The opinion
Filed 10/1/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PATRICK NEJADIAN, B285016
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC594904)
v.
COUNTY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Susan Bryant-Deason, Judge. Reversed.
Schuler & Brown, Tina Javaherian, Jack Schuler and Irina
Rosenberg for Defendant and Appellant.
The Finson Law Firm, Lowell W. Finson; Lenze Lawyers and
Jennifer A. Lenze for Plaintiff and Respondent.
A jury found in favor of plaintiff Patrick Nejadian and against his
employer, defendant County of Los Angeles (County), on Nejadian’s
causes of action for retaliation in violation of Labor Code1 section
1102.5, subdivision (c) (hereafter, section 1102.5(c)), and for retaliation
in violation of the Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12940 et seq.), and awarded Nejadian almost $300,000 in
damages.2 County appeals, raising numerous issues as to both causes
of action, including that Nejadian failed to present sufficient evidence to
support the jury’s verdict on both claims. We conclude that County’s
sufficiency of the evidence arguments have merit.
Section 1102.5(c) prohibits “[a]n employer, or any person acting on
behalf of the employer, . . . [from] retaliate[ing] against an employee for
refusing to participate in an activity that would result in a violation of
state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation.” We hold that to prevail on a claim
under this provision, the plaintiff must identify both the specific activity
and the specific statute, rule, or regulation at issue; the court must then
determine the legal question whether the identified activity would
result in a violation or noncompliance with the identified statute, rule,
or regulation, and, if so, the jury must determine the factual issue
whether the plaintiff was retaliated against for refusing to participate
in the identified activity. In the present case, the trial court declined to
1 Further undesignated statutory references are to the Labor Code.
2 The trial court subsequently reduced the amount of damages by
approximately $40,000.
2
make the initial legal determination. Although this ordinarily would
require a reversal and remand for retrial, we find no remand is
necessary because Nejadian failed to present sufficient evidence at trial
to establish that any acts he was asked to perform would result in a
violation of or noncompliance with any identified state, federal, or local
statute, rule, or regulation. Therefore, County is entitled to judgment
on the section 1102.5(c) retaliation claim.
With regard to Nejadian’s FEHA retaliation claim, the jury was
instructed that Nejadian could establish that claim by proving that
County subjected him to an adverse employment action in retaliation
for “refusing to participate in activities that would violate state, federal,
or local statutes, rules, or regulations and/or for complaining about age
discrimination and retaliation in violation of FEHA.” Because this
instruction erroneously allowed the jury to find in favor of Nejadian
even if no violation of FEHA was committed, the judgment on this claim
must be reversed. As with the section 1102.5(c) claim, however, no
remand is required here. Instead, we find that County is entitled to
judgment in its favor because Nejadian failed to present evidence from
which a reasonable jury could conclude that any adverse employment
action he suffered was motivated by retaliation for complaints he made
regarding discrimination or other activity protected by FEHA.
Accordingly, we reverse the judgment and direct that judgment be
entered in favor of County on Nejadian’s complaint.
3
BACKGROUND
A. The Operative Complaint
The first amended complaint, which was the operative complaint
at the start of the trial, alleged causes of action for discrimination based
on national origin and/or race, discrimination based on age, hostile work
environment, and retaliation in violation of FEHA. Before trial, the
trial court granted County’s motion for summary adjudication as to the
first and third claims, leaving only the age discrimination and FEHA
retaliation claims for resolution by trial. Those claims were based upon
the following alleged facts.
Nejadian began his employment with County in 1990. At the time
of the incidents at issue, Nejadian was a chief environmental health
specialist (EHS) in the Environmental Health Division of the Los
Angeles County Department of Public Health. Nejadian alleged that
beginning in 2008, after Angelo Bellomo became director of the
Environment Health Division, Nejadian was subjected to verbal abuse
and singled out for undue criticism by Bellomo on account of his
national origin and/or race, and was denied promotions to manager
positions in 2009 and 2015, and to an acting manager position in 2014,
on account of both his age and his national origin and/or race. He
alleged that he complained to management, including Bellomo, about
the discrimination and harassment, but was subjected to further
adverse employment actions (including denial of multiple transfer
requests) in retaliation for complaining. He also alleged that he filed
the substance of the claims alleged in the complaint with the
Department of Fair Employment and Housing (DFEH) and/or the Equal
4
Employment Opportunity Commission (EEOC) and had received right
to sue letters from those agencies.
