Butler v. Rio Hondo Community College Dist. CA2/2

Filed 9/22/15 Butler v. Rio Hondo Community College Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION TWO

CATHY BUTLER, B257748

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. VC061881)

v.

RIO HONDO COMMUNITY COLLEGE

DISTRICT et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County.

Yvonne T. Sanchez, Judge. Reversed.

Law Offices of Vera & Barbosa and Ronald T. Vera for Plaintiff and Appellant.

Gibeaut, Mahan & Briscoe, Gary R. Gibeaut, Nancy Mahan-Lamb, John W. Allen

and Julie A. Mullane for Defendants and Respondents.

_________________________

In this employment retaliation case under The Reporting by Community College

Employees of Improper Governmental Activities Act (Act) (Ed. Code, § 87160 et seq.),1

Cathy Butler (Butler) appeals from the summary judgment entered in favor of Rio Hondo

Community College District (District), Henry Gee (Gee) and Yolanda Emerson

(Emerson). According to Butler, the trial court improperly granted summary judgment

because there are triable issues as to whether she engaged in protected activity, and

whether there was a causal connection between that protected activity and the nonrenewal

of her yearly contract. Upon review of the record, we conclude that Butler is correct and

the judgment must be reversed.

FACTS

Butler filed a third amended complaint (TAC) alleging she had been retaliated

against in violation of the Act because she reported to her superiors that a subordinate

“may have falsely prepared an invoice authorizing payment of monies to an individual

who was not allowed to receive” them.2

The District, Gee and Emerson sought summary judgment on the grounds that

Butler did not engage in protected activity. They argued that this case involved the report

of an internal personnel matter rather than a violation of the law, and therefore the report

was not protected under the Act. In addition, they argued that there was no causal

connection between Butler’s report of a subordinate’s misconduct and the District’s

nonrenewal of Butler’s yearly contract.

According to the District, Emerson and Gee’s separate statement: Butler’s job

responsibilities included being the advisor to the Associated Student Body (ASB) and

overseeing ASB fund requisition. In June 2011, a clerk in the Student Services

Department informed Butler that her subordinate, Hannah Pastrano (Pastrano), had issued

1

All further statutory references are to the Education Code unless otherwise

indicated.

2

Butler also alleged that she was retaliated against in violation of Labor Code

section 1102.5. In her opening appellate brief, she states that she “chose not to seek relief

under” that Labor Code section.

2

a suspicious ASB requisition, which appeared to violate District policies. Pastrano

admitted to Butler that the requisition had not been approved by the Inter-Club Council,

and she had falsified minutes to reflect otherwise. Butler reported the matter to her

supervisors, including Gee and Emerson, which resulted in Pastrano being placed on

administrative leave.

Emerson completed her internal investigation, and then retained an outside

investigator, Douglas Brenn (Brenn), to conduct an independent investigation into

Pastrano’s alleged misconduct. Brenn’s extensive audit report concluded that Pastrano

had been making unauthorized disbursements since 2009. Subsequently, in August 2011,

she resigned.

Butler took a leave of absence from September 8, 2011, to September 22, 2011.

She claims she was pressured to do so by District administrators. At some point during

the Pastrano investigation, Emerson had discovered that Butler had improperly approved

certain ASB requisitions. This prompted Emerson to review ASB records to determine if

Butler had engaged in any misconduct. Sometime after Pastrano’s resignation, Pastrano

contacted Emerson and stated that Butler had made errors in ASB documentation.

Emerson completed her review of ASB requisition records in September 2011 and

concluded that Butler may have falsified ASB documentation. When Emerson asked to

meet with Butler, she said she would not appear at any meeting without an attorney paid

for by the District. The District refused to pay for Butler’s attorney. On September 26,

2011, Butler and her attorney attended a meeting with Emerson and Gee and denied any

misconduct. Butler was placed on paid administrative leave pending the outcome of an

investigation.

Once again, Emerson hired Brenn to conduct an investigation. He completed it in

December 2011, concluding that Butler had a pattern dating back to 2009 of making

errors in ASB requisitions. The errors implicated potential violations of the Ralph M.

