Gordon v. City of Los Angeles CA2/1

Filed 2/11/16 Gordon v. City of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

JAMES GORDON, B256995

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC 491800)

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

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

L. Fruin, Jr., Judge. Reversed.

Law Offices of Gregory W. Smith, Gregory W. Smith; Christopher Brizzolara;

Benedon & Serlin, Douglas G. Benedon and Kelly R. Horwitz for Plaintiff and

Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Philip Reznik and

Christine T. Heoffner for Defendant and Respondent.

_________________________________

Los Angeles Police Department (LAPD) Sergeant II James Gordon sued the City

of Los Angeles (City) for alleged adverse employment action in retaliation for his

assistance with a California Fair Employment and Housing Act (FEHA) (Gov. Code,

§ 12900 et seq.) action filed by an LAPD detective. The trial court granted City’s motion

for summary judgment, and Gordon timely appealed. We conclude triable issues of

material fact exist with respect to both grounds upon which the trial court granted

summary judgment and reverse, without prejudice to future motions.

BACKGROUND

1. Allegations of the operative complaint

Gordon’s complaint, filed September 10, 2012, alleges that in late 2010 he was

appointed to the positions of Acting Commander’s Aide for Commander Blake Chow and

Acting Officer in Charge (OIC) of the Counter-Terrorism/Special Operations Bureau

(CTSOB) Liaison Section. The latter position had been held by Detective Mike Kozak

and became vacant when he went on military leave. Chow was one of the commanding

officers of the CTSOB.

The complaint alleges that around February of 2011, Chow directed Gordon “to

locate a supervisor from one of the five LAPD Division Commands that had the

necessary skills to serve as the OIC of the CTSOB.” Based upon his research, Gordon

recommended Detective II Dan Garcia for the position. At Chow’s request, Garcia was

notified and an interview with Chow was scheduled. Chow thereafter ordered Gordon to

cancel the interview and find someone else to fill the position. Chow would not explain

his reasons to Gordon and told Gordon to speak to Deputy Chief Michael Downing, who

told Gordon they were not going to select Garcia.

The complaint further alleges that, as part of his duties as Acting Commander’s

Aide, Gordon subsequently reviewed an adjudicated personnel complaint investigation in

which Garcia complained of discrimination and retaliation in violation of FEHA by

command staff and several supervisors at the Major Crimes Division (MCD). Gordon

“was and is aware that when an employee files such actions against LAPD command

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staff or supervisors,” command staff retaliates. He therefore “believed that Chow and

Downing made their decision not to select Garcia for the position as the OIC of the

CTSOB Liaison Section as a result of Garcia having filed such complaint(s) against

MCD command and supervisors.” Gordon informed Garcia of his belief, and Garcia told

Gordon he was pursuing legal action against City for retaliation and discrimination.

Thereafter, Gordon “was identified as a witness in, interviewed by Defendants in

connection with, and otherwise participated in the prosecution of” Garcia’s action against

City, including preparing a declaration in support of Garcia on or about August 6, 2011.

The complaint alleges that on August 16, 2011, Chow angrily confronted Gordon

about speaking to Garcia and said “‘now Garcia was suing’” Chow. Soon thereafter, the

deputy city attorney who prepared a summary judgment motion against Garcia phoned

Gordon and asked to meet with him “to discuss matters regarding Garcia.” Soon

thereafter, Gordon was summoned for drug testing, and when he returned, he discovered

he had been “removed from Chow’s proxy and locked out of Chow’s calendar and

email.” On August 17, 2011, Chow and another officer interviewed Gordon and other

candidates to fill the OIC position. Chow was curt and, “in violation of LAPD policies,

practices, and procedures,” asked Gordon about a 13-year-old complaint, even though

“Chow was already well aware of the facts, events, and circumstances surrounding the

complaint” because he had been one of Gordon’s watch commanders. Gordon was not

selected for the position even though he was the most qualified applicant. Chow also

removed Gordon as his aide, saying Gordon could not be trusted because of his

involvement with Garcia.

The complaint alleges that thereafter Gordon was stripped of his supervisory

duties; he was assigned to answer telephones, perform menial tasks, and write

documents; and he was ostracized by LAPD command staff and excluded from CTSOB

operational issues and matters. He was subsequently moved to the Major Crimes

Analysis section, where he conducted assessments at LAX that would normally be

assigned to an officer of lower rank.

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The complaint alleges the retaliatory conduct caused Gordon to lose income, will

hinder him from being promoted in rank or assigned to “coveted positions,” and will

impair his future earnings.

