that harassment

based on age or other protected characteristic “unreasonably interfered with [the

plaintiff’s] work performance by creating an intimidating, hostile, or offensive work

environment.” (Martin, supra, 97 Cal.App.5th at p. 170.) A hostile work environment is

not created by trivial, isolated, or sporadic harassment. (Lyle v. Warner Brothers

Television Productions (2006) 38 Cal.4th 264, 283.) Instead, to create a hostile work

environment, conduct must be “ ‘severe enough or sufficiently pervasive to alter the

conditions of employment and create a work environment that qualifies as hostile or

abusive to employees.’ ” (Id. at p. 279, italics omitted; see Bailey v. San Francisco Dist.

Attorney’s Office (2024) 16 Cal.5th 611, 628 (Bailey).)

Schutten has not presented evidence that she experienced harassment sufficiently

severe or pervasive to create an abusive working environment. Citing approximately

30 pages of the record, she asserts that “[t]he evidence established that, during her

employment, she directly experienced harassment and discrimination based upon her

age.” However, Schutten does not explain how the evidence cited demonstrates a hostile

or abusive work environment. Indeed, Schutten devotes much of the space purportedly

concerning her harassment claim to discussing how age-related comments may be

probative of discriminatory intent—an issue irrelevant to her harassment claim. As a

consequence, Schutten has failed to offer any meaningful argument concerning

harassment and therefore has forfeited that point. (See Delta Stewardship Cases, supra,

48 Cal.App.5th 1014, 1075; see also Allen v. City of Sacramento (2015) 234 Cal.App.4th

20

41, 52 (Allen) [“It is the responsibility of the appellant . . . to support claims of error with

meaningful argument and citation to authority.”].)

In any event, Schutten’s evidence falls far short of showing a hostile work

environment. In arguing that she was subjected to harassment, Schutten cites to the same

evidence of negative comments that she contended showed a discriminatory motive. As

shown above, the only age-related remarks concerning Schutten’s performance expressed

appreciation for her experience, and the other comments about her age were occasional

banter with the former provost at a weekly lunch with deans about his physical vigor.

Even if this banter—which, it must be acknowledged, was from a supervisor—was

inappropriate, it was not sufficiently severe or pervasive to create a hostile working

environment. (Bailey, supra, 16 Cal.5th at p. 628 [“ ‘ “[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious)” ’ are not sufficient to create

an actionable claim of harassment.”].)

The remaining evidence cited by Schutten does not raise a triable issue concerning

harassment either. It is unclear whether some of the evidence cited by Schutten—for

example, that an older dean was forced to leave after a Title IX issue was mishandled and

that younger deans received positions and pay increases that Schutten did not—involves

age discrimination. Other evidence, a story about a dean being told that he was too old,

occurred before Schutten arrived at CSU. There is some evidence suggesting a hostility

to older employees while Schutten was at the university: Schutten testified that she was

told to get rid of two “old” faculty members who “were not working as well as they

should” and that a 90-year-old music director was mocked because of his age. But this

evidence does not show age-based harassment so severe and pervasive that it created an

abusive working environment. (See, e.g., Cornell v. Berkeley Tennis Club (2017) 18

Cal.App.5th 908, 940-941; Jones v. Department of Corrections & Rehabilitation (2007)

152 Cal.App.4th 1367, 1378-1379.)

21

Accordingly, we conclude that summary judgment was properly entered on

Schutten’s harassment claim.

E. Wrongful Termination

The trial court ruled that Schutten failed to raise a triable issue concerning her

cause of action for wrongful termination because that claim was based on claims that the

court had rejected. On appeal, Schutten contests this ruling, asserting that she presented

evidence raising a triable issue concerning constructive discharge or termination.

However, a claim for wrongful termination requires the violation of a statute or other

fundamental public policy. (See, e.g., Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d

167, 169-170.) Schutten does not argue that she can show such a violation if her other

claims fail. As a consequence, once again, Schutten has failed to support her appeal with

any meaningful argument and therefore has forfeited the point at issue. (See, e.g., Delta

Stewardship Cases, supra, 48 Cal.App.5th at p. 1075; Allen, supra, 234 Cal.App.4th at

p. 52.)

F. Unpaid Wages

Schutten also brought a claim for unpaid overtime wages. The trial court ruled

that the claim failed because in her memorandum in opposition to CSU’s motion for

summary judgment Schutten made no argument concerning the claim. On appeal,

Schutten asserts that she raised triable issues of fact concerning this case. However, she

does not include in her brief any argument concerning this cause of action. Accordingly,

this point has been forfeited as well. (See, e.g., Delta Stewardship Cases, supra, 48

Cal.App.5th at p. 1075; Allen, supra, 234 Cal.App.4th at p. 52.)

III. DISPOSITION

The judgment is affirmed. Respondents are entitled to recover their costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

22

____________________________

BROMBERG, J.

WE CONCUR:

____________________________________

GREENWOOD, P. J.

____________________________________

DANNER, J.

Schutten v. Board of Trustees of California State University

H052561

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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