3

Brown Act3 (Brown Act) insofar as ASB agendas did not correctly reflect the actions of

the ASB Governing Board.

Prior to June 2011, Gee had met with Butler on two occasions to discuss her job

performance and productivity. On both occasions, according to Gee, Butler responded to

criticism by offering her resignation.

When Butler was on administrative leave, her temporary replacement, Mike

Munoz (Munoz), completed two assignments in two months. These were assignments

Butler had failed to complete in over two years. In addition, Munoz implemented a

Student Leadership Institute Program, an assignment that Butler had also failed to

complete.

With the input of Gee and Emerson, District President Ted Martinez (Martinez)

made the decision to recommend to the District’s Board of Trustees that Butler’s contract

not be renewed. The decision not to renew Butler’s contract for the 2012-2013 school

year was based on four factors: (1) ongoing concern about her job performance;

(2) Butler having twice offered to resign as a response to constructive feedback; (3) her

failure to effectively supervise Pastrano; and (4) investigation results uncovering Butler’s

errors in ASB requisitions.

In April 2012, Butler filed a whistleblower retaliation complaint with the State

Personnel Board pursuant to the Act. The State Personnel Board issued a decision

denying all relief requested by Butler.

The separate statement was supported by declarations from Emerson, Gee,

Martinez and attorney John W. Allen (Allen).

In opposition to the motion, Butler argued, inter alia, that there were triable issues

as to whether she was a poor performing employee, whether she offered to resign and

3

The Brown Act is at Government Code section 54960.1 et seq. It requires a

legislative body of a local agency to post an agenda 72 hours before regular meetings. In

general, no action or discussion can be taken with respect to any item not appearing on

the posted agendas. (Retired Employees Assn. of Orange County, Inc. v. County of

Orange (2011) 52 Cal.4th 1171, 1181; Gov. Code, § 54954.2, subd. (a).)

4

whether she made errors in ASB requisitions. She supported her opposition with three

declarations of her own.

The trial court granted the motion for summary judgment. In its tentative ruling,

which it adopted, the trial court stated, “Whistleblowing does not include carrying out a

supervisor’s regular job duties of reporting misconduct of a subordinate employee.”

Then, in the concluding paragraph, the trial court stated, “Although [Butler]

. . . submitted her own declarations contesting [the District, Emerson and Gee’s] reasons

for their decision not to renew her one-year contract, [Butler] proffered no argument (or

evidence) supporting that her disclosure was protected under the Education Code. As

such, she failed to meet her burden[.]”4

This appeal followed.

DISCUSSION

I. Standard of Review.

“We review a grant of summary judgment de novo, considering ‘“all of the

evidence set forth in the [supporting and opposition] papers, except that to which

objections have been made and sustained by the court, and all [uncontradicted] inferences

reasonably deducible from the evidence.”’ [Citation.] ‘In independently reviewing a

motion for summary judgment, we apply the same three-step analysis used by the

superior court. We identify the issues framed by the pleadings, determine whether the

4

The trial court’s ruling contained some discussion of the evidence submitted by

the parties. It is unclear what the trial court concluded. At one point, it noted that

Emerson declared that an investigation revealed that Butler had “a pattern of errors,” and

seemed to conclude that one sentence in one of Butler’s declarations about accounting

department records failed to create a triable issue as to the existence of errors. While the

trial court apparently faulted Butler for not providing Accounting Department records, it

apparently did not fault the District, Emerson and Gee for failing to provide

documentation of the purported “errors.” On the topic of purported errors, the trial court

did not discuss anything else that Butler said in her declarations. Continuing on, the trial

court said that the District, Emerson and Gee “proffered evidence of what they

characterize as [Butler’s] poor performance, including her inability to supervise

Pastrano,” but then acknowledged that Butler “disputes those opinions through her own

declaration.”

5

moving party has negated the opponent’s claims, and determine whether the opposition

has demonstrated the existence of a triable, material factual issue.’ [Citation.]”