2. The City’s summary judgment motion

City filed a motion for summary judgment or, alternatively, summary adjudication

of issues. City set forth four theories regarding summary judgment: Gordon did not

engage in protected activity, he was not subjected to any adverse employment action, he

cannot establish a causal connection between his preparation of a declaration for Garcia

and any cognizable adverse employment action, and City had legitimate, nonretaliatory

reasons for the employment actions of which Gordon complains.1

The trial court granted summary judgment for City on the grounds (1) Gordon did

not suffer any adverse employment action and (2) City established a nonretaliatory,

legitimate reason for not selecting Gordon for the OIC position and Gordon failed to

provide substantial evidence that City’s reason was a pretext for retaliation. With respect

to the first ground, the trial court stated that Gordon had not alleged or provided evidence

that his removal from being Chow’s aide caused him any economic loss or resulted in a

change in his rank, pay grade, benefits, or promotional opportunities. The court then

reasoned that because Gordon’s removal as aide was not actionable, it provided no

“secondary support” for his claim that not selecting him as OIC was retaliatory. With

respect to the second ground, the court cited Downing’s testimony that he selected

Sergeant II Mike Seguin for the OIC position because he knew him, liked his background

in community outreach, and thought he was a good fit, whereas Downing had a concern

about Gordon. The court rejected Gordon’s argument that Chow’s involvement in the

interviews and in reporting results of the interviews to Downing tainted the process,

although the court accepted that Chow “had issues with Gordon.”

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City’s “issues” for summary adjudication were (1) City was entitled to summary

judgment and (2) Gordon failed to exhaust administrative remedies with respect to events

subsequent to September 16, 2011.

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DISCUSSION

1. Principles regarding summary judgment motions

A “party moving for summary judgment bears the burden of persuasion that there

is no triable issue of material fact and that he [or she] is entitled to judgment as a matter

of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue

of material fact exists if “the evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion.” (Ibid.) The moving party

also bears the initial burden of producing evidence “to make a prima facie showing of the

nonexistence of any triable issue of material fact.” (Ibid.)

A defendant moving for summary judgment must show, with respect to each of

plaintiff’s causes of action, that either one or more elements of the cause of action cannot

be established or there is a complete defense to that cause of action. (Code Civ. Proc.,

§ 437c, subd. (p)(2).) Upon such a showing, the burden shifts to the plaintiff to prove the

existence of a triable issue of material fact regarding the element or defense addressed by

the defendant’s motion. (Ibid.)

We review a trial court’s grant of summary judgment de novo. (Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We view all of the evidence in a light

favorable to the responding party, liberally construing the responding party’s evidence

while strictly scrutinizing the moving party’s showing, and resolving any doubts or

ambiguities in favor of the responding party. (Id. at p. 768.) Neither we nor the trial

court may weigh the plaintiff’s evidence or inferences against the defendant’s as the trier

of fact would at a trial. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540 (Reid).) “[T]he

facts alleged in the evidence of the party opposing summary judgment and the reasonable

inferences therefrom must be accepted as true.” (Sada v. Robert F. Kennedy Medical

Center (1997) 56 Cal.App.4th 138, 148 (Sada).) “The court seeks to find contradictions

in the evidence, or inferences reasonably deducible from the evidence, which raise a

triable issue of material fact.” (Johnson v. United Cerebral Palsy/Spastic Children’s

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Foundation (2009) 173 Cal.App.4th 740, 754.) “[D]oubts as to whether a summary

judgment should be granted must be resolved in favor of the opposing party.” (Ibid.)

Evidentiary objections made by the parties—either at the hearing on the summary

judgment motion or in writing before the hearing—are preserved on appeal, even if the

trial court neglects its duty to rule upon them. (Reid, supra, 50 Cal.4th at pp. 531–532.)

2. Principles regarding proof of unlawful employment retaliation

It is an unlawful business practice for an employer “to discharge, expel, or

otherwise discriminate against any person because the person has opposed any practices

forbidden under this part or because the person has filed a complaint, testified, or assisted

in any proceeding under this part,” e.g., a proceeding before the Department of Fair

Employment and Housing or a civil action alleging a violation of the FEHA. (Gov.

Code, § 12940, subd. (h).)

At trial, a plaintiff asserting a retaliation claim under the FEHA must first establish

a prima facie case by showing “(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. L’Oreal

USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) “[A]n employee’s conduct may

constitute protected activity for purposes of the antiretaliation provision of the FEHA not

only when the employee opposes conduct that ultimately is determined to be unlawfully

discriminatory under the FEHA, but also when the employee opposes 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.” (Id. at p. 1043.)