In his cause of action for age discrimination, Nejadian alleged that
he was over the age of 40 years old,3 and therefore was a member of a
protected class, and that he was fully competent and qualified to
perform the duties of the positions to which he was denied promotions.
He identified the denials of multiple promotions as the adverse
employment actions to which he was subjected due to age
discrimination.
In the retaliation cause of action, Nejadian alleged that he
engaged in protected activity when he complained to management at
County about workplace discrimination he suffered due to his national
origin and/or race. He asserted that County subjected him to adverse
employment actions—which he identified as “including but not limited
to, the denial of multiple transfer requests”—in retaliation for engaging
in that protected activity.
During the trial—after more than two days of testimony, which
included all of Nejadian’s testimony except with regard to damages, and
a half-day of testimony by Bellomo (the Director of Environmental
Health)—Nejadian’s counsel moved to amend the complaint to add a
cause of action for retaliation in violation of section 1102.5(c). County
objected on the grounds that Nejadian failed to provide any reasonable
excuse for his delay in adding the claim and that County would be
prejudiced because it did not have any opportunity to conduct discovery
3 Nejadian was 61 (almost 62) at the time of trial in April 2017.
5
or designate an expert witness, and because the elements of a claim for
section 1102.5(c) retaliation are fundamentally different than the
elements of a claim for FEHA retaliation. Finding no prejudice to
County, the trial court granted the motion, and Nejadian filed a second
amended complaint that included the former age discrimination and
FEHA retaliation claims, plus a claim for retaliation under section
1102.5.4
B. The Trial
1. Evidence Presented5
a. Nejadian’s Testimony
Nejadian was the first witness called at trial. At the time of trial,
he worked at a district office of the Environmental Health Division,
supervising inspectors who inspected restaurants, swimming pools, and
apartment buildings. He testified about his history with the
Environmental Health Division, where he started in 1990 as an EHS-1,
4 Although the second amended complaint did not specify the subdivision
of section 1102.5 under which the claim was brought, the trial court
ultimately ruled that the case would go to the jury only under subdivision (c).
5 In our summary of the evidence presented at trial, we have omitted
evidence that is relevant only to Nejadian’s age discrimination claim (because
the jury found County not liable on that claim), as well as many of the details
regarding the alleged adverse employment actions Nejadian purportedly
suffered before he filed his claims with the EEOC and DFEH (because those
details are not relevant to our discussion). Our primary focus is on the
evidence related to Nejadian’s assertion that he was asked to violate a
federal, state, or local statute, rule, or regulation, and the evidence related to
his assertion that he was retaliated against for activity protected by FEHA.
6
and was regularly promoted until 2002, when he was promoted to a
chief EHS position in the mountain and rural water and sewage
program (which was known as the land use program). The land use
program dealt with private wells and on-site waste water treatment
systems (i.e., septic systems) on properties for which there are no public
water or sewer systems.
After working in the land use program for several years, Nejadian
transferred to a different program, but returned to the land use
program in March 2009. He testified that he had been aware before he
transferred back to that program that contractors and/or landowners
(referred to as the “industry”) had been complaining that there were
inconsistencies from office to office within land use regarding how their
plans were treated and what requirements were imposed. Nejadian
took it upon himself to develop guidelines that would standardize the
requirements for septic systems across all offices. By the end of 2009,
he had completely rewritten the former set of guidelines and procedural
documents for on-site wastewater treatment systems, and created a
comprehensive document entitled “Conventional and Nonconventional
On-Site Wastewater Treatment Systems Requirements and Procedures
Manual” (referred to as “the Guidelines”), which is currently used (after
some further revisions) throughout Los Angeles County and is posted on
the Department of Public Health’s website.