(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415.) The moving

papers are strictly construed, while the opposition is liberally construed in the most

favorable light. Moreover, doubts about the propriety of granting summary judgment

must be resolved in favor of denying it. (Stratton v. First Nat. Life Ins. Co. (1989) 210

Cal.App.3d 1071, 1083.)

II. The Act.

To protect whistleblowers, the Act provides: A “person who intentionally engages

in acts of . . . retaliation . . . against an employee . . . for having made a protected

disclosure shall be liable in an action for damages brought against him or her by the

injured party.” (§ 87164, subd. (h).) “In any civil action . . . , once it has been

demonstrated by a preponderance of evidence that an activity protected by this article

was a contributing factor in the alleged retaliation against a . . . current . . . employee, the

burden of proof shall be on the . . . school administrator . . . or public school employer to

demonstrate by clear and convincing evidence that the alleged action would have

occurred for legitimate, independent reasons even if the employee had not engaged in

protected disclosures[.]” (§ 87164, subd. (j).)

Under the Act, a “‘protected disclosure’ means a good faith communication that

discloses . . . information that may evidence,” inter alia, improper governmental activity.

(§ 87162, subd. (e).) Improper governmental activity means “an activity by a community

college or by an employee that is undertaken in the performance of the employee’s

official duties, whether or not that activity is within the scope of his or her employment,

and that meets either of the following descriptions: [¶] (1) The activity violates a state or

federal law or regulation, including, but not limited to, corruption, malfeasance, bribery,

theft of government property, fraudulent claims, fraud, coercion, conversion, malicious

prosecution, misuse of government property, or willful omission to perform duty. [¶]

(2) The activity is economically wasteful or involves gross misconduct, incompetency, or

inefficiency.” (§ 87162, subd. (c).)

6

Butler contends that an employee’s report of improper governmental activities to a

superior constitutes protected activity. This issue was essentially resolved in Mize-

Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832 (Mize-

Kurzman). In that case, the plaintiff sued under the Act and Labor Code section 1102.55

and alleged she was retaliated against for reporting illegal conduct at a community

college district to her supervisors. (Mize-Kurzman, supra, at pp. 839–842.) The trial

court instructed the jury, inter alia, that “[i]nformation passed along to a supervisor in the

normal course of duties is not a protected disclosure[.]” (Id. at p. 849.) The reviewing

court reversed as to the claims arising under the Act as well as Labor Code section

1102.5. (Mize-Kurzman, supra, at p. 856.) In analyzing the issues presented, the court

noted that Labor Code section 1102.5, subdivision (e) provides that a “report made by an

employee of a government agency to his or her employer is a disclosure of information to

a government or law enforcement agency pursuant to subdivisions (a) and (b).” The

court did not engage in separate examination of any of the statutory language in the Act.

It did, however, state that “nothing in the legislative history of the pertinent statutes or the

case authorities indicates that the terms ‘disclosing information’ and ‘a disclosure of

information’ in Labor Code section 1102.5 and ‘protected disclosure’ in [section 87162]

were intended to have significantly different meanings.” (Mize-Kurzman, supra, at

p. 848.)

We interpret section 87162 in a manner consistent with Mize-Kurzman. When

interpreting a statute, we must determine the Legislature’s intent to effectuate the

5

Labor Code section 1102.5, subdivision (b) provides: “An employer, or any

person acting on behalf of the employer, shall not retaliate against an employee for

disclosing information, or because the employer believes that the employee disclosed or

may disclose information, to a government or law enforcement agency, to a person with

authority over the employee or another employee who has the authority to investigate,

discover, or correct the violation or noncompliance, or for providing information to, or

testifying before, any public body conducting an investigation, hearing, or inquiry, if the

employee has reasonable cause to believe that the information discloses a violation of

state or federal statute, or a violation of or noncompliance with a local, state, or federal

rule or regulation, regardless of whether disclosing the information is part of the

employee’s job duties.”