An adverse employment action is one that materially affects the terms, conditions,

or privileges of employment. (Yanowitz, supra, 36 Cal.4th at p. 1052.) FEHA not only

protects against “ultimate employment actions such as termination or demotion, but also

the entire spectrum of employment actions that are reasonably likely to adversely and

materially affect an employee’s job performance or opportunity for advancement . . . .”

(Id. at p. 1054.) “[T]he determination of whether a particular action or course of conduct

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rises to the level of actionable conduct should take into account the unique circumstances

of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.)

Such a determination “is not, by its nature, susceptible to a mathematically precise test.”

(Id. at p. 1054.) The “‘terms, conditions, or privileges’ of employment must be

interpreted liberally and with a reasonable appreciation of the realities of the workplace

in order to afford employees the appropriate and generous protection against employment

discrimination that the FEHA was intended to provide.” (Ibid.) “Minor or relatively

trivial adverse actions or conduct by employers or fellow employees that, from an

objective perspective, are reasonably likely to do no more than anger or upset an

employee cannot properly be viewed as materially affecting the terms, conditions, or

privileges of employment and are not actionable, but adverse treatment that is reasonably

likely to impair a reasonable employee’s job performance or prospects for advancement

or promotion falls within the reach of the antidiscrimination provisions of [Government

Code section 12940, subdivisions (a) and (h)].” (Id. at pp. 1054–1055.) Actionable

retaliation need not be carried out in “one swift blow,” but rather may be “a series of

subtle, yet damaging, injuries.” (Id. at p. 1055.) Thus, each alleged retaliatory act need

not constitute an adverse employment action in and of itself, and the totality of the

circumstances must be considered. (Id. at pp. 1036, 1055–1056.)

The causal link between protected activity and the employer’s action may be

established by inference from circumstantial evidence, such as the temporal proximity of

the adverse employment action and the employer’s discovery of the employee’s protected

activity. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

If the employee makes this prima facie showing, a presumption of retaliation

arises. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The employer must then introduce

evidence it acted for a legitimate, nonretaliatory reason. (Ibid.; Sada, supra, 56

Cal.App.4th at p. 149.) If the employer does so, the presumption of retaliation “‘“‘drops

out of the picture’”’” (Yanowitz, supra, 36 Cal.4th at p. 1042), and the question is

“whether the [employee] has shown, or can show, that the challenged action resulted in

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fact from [retaliatory] animus rather than other causes” (Reeves v. Safeway Stores, Inc.

(2004) 121 Cal.App.4th 95, 112 (Reeves)).

The employee, who retains the burden of persuasion, then has “‘“the opportunity

to demonstrate that the proffered reason was not the true reason for the employment

decision. This burden now merges with the ultimate burden of persuading the court that

[the employee] has been the victim of intentional discrimination. [The employee] may

succeed in this either directly by persuading the court that a discriminatory reason more

likely motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.”’” (Sada, supra, 56 Cal.App.4th at p. 150.) The

employee cannot “‘“simply show the employer’s decision was wrong, mistaken, or

unwise. Rather, the employee ‘“must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of

credence,’ [citation], and hence infer ‘that the employer did not act for the [. . . asserted]

non-discriminatory reasons.’”’”’” (McRae v. Department of Corrections &

Rehabilitation (2006) 142 Cal.App.4th 377, 389.) “‘Pretext may . . . be inferred from the

timing of the company’s termination decision, by the identity of the person making the

decision, and by the terminated employee’s job performance before termination.’” (Sada,

at p. 156.)

When the employer files a motion for summary judgment in a retaliation case,

however, the burdens are reversed and the employer bears the burden of “‘present[ing]

admissible evidence either that one or more of plaintiff’s prima facie elements is lacking,

or that the adverse employment action was based on legitimate, nondiscriminatory

factors.’” (Sada, supra, 56 Cal.App.4th at p. 150.) If the employer succeeds in doing so,

it “‘will be entitled to summary judgment unless the [employee] produces admissible

evidence which raises a triable issue of fact material to the [employer’s] showing. In

short, . . . “the judge [will] determine whether the litigants have created an issue of fact to

be decided by the jury.”’” (Ibid., original italics.)