For purposes of the issues in this appeal, Nejadian’s troubles
began in 2010. Nejadian testified that after the Station Fire destroyed
16 or 17 homes in the Tujunga Canyon area, a contractor who was
working with some of the homeowners on their efforts to rebuild their
7
homes complained to Director Bellomo that Nejadian and his staff
refused to accept their existing septic systems because Nejadian
believed they were in violation of “the Code.”6 Each time the contractor
complained, Bellomo called Nejadian to his office to discuss the
complaint, and Nejadian explained that the contractor’s request had
been denied because it violated “the Code” or the Guidelines. According
to Nejadian, Bellomo told him to disregard some of the requirements of
“the Code” (which requirements Nejadian did not specify) and sign off
on the contractor’s requests. Nejadian declined to do so, but the
projects at issue ultimately were approved by Nejadian’s managers or
supervisors.
Nejadian also testified that he was asked to revise a set of
guidelines that specifically addressed rebuilding structures following a
fire or other natural disaster (the fire-rebuild guidelines) and to
establish new rules for rebuilding. He testified that he revised the fire-
rebuild guidelines, in which he did not allow rules that he believed were
less protective than “what the County Code provides,” but management
amended them, “water[ing] down the requirement[s]” he had drafted,
and “disregard[ing] the Code sections that were involved.” Nejadian
6 Throughout most of his testimony, Nejadian referred to “the Code,”
without identifying any specific provision. At one point, however, he
narrowed it down to title 28 of the “County Code.” At the end of his
testimony, his counsel showed him two exhibits, which Nejadian agreed were
“the Codes” that he was enforcing. Both exhibits consisted of a portion of a
set of provisions identified as “Appendix K” (entitled “Private Sewage
Disposal Systems”); one was from the 2007 version of title 24, part 5 of the
California Code of Regulations and the other was from the 2011 version of
title 28 of the Los Angeles County Code.
8
expressed his disagreement with management’s amendments to
Bellomo and other managers, telling them they violated the “L.A.
County Code.”
Nejadian testified that before these issues arose he had received
very good performance evaluations. In his performance evaluation for
2009,7 for example, his manager gave him high marks in every
category; he was rated “outstanding” in one category and “very good” in
the others. In his performance evaluation for 2010, however, his
ratings were reduced in several categories; he received no “outstanding”
rating, and was rated “competent” (rather than “very good”) in three
categories, with an overall rating of “competent.” In the narrative
portion of the 2010 evaluation, his supervisor wrote: “During the wild
fires in County, [Nejadian] was requested to establish some revised
guidelines for property owners to utilize in expediting the ‘after-fire’
rebuild process. When these revised guidelines were amended and
withdrawn by management, [Nejadian] lost interest in continuing the
effort. Mr. Nejadian is not receptive to guidance or instruction on how,
when or where to proceed to make changes in his program. When
guidance or instruction was offered, he was exceptionally [resistant] to
change. [¶] . . . [¶] Most recently, the Bureau Director suggested some
changes in interpretation of the Plumbing Code. [Nejadian] continued
to argue the point, communicated with outside sources to refute the
decision even after County Counsel agreed and approved the change.”
7 Nejadian received annual performance evaluations; the time periods
began on October 1 and ended on September 30 of each year.
9
Due to his disputes with management over the requirements
under the Code, Nejadian asked to be transferred out of the land use
program. His transfer request was not accommodated. He complained
to Bellomo, telling him that he wanted to transfer because Bellomo’s
approvals of systems that were not in compliance with “the Code” was
making his job much more difficult than it should be. He continued to
file transfer requests every six months, in accordance with Department
policy, until he finally was transferred to the Glendale office of the
Bureau of District Surveillance and Enforcement in January 2014.8
In the meantime, Nejadian’s annual performance evaluations
returned to prior levels. In 2011 and 2012 he received “very good” in all
categories. In 2013 and 2014 he received “outstanding” in two
categories and “very good” in the rest. He received an overall rating of
“very good” in all four years.
In 2014, there was a posting for an EHS manager position.
Nejadian, who had all the required qualifications as well as the desired
qualifications identified in the posting, signed up for the exam. The
exam consisted of two parts: (1) an evaluation of training and
experience based upon the information on the application and
supplemental application; and (2) an oral interview covering training,
8 On cross-examination, Nejadian admitted that he had been offered a
transfer earlier but had turned it down because it was not for one of the
preferences he had listed in his transfer request. Bellomo testified that
Nejadian’s transfer requests could not be accommodated until he could find a
suitable person to take Nejadian’s position. Bellomo said, however, that he
did offer Nejadian a transfer at one point, but Nejadian did not accept the
transfer.