7

statute’s purpose. (Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135,

1143.) What is the intent of the Act? Notably, section 87161 provides: “It is the intent

of the Legislature that community college employees and other persons disclose, to the

extent not expressly prohibited by law, improper governmental activities.” A review of

the definition of protected disclosure reveals that the only limitation is that it must be

made in good faith. The language brooks no other limitation. Based on the plain

language of the statutory scheme, it is apparent that the Legislature intended to protect

disclosures designed to end improper governmental activities. An employee’s report to a

supervisor is often the quickest path to bring those activities to an end. Consequently, we

conclude that a nonoffending employee who reports improper governmental activities to

a supervisor can seek protection under the Act.

III. Relevant Law For Retaliation Cases.

Traditionally, employment cases under the Fair Employment and Housing Act and

the Civil Rights Act of 19646 have held that “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. [Citations.] Once an employee establishes a prima facie case, the

employer is required to offer a legitimate, nonretaliatory reason for the adverse

employment action. [Citation.] If the employer produces a legitimate reason for the

adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’”’

and the burden shifts back to the employee to prove intentional retaliation. [Citation.]”

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

“Both direct and circumstantial evidence can be used to show an employer’s intent

to retaliate. ‘Direct evidence of retaliation may consist of remarks made by

decisionmakers displaying a retaliatory motive. [Citation.]’ [Citation.] Circumstantial

evidence typically relates to such factors as the plaintiff’s job performance, the timing of

6

Title 42 of the United States Code section 2000e et seq.

8

events, and how the plaintiff was treated in comparison to other workers. [Citations.]”

(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)

The framework for civil rights cases was developed for use at trial, not summary

judgment. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965

(Swanson).) Summary judgment law shifts the initial burden around and places it on a

moving party defendant to “negate an element of the plaintiff’s claim or establish a

complete defense to the claim. [Citation.]” (Swanson, supra, at pp. 965–966.) “An

employer defendant may meet its initial burden on summary judgment, and require the

employee plaintiff to present evidence establishing a triable issue of material fact, by

presenting evidence that either negates an element of the employee’s prima facie case, or

establishes a legitimate [nonretaliatory] reason for taking the adverse employment action

against the employee.” (Id. at p. 966.)

“‘[T]o avoid summary judgment [once the employer makes the foregoing

showing], an employee claiming [retaliation] must offer substantial evidence that the

employer’s stated [nonretaliatory] reason for the adverse action was untrue or pretextual,

or evidence the employer acted with a [retaliatory] animus, or a combination of the

two[.]’” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160.) An employee

cannot simply show that an employer’s action was wrong or mistaken. Rather, “‘the

[employee] must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them “unworthy of credence,”

[citation], and hence infer “that the employer did not act for the [the asserted] non-

discriminatory reasons.” [Citations.]’ [Citations.]” (Hersant v. Department of Social

Services (1997) 57 Cal.App.4th 997, 1005.)

We opt to apply this traditional framework to Butler’s case under the Act.

However, a wrinkle must be added.

In all practical effect, the Legislature created an affirmative defense when it

adopted section 87164, subdivision (j). Once the plaintiff proves by a preponderance of

the evidence that her protected activity was a contributing factor to adverse action taken

9

by the employer, then the burden shifts to the employer to prove by clear and convincing

evidence that the adverse action would have occurred for independent, legitimate reasons

even if the employee had not engaged in protected disclosures. The question is how the

statute impacts summary judgment.

When plaintiffs have the burden of proving issues at trial by clear and convincing

evidence, courts have held that those plaintiffs cannot defeat summary judgment or

adjudication by offering evidence on those issues unless they meet the clear and

convincing standard. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244,

252 [plaintiff opposing summary judgment in a defamation case against a magazine and a

journalist had to produce clear and convincing evidence of actual malice]; Basich v.

Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121 [plaintiff opposing a motion for

summary adjudication regarding punitive damages must submit evidence satisfying the

clear and convincing standard].) By logical extension, a defendant seeking summary

judgment on a section 87164, subdivision (j) affirmative defense must satisfy the clear

and convincing standard. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851

(Aguilar) [“how the parties moving for, and opposing, summary judgment may each

carry their burden of persuasion and/or production depends on which would bear what

burden of proof at trial”].)