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“‘The central issue is and should remain whether the evidence as a whole supports

a reasoned inference that the challenged action was the product of discriminatory or

retaliatory animus. The employer’s mere articulation of a legitimate reason for the action

cannot answer this question; it can only dispel the presumption of improper motive that

would otherwise entitle the employee to a judgment in his favor. Thus, citing a

legitimate reason for the challenged action will entitle the employer to summary

judgment only when the employee’s showing, while sufficient to invoke the presumption,

is too weak to sustain a reasoned inference in the employee’s favor.’” (Cheal v. El

Camino Hospital (2014) 223 Cal.App.4th 736, 755.) “Proof of discriminatory intent

often depends on inferences rather than direct evidence. [Citation.] And because it does,

‘very little evidence of such intent is necessary to defeat summary judgment.’ [Citation.]

Put conversely, summary judgment should not be granted unless the evidence cannot

support any reasonable inference for plaintiff.” (Nazir v. United Airlines, Inc. (2009) 178

Cal.App.4th 243, 283 (Nazir).)

3. Triable issues of material fact exist

Based upon our de novo review of the record, especially the parties’ separate

statements, including City’s reply separate statement2 to which Gordon did not object,

2 Filing a reply separate statement citing new evidence not filed or cited in the

moving party’s original separate statement is unauthorized and raises significant due

process concerns. (Nazir, supra, 178 Cal.App.4th at p. 252; San Diego Watercrafts, Inc.

v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Gordon did not object to City’s

filing of a reply separate statement or submission of new evidence, however, except he

objected to Downing’s declaration, which was not filed with City’s summary judgment

motion and not cited in City’s separate statement. It was filed about 12 days after the

motion for summary judgment and its supporting papers, less than the statutorily

mandated 75 days before the designated March 14, 2014 hearing date, and, most

important, cited only in the reply separate statement as additional support for several of

City’s purported undisputed facts. We agree that declaration should not be considered.

City should have filed and served it with the motion and supporting papers and cited it in

its separate statement to provide Gordon with notice that City was relying upon it in

support of several purportedly undisputed facts. City’s course of conduct was contrary to

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and the evidence cited in those separate statements, we conclude there are triable issues

of material fact that preclude granting summary judgment. Many of City’s assertions of

facts that it considers material are not actually supported by the evidence cited by City,

and Gordon presented evidence raising a dispute as to many of City’s material facts. In

addition, Gordon’s additional material facts, most of which City either expressly agreed

were undisputed, failed to address, or failed to cite any evidence supporting its claim to

dispute, create triable issues. Given the large number of facts (138), we do not address

all of the disputed or unsupported facts, but only those most significant to resolution of

this appeal.

a. City’s claim of legitimate, nonretaliatory reasons

(1) The Acting Aide position and purported concerns about Gordon

A key aspect of City’s claim it had legitimate, nonretaliatory reasons for its actions

with respect to Gordon was that Gordon was only temporarily placed as Acting OIC and

Acting Aide to Chow because James Featherstone, a manager of the multi-agency Los

Angeles Operational Area Critical Incident Planning and Training Alliance (Alliance), to

which Gordon had been assigned since 2008, complained to Downing that Gordon had

“become disruptive” and asked Downing to remove Gordon from the Alliance. However,

Gordon’s deposition, which is the only evidence City cites in support of this assertion,

does not support it. Gordon testified that Downing told Gordon that Gordon would be

reassigned because Featherstone “personally” “had a problem” with Gordon.

In addition, the evidence cited by City does not support the assertion that Gordon

was assigned as Chow’s aide only temporarily to allow Chow to determine if he would be

“a good fit.” City cites the complaint and Gordon’s deposition, both of which state

Gordon was assigned to be Chow’s aide, and paragraph 4 of Chow’s declaration, which

states, “Gordon was going to be loaned to CTSOB and would serve as my Commander’s

Aide.” A paragraph of Chow’s declaration not cited by City states Chow told Gordon

Code of Civil Procedure section 437c, subdivisions (a) and (b)(1) and California Rules of

Court, rule 3.1350(c)(4) and (d). It also raises significant due process concerns.

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“he was being temporarily loaned to CTSOB to act as my Aide.” Chow does not state the

assignment was temporary to allow him to assess whether Gordon was a “good fit.”

Gordon’s declaration states Chow told him “he was unable to fill the position officially

due to hiring restrictions” and Chow testified at his deposition that as a result of a

“bureaucratic snafu,” the personnel division had not authorized him to have an aide

position and he had to work with that division to obtain authority to open the position,

although he also testified “it had been open for a couple years.” Thus, City has not

established as undisputed facts that Gordon’s assignment as Chow’s aide was meant from

the outset to be temporary or that Gordon had been disruptive in his prior assignment.