10
experiences, personal fitness, and general ability to perform the duties
of the position. Candidates who achieved a passing score of 70 percent
or higher were added to the eligible register, which was used to fill
vacancies. During the months the exams were being conducted, some
manager vacancies were filled on an “acting” basis through out-of-class
appointments; Nejadian did not receive one of those appointments.
Nejadian took the manager exam, but learned in January 2015 that he
was not chosen for the position. He went to the human resources
department to look at his score and saw some discrepancies, so he filed
an appeal. When that appeal was denied, Nejadian filed a complaint
with the EEOC.
Nejadian’s EEOC complaint, which was filed on February 2, 2015,
identified three actions he asserted were discriminatory: the denial of
promotion to an EHS manager position in 2009 (which he explained he
included to demonstrate the pattern of discrimination), the denial of
promotion to an EHS manager position in 2015, and the denial of an
out-of-class acting manager opportunity in 2014. Nejadian also stated
in his EEOC complaint that Division Director Bellomo and the
Assistant Division Director, Terri Williams, demonstrated hatred
toward him and repeatedly made demeaning comments to him. In
addition, Nejadian provided examples of conduct by Bellomo and others
that he asserted was in retaliation for Nejadian expressing his
disagreement with staffing decisions (e.g., requiring Nejadian to cover
two offices, reducing field staff, etc.) and his displeasure at Bellomo’s
disregard of departmental policies with regard to the fire-rebuild
guidelines. Finally, Nejadian stated that after the incident regarding
11
the fire-rebuild guidelines, Bellomo retaliated against him by
disregarding the transfer requests he submitted every six months.
On the same day Nejadian filed his EEOC complaint, he also filed
a complaint with the DFEH, asserting that he was discriminated
against when he was denied promotion to acting Envision Connect
manager in April 2014, and was denied promotion to EHS manager in
January 2015. Seven months later, Nejadian (now represented by
counsel) filed another complaint with the DFEH. This new complaint
was substantially similar to the earlier EEOC complaint.
Finally, Nejadian testified that there were three vacancies in EHS
manager positions after he filed the EEOC and DFEH complaints. He
wrote to the current Director, Terri Williams (Bellomo had been
promoted, and Williams moved into his former position), to express his
interest in being placed as an acting manager for one of those positions.
He was not placed in any of the positions. Instead, two of the positions
were filled by other employees, both of whom are younger than
Nejadian; the remaining position was not filled.
b. Bellomo’s Testimony
Bellomo was hired by County as the Director of Environmental
Health in January 2008. He testified that Nejadian came to his
attention in around 2010 due to a number of complaints that were made
by industry individuals about how the land use department was
handling approvals for properties they were trying to rebuild after the
Station Fire. Bellomo explained that generally, when a property owner
wants to remodel, expand, or rebuild a home with a septic system, the
12
owner has to upgrade the system to the current standards. After the
wildfire, the County Board of Supervisors asked the Department of
Public Health to find a way to assist homeowners who had lost their
homes in the fire. In response, the Department developed a fire-rebuild
policy that allowed the affected homeowners to keep their same septic
systems, without having to upgrade to current standards, when they
rebuilt their houses. According to Bellomo, Nejadian expressed his
displeasure with that policy, believing that the systems should be
brought up to current standards.
Bellomo explained that the Department developed this fire-rebuild
policy with input from the land use program and other advisors. The
fire-rebuild policy is set forth in fire-rebuild guidelines, which describe
three different procedures, depending upon whether the owner is (1)
rebuilding an equivalent structure and the originally approved floor
plan is available for review; (2) rebuilding an equivalent structure and
the originally approved floor plan is not available for review; and (3)
rebuilding a new or modified (expanded) floor plan. Under each
scenario, the guidelines list minimum requirements and the documents
and information that must be submitted. The guidelines also set forth
additional requirements for all scenarios, and note that a full feasibility
study and compliance with current code requirements would be
required if the septic system was not adequately sized to fully
accommodate the proposed number of bedrooms, number of units,
and/or plumbing fixtures, or the system was not functioning adequately,
or the system was not code-compliant at the time it was installed.