IV. Triable Issues Exist.

The TAC avers that Butler engaged in protected activity by reporting that Pastrano

may have authorized payment of money to an unauthorized person. Such misconduct, on

its face, qualified as either corruption, malfeasance, theft of government property, fraud,

conversion, economically wasteful misconduct, gross misconduct, incompetency, or

inefficiency.7 The TAC further shows that Butler suffered adverse employment action

7

To support its conclusion that whistleblowing does not include carrying out a

supervisor’s regular job duties of reporting misconduct of a subordinate employee, the

trial court cited Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th

1378 (Patten). Patten stated that Labor Code section 1102.5 did not protect the reporting

of internal personnel matters, and therefore held, inter alia, the statute did not offer

protection when the plaintiff disclosed complaints by students of inappropriate conduct

10

because her yearly contract was not renewed, and there was an indicia of retaliatory

animus due to the proximity of her protected activity and the adverse employment action.

(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 868 [a showing of temporal

proximity is sufficient to shift the burden to the employer to articulate a

nondiscriminatory reason for the adverse employment action]; Morgan v. Regents of

University of California (2000) 88 Cal.App.4th 52, 69 [same].) Thus, the TAC alleges a

prima facie case of retaliation.

Below, the District, Emerson and Gee attempted to negate a triable issue by

arguing that Butler did not engage in protected activity, and there was no causal link.

Regarding the first point, the trial court ruled that the Act did not protect an employee’s

report to her supervisor. Based on our interpretation of the Act, we have held otherwise

and need not discuss the matter further. Regarding the second point, we note that the

evidence of Butler being placed on administrative leave soon after engaging in protected

activity, and the nonrenewal of her contract, established a causal link, at least with

respect to Butler’s prima facie case. Thus, the significance of the evidence offered by the

District, Emerson and Gee is that it proffers a nonretaliatory reason for the decision not to

renew Butler’s contract. We therefore turn to the following issues. Did the District,

Emerson and Gee meet their burden of proof? If so, did Butler meet her burden of

showing pretext or retaliatory animus? If so, did the District, Emerson and Gee offer

clear and convincing evidence that Butler’s contract would not have been renewed even

if she had not reported Pastrano’s misconduct?

by a physical education teacher because no legal violation was involved. (Patten, supra,

at p. 1385.) On the other hand, Patten recognized Labor Code section 1102.5 protection

for the reporting of unauthorized use of public assets, and held there was a triable issue as

to whether the plaintiff engaged in protected activity when she reported a transfer of

funds to a surplus and reasonably believed that she had identified a violation of state or

federal law. (Patten, supra, at pp. 1385–1386.) Because Butler reported what she

suspected to be an unauthorized payment of money, Patten supports rather than defeats a

conclusion of protected activity.

11

A. The District, Emerson and Gee’s Evidence.

To shift the burden, the District, Emerson and Gee had to “present evidence that

would require a reasonable trier of fact to find” that asserted facts were more likely false

than true. (Aguilar, supra, 25 Cal.4th at p. 851.) In other words, they had to make a

“prima facie showing of the nonexistence of any triable issue of material fact[.]” (Id. at

p. 850.) “A prima facie showing is one that is sufficient to support the position of the

party in question. [Citation.]” (Id. at p. 851.)

In the separate statement submitted by the District, Emerson and Gee, they stated

that the decision not to renew Butler’s contract for the 2012-2013 school year was based

on the following four factors: (1) ongoing concern about her job performance; (2) Butler

having twice offered to resign as a response to constructive feedback; (3) her failure to

effectively supervise Pastrano; and (4) investigation results uncovering Butler’s errors in

ASB requisitions.

In support, Emerson, Gee and Martinez offered declarations.

Gee declared that prior to the Pastrano matter, his experiences with Butler were

problematic. He met with her on two occasions to discuss her job performance and

productivity. Each time, she offered to resign rather than accept criticism and propose

constructive solutions. While Butler was on paid administrative leave in the fall of 2011,

Munoz assumed Butler’s duties and accomplished two tasks she had not accomplished,

namely creating a Student Activities Web site for Student Government and updating the

Student Activities Policies and Procedures manual. In addition, Butler took a sabbatical

in 2007 to develop a Student Leadership Institute Certificate Program, but she never

implemented the program. Gee asked Munoz to implement the program, and he did so

within four months. Based on the foregoing, Gee concluded that Munoz, Butler’s direct

supervisor, effectively performed Butler’s job responsibilities during the fall of 2011.