Another key aspect of City’s claim of legitimate nonretaliatory reasons with

respect to removal of Gordon as Chow’s aide is Chow’s “significant concerns” about

Gordon’s “judgment and interactions with other employees” and his purported passive

resistance to performing assignments. However, the purportedly undisputed facts City

set forth in its separate statement to support this theory are all either disputed or not

supported by admissible evidence.

First, Gordon established a dispute with respect to City’s assertions that (1) “Chow

had significant concerns” about Gordon’s “judgment and interactions with other

employees,” (2) Chow believed Gordon was passively resisting performing assignments,

and (3) Chow “did not feel confident that [Gordon] was accurately conveying

information to subordinate commands.” Gordon did so by citing and presenting two

highly laudatory performance reviews by Chow, the first for the period of May 20, 2010

to May 19, 2011, and the second for May 20, 2011 to May 19, 2012. Neither reflects any

such concerns about Gordon’s judgment or conduct and both tend to demonstrate Chow

had no such concerns. Each review apparently utilized a standard preprinted LAPD form

with various descriptors pertaining to specified categories of conduct or performance.

The form used for the earlier of the two performance reviews has three ratings for each

category: greatly exceeds standards, meets or sometimes exceeds standards, and needs

improvement. The form used in the later review has only two ratings: meets or exceeds

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standards and needs improvement. Chow did not mark any aspect of Gordon’s

performance or conduct as needing improvement in either review.

Indeed, in the earlier of the two reviews, Chow rated Gordon as greatly exceeding

standards in numerous categories, including many that would seem to pertain directly to

the asserted deficiencies upon which City relies, for example: “Produces the work

deemed most important by employee’s commanding officer; and does so in a quantity

greatly exceeding all but the most productive peers”; “Written products are always on

time, and are consistently of such superior quality that most could be used as Department

exemplars”; “Characterized by management as typically assuming responsibility in a

broad range of situations where such responsibility was extraordinary, and where the

employee consistently acted ethically and productively”; and “Speaks clearly, concisely,

and tactfully to advance Department interests while applying exceptional active listening

to engage listener’s ideas.” Chow marked Gordon as meeting or sometimes exceeding

standards for the category “Exhibits initiative to resolve problems or take on tasks

deemed important by employee’s supervisor or commanding officer.”

Similarly, in the second review, Chow also marked that Gordon met or exceeded

standards with respect to the following categories pertinent to Chow’s assertions of

dissatisfaction with Gordon: “Produces work deemed important by employee’s

supervisor or commanding officer in a quantity which meets or exceeds explicit

supervisory or command expectations”; “Exhibits initiative to . . . take on tasks deemed

important by employee’s supervisor or commanding officer”; “Written work is always or

nearly always submitted on time”; and “Typically completed required assignments, tasks,

and other clear job requirements.” City argues on appeal that Chow was not required to

write “every shortfall” or concern in his evaluations of Gordon, but this argument was not

set forth in the separate statement or supported by any cited evidence. The two

performance reviews are more than sufficient to create a dispute with respect to City’s

asserted facts regarding Chow’s purported dissatisfaction with Gordon.

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In addition, when asked at his deposition about Gordon’s purported passive

resistance, Chow identified only two instances: formation of a cricket league and

production of a CTSOB goals poster. However, Gordon presented Downing’s testimony

at deposition that lack of a budget, a playing field, and other resources prevented the

formation of the cricket league, and Downing thought the goals poster was completed in

a timely fashion. In addition, we note that the first performance review includes, under

the category of “the employee’s most significant contribution to the Unit or Division and

the Department during this assessment period,” “the development of a youth cricket

team.” Thus, while Gordon may not have succeeded in forming a league, he apparently

formed a team, and Chow praised him for this in the performance review. Moreover,

Chow’s conclusion that Gordon was passively resisting performing assignments is

inherently speculative regarding Gordon’s mental state, and Gordon’s objection to the

pertinent portion of Chow’s declaration as speculative should have been sustained by the

trial court.

City also attempted to support Chow’s “significant concerns” about Gordon by

relying upon an assertion that Featherstone and Captain Horace Frank complained to

Chow that Gordon “claimed personal ownership of presentations he had prepared” and

“delayed and resisted turning [them] over to managers when asked.” The evidence cited

by City is Chow’s declaration, which identifies a single presentation regarding an

earthquake in Chile that was the subject of one call to Chow by Featherstone and another

by Frank. Thus, City’s factual assertion exaggerates the extent of the alleged misconduct

by referring to “presentations.” In any event, Gordon’s declaration created at least a

partial dispute with respect to this asserted fact. Gordon declared that upon request he

provided Frank with the presentation. He further declared he “had given the presentation

to Featherstone on several occasions,” but it is unclear whether this means he turned it

over to Featherstone or that Featherstone was in the audience when Gordon gave the

presentation. City has not addressed this inherent ambiguity. Because we must view the

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evidence in a light favorable to Gordon and liberally construe his evidence, we conclude

Gordon successfully disputed City’s factual assertion.