13
Bellomo testified that the policy was reviewed by County Counsel
to ensure that it was consistent with applicable laws. He stated that he
was told the fire-rebuild policy was allowed under both Appendix K of
the California Plumbing Code (which Nejadian had identified as the
“Code” he was trying to enforce),9 as well as section 101.3.1.1 of title 28
of the Los Angeles County Code that were in effect at the time of the
events in question.10
Finally, Bellomo was asked by Nejadian’s counsel about a specific
case involving a homeowner, Duncan Baird, who sought approval to use
the existing septic systems11 for the rebuilding of his house, which had
been destroyed in the wildfire. In that case, the Director of
Environmental Protection Bureau, Alfonso Medina, wrote a letter to
Baird following Baird’s meeting with Medina and Nejadian regarding
Baird’s request. The letter addressed issues regarding the floor plan of
9 Former Appendix K of the California Plumbing Code provided in
relevant part that “[t]he Authority Having Jurisdiction may grant exceptions
to the provisions of this appendix for permitted structures that have been
destroyed due to fire or natural disaster and that cannot be reconstructed in
compliance with these provisions provided that such exceptions are the
minimum necessary.” (Cal. Code Regs., tit. 24, pt. 5, former App. K, ¶ K 1 (A)
(2007).)
10 Section 101.3.1.1 of title 28 of the Los Angeles County Code provides in
relevant part: “Any plumbing system may have its existing use, maintenance
or repair continued when the Authority Having Jurisdiction determines that
its use, maintenance or repair is in accordance with the original design and
no hazard to the public health, safety or welfare has been created by such
system.”
11 Baird’s property had two septic systems.
14
the home that existed at the time of the fire, as well as the existing
septic systems’ compliance with the code in existence at the time of
their installation.
According to the letter, Baird told Medina and Nejadian that he
wanted to replicate the previous floor plan of three bedrooms and a
small office. However, the septic system inspection report Baird
submitted indicated that the house was built in 1939/1940 and
contained only two bedrooms and two bathrooms. Medina informed
Baird that when Baird was not able to provide any documentation
showing what he contended was the floor plan that existed at the time
of the fire, the Department conducted searches for additional property
information, but only found information that was consistent with the
inspection report of two bedrooms and two bathrooms.12 Medina wrote
that he discussed the issue regarding the previous floor plan with
Bellomo, and it was decided that “the Department will yield to your
email of May 28th and your statement that the house consisted of three
bedrooms and [a] small office.”
Addressing the issues regarding the existing septic systems,
Medina wrote that the Department disagreed with Baird’s inspector’s
conclusion that the systems were structurally sound. In addition, the
Department concluded that the systems were not fully compliant with
the plumbing codes from the 1940s and 1950s. Therefore, the
12 We note that in an email Nejadian sent Baird some months earlier,
Nejadian stated that “most of the records that were kept in our district office
were destroyed in a fire,” and they were able to salvage only a handful of
records relating to properties in the area.
15
Department made several recommendations for modifications to the
systems, including the replacement of one of the tanks with a tank that
was compliant with the 1940 Code. Medina also stated that the
Department was willing to accept the installation of a new tank without
the full feasibility study required under the fire-rebuild guidelines, as
long as certain documentation was submitted and inspections were
made.
In questioning Bellomo about Medina’s letter, Nejadian’s counsel
focused on the part that addressed the size of the house that burned
down. Counsel asked if Bellomo violated the law by ignoring the plans
that showed the house had had two bedrooms rather than three
bedrooms and an office. Bellomo replied that the letter merely showed
that there was a dispute between the Department and the homeowner
regarding what size the house had been. He explained that although
there are a lot of decisions the Department makes that are based upon
very definitive rules and regulations, some decisions are based upon
discretion. And when resolving a dispute in which the homeowner
disputes the accuracy of the plan that is on file, saying that he or she
had filed a subsequent plan and no longer has a copy, it is within the
discretion of the program chief and his or her supervisor as to how to
handle it.
c. Other Relevant Testimony
Of the remaining witnesses, only a few provided testimony
relevant to the issues on appeal.
16
i. Nejadian’s Complaints of Discrimination
The only witness who testified that Nejadian complained to him or
her that he was subjected to discriminatory treatment was Linda
Ramirez. Ramirez, who was an EHS manager but was not Nejadian’s
direct supervisor at the time, testified that Nejadian told her a few
years before trial that he felt he was discriminated against based upon
his age. She said they discussed it as “professional coworkers.” She did
not report Nejadian’s statement regarding the alleged discrimination
because it was not a formal complaint.