Aside from those issues, Gee noted that Brenn determined that Butler had a pattern of

making errors in ASB requisitions. Rebounding off that information, Gee offered the

opinion that “[Butler’s] mistakes . . . potentially implicated violations of the Brown Act as

money may have been spent without being correctly agendized for public meetings.”

12

In her declaration, Emerson stated that as a result of her investigation into

Pastrano, she asked for ASB requisition records. Those records showed that Butler “had

approved requisitions which clearly should not have been approved.” Next, Emerson

declared that her preliminary review of ASB records led her to believe Butler may have

falsified ASB documentation. Emerson added that Brenn concluded that Butler had a

pattern dating back to 2009 of making errors in ASB requisitions, agendas and minutes,

and that the errors were serious in that they implicated potential violations of the Brown

Act because ASB agendas did not accurately reflect the actions taken by the ASB. Last,

Emerson declared: “While [Butler] was on paid administrative leave, I became aware of

concerns her immediate supervisor, [Munoz], had regarding her job performance,

including [Butler’s] poor reaction to constructive criticism. Based on the Brenn report, I

likewise had concerns regarding [Butler’s] job performance, and her ineffective

supervision of [Pastrano].”

According to Martinez, he relied on the recommendations of Emerson, Gee and

Munoz, and on Brenn’s investigation, when determining that Butler was not effective in

supervising her staff, and was not properly managing the Student Services Department.

Martinez lost confidence in her leadership and concluded that the District should not

renew her contract. He conveyed his recommendation to the Board of Trustees, which

authorized sending Butler notice that her contract of employment would not be renewed

for the 2012-2013 school year.

We now assess the evidence.

In our estimation, Martinez offered solid evidence legitimizing the basis for his

recommendation to the Board of Trustees.8 And Gee provided solid evidence that Butler

failed tasks, did not accept criticism and twice offered to resign. Thus, the District,

Emerson and Gee offered sufficient evidence to establish two of the four reasons they

advanced for not renewing Butler’s contract.

8

But, of course, if Emerson and Gee acted for retaliatory reasons, and if they gave

Martinez misleading information, then Martinez’s recommendation was tainted. (Clark

v. Claremont University Center (1992) 6 Cal.App.4th 639, 667.)

13

The question arises whether the evidence of the other two reasons was equally as

solid. It cannot be ignored that it was vague and conclusory.9 Emerson and Gee did not

provide any specifics to back up the claims attributed to Brenn or Munoz. Compounding

the problem, Emerson and Gee did not provide a copy of Brenn’s investigative report, nor

did they provide a list or sampling of Butler’s purported errors in connection with ASB

requisitions. Thus, if Emerson and Gee’s statements were credited, all we would know

was that Butler committed “errors.” We would not know whether the errors were serious

and legitimate reasons for nonrenewal of Butler’s contract, or whether the errors were

trivial and therefore pretextual reasons. Moreover, Emerson did not elaborate on her

unspecified concerns about Butler’s supervision of Pastrano. Were they serious

concerns? Or trivial concerns? We do not know. In light of this, we conclude that the

foregoing evidence did not meet the District, Emerson and Gee’s burden. As highlighted

in United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018, “‘A

common defect of . . . declarations is the recital of legal conclusions or ultimate facts,

instead of statements of evidentiary facts.’ [Citation.]” That observation is all the more

true here given that the evidence is vague.

As to whether the District, Emerson and Gee offered specific evidence of Butler’s

misconduct, they might assume we would consider the findings in the decision by the

State Personnel Board. Any such assumption is misplaced. Though Allen attached the

decision to his declaration, he did not authenticate it. “Documents used in support of a

motion for summary judgment must be properly authenticated or they may not be

considered.” (Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 606; Evid.