Yet another factual assertion urged by City in support of Chow’s “significant

concerns” about Gordon is Chow’s concern about Gordon’s “behavior towards other staff

members, including Chow’s secretary.” This assertion is, at best, only partially supported

by Chow’s declaration, the only evidence City cites. Chow declared, “Some of my other

staff members were also not comfortable with Gordon, including my secretary, Rosa

Ortega, who complained to me about an inappropriate angry outburst by Gordon.”

Nothing indicates any discomfort about Gordon felt by any staff members, including

Ortega, was based upon Gordon’s behavior toward those persons. Chow did not even

declare that Gordon directed his inappropriate angry outburst at Ortega. Notably, one of

Gordon’s additional material facts, supported by his declaration and undisputed by City,

established he worked in a cubicle directly outside Chow’s office, and we may infer

Gordon’s conversations with others, including Gordon’s side of telephone conversations,

were audible to others in the vicinity.

A related key aspect of City’s claim of legitimate nonretaliatory reasons with

respect to the aide position is that “[t]he Aide changes were decided in July, before

Downing or Chow had any knowledge of Gordon’s so-called ‘protected activity.’”

(Original boldface & italics.) City’s separate statement addresses this contention with

two purportedly undisputed facts asserting that Chow and Downing “discussed changing

[Gordon’s] role as Chow’s Aide” in “June or July of 2011, while [Gordon] was out on a

medical leave” and “decided to take [Gordon] out of the day to day operation of CTSOB

and have him focus instead on individual projects and programs . . . . This change of

focus did not involve any changes in [Gordon’s] . . . assignment title (Commander’s

Aide) . . . .” City cited as support only Chow’s declaration, which states: “In or about

June or July of 2011, while Gordon was out on a medical leave, I discussed my concerns

about Gordon with Chief Downing. We agreed that Gordon should be gradually

transitioned out of involvement in the day to day operations of CTSOB as my

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Commander’s Aide and into a role focused on individual special projects. This had to be

a gradual transition because I did not have anyone else to perform the Commander’s Aide

duties. This change of focus did not involve any changes in Gordon’s . . . assignment

title (Commander’s Aide) . . . .” Gordon objected to this paragraph of Chow’s

declaration on grounds including inadmissible hearsay. The trial court erred by failing to

sustain this objection, and we will not consider Chow’s declaration as establishing these

factual assertions. Chow’s declaration relates the content of his out-of-court conversation

with Downing, and City attempts to use the content of this conversation to prove the truth

of the matter asserted therein, i.e., Chow and Downing decided at the time of the

conversation to remove Gordon from Commander’s Aide duties. Moreover, both City’s

factual assertions and Chow’s declaration assert, somewhat in contradiction of the point

City is trying to make, that the course of action purportedly chosen by Chow and

Downing did not change Gordon’s “assignment title” of Commander’s Aide.

(2) The OIC position

With respect to City’s claim of legitimate, nonretaliatory reasons for not selecting

Gordon to fill the OIC position, City essentially relies on two theories: Downing was the

sole decision maker and had no knowledge of Gordon’s assistance to Garcia with his

FEHA claim, and Gordon was not more qualified for the position than Seguin because

Seguin had Community Relations Office (CRO) experience that Downing sought, while

Gordon lacked such experience. With respect to the first theory, City failed to establish

that Downing was unaware of Gordon’s assistance to Garcia by the time he selected

Seguin as OIC, which was either August 17 or 18. Downing’s lack of such knowledge

was not listed as a fact in City’s separate statement. Chow’s purported lack of knowledge

that Gordon “prepar[ed] a declaration in connection with Garcia’s lawsuit” (italics

added) was an undisputed fact, but mere ignorance about a declaration is not equivalent

to ignorance of all assistance. Gordon presented (and cited in his responsive separate

statement) Chow’s deposition testimony in which he admitted that he was aware in

August of 2011 that he learned that Garcia had filed a retaliation complaint, and

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sometime in the August 3 to August 12, 2011 time range he learned that Gordon had

spoken to Garcia. City failed to assert Downing’s lack of knowledge as an undisputed

fact. This omission is fatal to City’s theory that Downing acted without knowledge of

Gordon’s protected activity.