Code, § 1401, subd. (a) [“Authentication of a writing is required before it may be

9

The declarations provided by Emerson and Gee stated that Brenn determined that

Butler made unspecified errors in requisitions, agendas and minutes. Also, Emerson

relayed Munoz’s statements regarding Butler’s job performance. The statements of

Emerson and Gee contained hearsay. This is so because any underlying statements by

Brenn and Munoz were out of court statements offered to prove the truth of the matters

asserted. (Evid. Code, § 1200.) But Butler did not object, so the evidence must be

considered. (Code Civ. Proc., § 437c, subd. (c).)

14

received in evidence”].) And while their separate statement referred to the decision’s

conclusion, it did not refer to the decision’s findings. As has been oft said, “‘“if it is not

set forth in the separate statement, it does not exist.”’ [Citation.]” (City of Pasadena v.

Superior Court (2014) 228 Cal.App.4th 1228, 1238; Teselle v. McLoughlin (2009) 173

Cal.App.4th 156, 175 [for purposes of summary judgment, “‘the relevant facts are limited

to those set forth in the parties’ statements of undisputed facts’”].) Finally, we note that

the District, Emerson and Gee did not refer to the findings in the decision, either in the

trial court or on appeal, so they cannot be heard to complain (after the fact) that we did

not consider them.

B. Butler’s Evidence.

In counterpoint to Gee, Butler declared that she never met with him regarding her

job performance and productivity, nor did she offer her resignation. She also declared

that her last evaluation was completed by Daniel Rubalcava, the person who was her

supervisor in 2008, and he did not mention any problems. In a prior evaluation, he stated

that she had done a good job of fulfilling her duties. Further, Butler declared she created

a Student Activities Web site prior to May 2008, Gee never asked her to update the

Student Activities Policies and Procedures manual, and she designed an updated

handbook with policies and procedures for 2010-2011 to assist club advisors and students

in clubs and organizations. Finally, she declared that she advised against a Student

Leadership Institute, and Gee understood her point of view. She proposed creating a

Student Leadership class, which she thought was a better concept. Gee said he was not

interested in such a program. As a compromise, she agreed with Gee and Rubalcava that

she would plan, develop and coordinate an ASB Club Leadership Conference. The

conference was held in the fall of 2009 and again in the fall of 2010. She did not speak

with Gee again about the topic. In 2012, at the State Personnel Board Hearing, Butler

heard for the first time that Gee recommended that her contract not be renewed for a 14th

year because she had not completed the Student Leadership Institute.

As to the hearsay claim that Butler made errors in ASB requisitions, Butler

responded by declaring that she reviewed all the forms that Emerson claimed contained

15

errors before they went to the accounting department at Rio Hondo College. Butler

stated, “As to these documents, I was never notified from any employee in the

Accounting Department that there were any errors that caused [Emerson] to state she had

concerns that the Brown Act may have been violated. Any determination[] which

[Emerson] made that there were errors in the paperwork, is not supported by the

Accounting Department’s records. The Accounting [D]epartment processed the

paperwork that I reviewed according to the District’s policies in place and the

Accounting Department never expressed any concern to me that there were errors. If

there had been errors in the paperwork, from past experience Accounting would have not

processed the paperwork. I was never notified by the Accounting [D]epartment in the 13

years that I worked at Rio Hondo that there were errors in the paperwork I submitted on

behalf of the student organizations.”

Through her declarations, Butler controverted three of the four reasons given for

the nonrenewal of her contract, and she thereby established triable issues sufficient to

require denial of summary judgment. Though she did not specifically address the claim

that she failed to properly supervise Pastrano, that does not undermine our analysis. As

previously stated, the evidence was too weak to shift the burden on that discrete factual

issue. Beyond that, evidence covering one part of a four-part justification for adverse

employment action could not legitimize the justification when the other three parts of the

justification are called into question.

C. The Section 87164, Subdivision (j) Affirmative Defense.

The District, Emerson and Gee did not argue below, nor do they argue on appeal,

that they submitted clear and convincing evidence that they would not have renewed

Butler’s contract even if she did not report Pastrano. Thus, we need not determine

whether they established an affirmative defense.

All other issues are moot.

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DISPOSITION

The judgment is reversed.

Butler is entitled to her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ

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