City’s theory that Gordon was not more qualified for the position than Seguin also

depended upon factual assertions that are either unsupported or disputed. First, City

attempts to characterize the CTSOB Liaison Section as “a community relations section,”

but the portions of the complaint and Chow’s declaration City cites do not support that

characterization. In addition, Gordon’s declaration squarely refutes that characterization.

Another key aspect of this theory is City’s assertion that Downing “from the outset . . .

envisioned bringing in a Sergeant who had experience supervising a divisional

Community Relations Office.” City cites Chow’s declaration in support of this assertion.

Although Chow’s declaration literally supports the fact, it is either hearsay or speculation

by Chow regarding Downing’s mental state. Gordon objected to this portion of Chow’s

declaration on grounds including hearsay and speculation, and the trial court erred by

failing to sustain that objection. These facts are key to City’s theory, and the dispute as

to the former and failure of City to support the latter with admissible evidence defeat

City’s theory.

Other facts supporting City’s theory are also either disputed or unsupported. For

example, City asserts the mission of the Liaison Section is “to conduct outreach to under-

represented, faith-based communities.” The evidence City cites reflects that this is part

of what the section does. Gordon disputed this fact, citing his own declaration, and set

forth his own additional fact, which is supported by Kozak’s declaration and is

undisputed by City, that “The purpose and mission of the Liaison Section was and always

has been to provide focused strategic counter-terrorism communications in support of the

counter-terrorism goals of the LAPD by conducting outreach to underrepresented faith-

based communities and diaspora communities.” Gordon also set forth, as an additional

fact that City does not dispute, that the Liaison Section is “not a community relations

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office as would be found in a patrol division. It is the liaison arm of the LAPD’s

[CTSOB], whose mission is to prevent the radicalization for jihad of at risk groups, and

the preparedness, training, and interface with those entities and/or groups who would fall

victim to such attacks.” Gordon further set forth a description of what his duties were

when he served as Acting OIC, and City did not dispute his assertion: “maintaining

deployment needs, continuing the Liaison Section mission in combating terrorism and

countering violent extremism, multi-agency interaction (local, state and federal levels),

developing public/private stakeholder partnerships, organizing and conducting meetings,

and public speaking.”

Gordon also asserts, as an additional fact, that the responsibilities of the Liaison

Section OIC position “require the individual holding the position to have a strong multi-

faceted background in counter-terrorism operations and programs (local, state and

national strategies); extensive knowledge in countering violent extremism . . . ;

specialized section/unit operations and supervision; extensive public speaking

experience; public and private sector outreach; and experience and knowledge of the

Terrorism Liaison Officer . . . program, the Suspicious Activity Reporting System . . .

program, and training development and delivery.” The declarations of Gordon and

Kozak support this fact. City attempts to dispute this fact by citing (1) a portion of

Downing’s deposition in which he addressed Seguin’s background, why it was not

important to him that Seguin lacked counter-terrorism experience, and why the CTSOB

performs “outreach” and (2) pages 150 to 152 of Downing’s deposition, which are not in

the appellate record and do not appear to have been contained in the moving, opposing,

or reply papers. While a jury might choose to credit Downing’s assessment of whether

the position required counter-terrorism experience over that of Kozak and Gordon, there

is clearly a dispute on this point sufficient to preclude summary judgment. Significantly,

it is undisputed that Gordon has extensive counter-terrorism experience and liaison work

in the counter-terrorism field, and Seguin had little or none. Thus, if the position requires

counter-terrorism experience, Gordon was more qualified than Seguin. Moreover,

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Gordon established without dispute that he had experience in “community and

public/private outreach” and had “developed a Young Muslim Leaders Group.”

(3) Timing and other factors supporting an inference of retaliation

We further note that the timing and nature of several acts and events, together with

identity of the decision makers and Gordon’s highly favorable performance reviews, also

serve to raise a triable issue of fact regarding whether City’s purported nonretaliatory

reasons and support Gordon’s claim of retaliation. (Sada, supra, 56 Cal.App.4th at

pp. 156–157.) It is undisputed that Gordon spoke to Garcia’s attorney in July or August

of 2011 and she used the information Gordon provided to amend Garcia’s DFEH

complaint on August 3, 2011. That amendment expressly refers to Garcia being denied a

position as a supervisor in the CTSOB Liaison Section, even though highly

recommended by Gordon as the only qualified officer. On August 12, 2011, Garcia’s

attorney moved to amend the complaint in Garcia’s civil suit to allege that Chow asked

Gordon to research and recommend the most qualified person to supervise the Liaison

Section; Gordon recommended Garcia, but Chow said, “‘no, not that guy.’” Garcia’s

attorney served Deputy City Attorney Kelly Crockett Gales with the proposed amended

complaint on August 12, 2011. Chow admitted in his deposition that he was aware in

August of 2011 that he learned that Garcia had filed a retaliation complaint and sometime

in the August 3 to August 12, 2011 time range Chow had a conversation with Gales and

assumed that Gordon had spoken to Garcia.

The following facts are also undisputed: Gordon returned to work on August 16,

2011, after being on medical leave. That day, Chow called Gordon “into his office and

stated angrily, ‘Have you spoken to the City Attorney yet?’” After Gordon inquired,

Chow said, “‘You told Garcia that I didn’t select him for the Liaison OIC and now he’s

suing me and I have to meet with the City Attorney to clear it up.’” Soon thereafter,

Gales phoned Gordon and asked to meet with him regarding Garcia. The same day,

Gordon discovered he had been removed as a proxy from Chow’s computerized calendar.

The next day (August 17, 2011) Gordon interviewed for the OIC position, with Chow and

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Captain William Sutton as the interviewers. Chow “still appeared upset [and] began the

interview curtly.” He also asked Gordon about a 13-year-old complaint. The next day

(August 18, 2011) Chow told Gordon that he was not selected as OIC and he would no

longer be Chow’s aide. Chow also stated that Gordon “could no longer be trusted

because of the Garcia incident.” As of August 18, 2011, Chow removed Gordon from his

duties as Acting Commander’s Aide and Acting OIC.

Gordon also established a dispute with respect to City’s assertion that Chow spoke

to Gordon daily after that time, and City failed to cite evidence that actually supported its

assertion that Chow was unaware Gordon felt ostracized.

b. Adverse employment action

With respect to its theory Gordon suffered no adverse employment action, City’s

theories are that Gordon’s rank, pay, and benefits did not change, the new duties to which

he was assigned were consistent with his rank and skills and were coveted assignments,

and he cannot rely upon his claim of being ostracized because he failed to report it to

management. City fails to explain the final point or offer any supporting authority, and

Gordon created a dispute as to that theory by citing his declaration, in which he states he

attempted to discuss with Chow being ostracized, but Chow did not want to talk to him.

Gordon also established a dispute with respect to each of the remaining theories.

City attempted to establish that the change in Gordon’s duties did not result in any

change in Gordon’s rank, pay, or benefits, but Gordon disputed City’s factual assertion,

citing his own declaration in which he stated he lost overtime compensation and a take-

home car. Gordon also set forth his own factual assertion that as a result of the change of

his duties beginning August 18, 2011, he lost overtime compensation and a “dispersal

parked/take-home car.” The City did not dispute this fact. This, alone, is sufficient to

establish a triable issue of material fact. City argues the overtime and take-home car

were solely attributable to the OIC position. Even if we were to overlook City’s failure

to make such a factual assertion in its separate statement and support it with admissible

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evidence, Gordon’s retaliation claim is based in part on his nonselection as OIC. Thus,

the loss of overtime and a car are an adverse employment action at issue in this case.

City made no attempt to directly negate Gordon’s allegation that City’s actions

impaired his promotion and future income opportunities. It instead asserted that two of

the positions and projects to which he has been assigned since August 18, 2011, are

“coveted.” However, Gordon established a dispute with respect to the “coveted”

character of each such assignment.

We decline to address theories of City’s motion upon which the trial court did not

rely. City expressly based each of its theories upon the same 71 purportedly undisputed

material facts, many of which are disputed and unsupported by the cited evidence. Thus,

according to City’s own reasoning and representation, the disputed and unsupported facts

are material to, and thus preclude summary judgment on the basis of, each theory. We

note City was also not entitled to summary adjudication, as its first “issue” was its

entitlement to summary judgment and its second “issue” merely addressed the scope of

conduct for which Gordon might recover. Issues for adjudication must completely

dispose of an entire cause of action, affirmative defense, claim for damages, or issue of

duty, not merely winnow the scope of acts alleged within a cause of action. (Code Civ.

Proc., § 437c, subd. (f)(1).)

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DISPOSITION

The judgment is reversed, without prejudice to future motions. Appellant Gordon

is awarded his costs on appeal.

NOT TO BE PUBLISHED.

LUI, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.

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