Another EHS manager who worked with Nejadian at times, Aura
Wong, testified that Nejadian told her that Bellomo treated him
differently than he treated other people, but he never told her that he
believed it was because of his age or some kind of retaliation.
ii. Failure to Appoint Nejadian to Acting Manager in 2015
Shelli Weekes, the Director of Human Resources for the
Department of Public Health, testified that the Environmental Health
Division attempted to post a bulletin for an acting EHS manager in
2016. Weekes, who had taken over as Director in November 2015 (she
previously was an administrative services manager in the County
Department of Mental Health), instructed the Division to take the
bulletin down, explaining that “posting something is typically
something you do for an actual exam.” She testified that “to post for an
acting position kind of gives the implication that you’re offering
somebody a permanent position, even if it’s a temporary assignment.
17
And I wouldn’t want to place somebody in a situation where they’re
assuming that they’re being promised something.”
Diana Aguilar is a staff analyst for the Environmental Health
Division who is designated as the Environmental Health administrative
liaison; one of her responsibilities is to liaison with the Human
Resources department. She testified that before Weekes was appointed
Director of Human Resources, when the Environmental Health Division
had a vacancy it wanted to fill temporarily, it would send out a bulletin
announcing an out-of-class assignment and conduct interviews for the
temporary position. However, when the Division attempted to send out
a bulletin for an out-of-class assignment to temporarily fill an EHS-4
position after Weekes became Director, the Human Resources
department told the Division that it could not use that process.
Therefore when, in 2016, the Division sought to temporarily fill two
EHS manager positions, Aguilar contacted Human Resources for
instructions.
Aguilar testified that Human Resources gave her a list of options
and instructed her to start with the first option to see if that met her
needs and if not, to try the next options one at a time. The first option
was to gather all the performance evaluations and determine which
employees received an overall “outstanding” rating. Aguilar testified
that she looked at the 2014 and 2015 evaluations; she said that she did
not consider the 2016 evaluations because some of them had not been
submitted yet, so she thought it would be unfair to use them. Only two
employees had received overall ratings of “outstanding.” Both were
offered, and accepted, the acting EHS manager positions.
18
iii. Re-rating Nejadian’s 2016 Performance Evaluation
In November or December 2016, Linda Ramirez, who was
Nejadian’s supervisor at the time, submitted to her director, Brenda
Lopez, Nejadian’s annual performance evaluation for the period that
ended in September 2016. When Lopez reviewed the evaluation, she
noticed there were comments in it regarding some projects Nejadian
had done with land use, which Ramirez had cited in support of the
“outstanding” rating she had given Nejadian in one category. She
thought that was odd because Nejadian was not in land use during that
rating period; he was in district surveillance and enforcement. She was
concerned because it had been decided that if Nejadian was going to
work on issues in land use he would do it on overtime, and it should
have been discussed with Lopez beforehand. Because she did not recall
having a discussion about it, she spoke to the branch director of the
environmental protection program, to ask if she recalled Nejadian
working on some land use issues during his 2016 rating period. The
branch director did not believe he had done any work with land use
during that time, but she was not sure. Lopez then called Ramirez and
asked if she had emails or other documents to show that Nejadian had
done land use work during the rating period.
In the meantime, Lopez pulled Nejadian’s evaluation from the
prior rating period (i.e., the 2015 evaluation) and saw that the narrative
portion was almost identical to the 2016 evaluation. She told Ramirez
that the two evaluations were virtually identical, and asked if the
things she wrote about really happened during the 2016 rating period;
19
she asked if Ramirez had any documentation to verify what she wrote
about. In response, Ramirez sent Lopez some emails showing dates and
times that Nejadian had corresponded with someone regarding land use
work. After she received that information, Lopez told Ramirez to put
those dates and times in the evaluation and resubmit it. When Ramirez
resubmitted the evaluation, she had changed the “outstanding” rating
she had given Nejadian in one category, and instead rated him “very
good.” Lopez testified that she did not tell Ramirez to change those
ratings. Ramirez, however, testified that Lopez told her that if she
could not substantiate the “outstanding” rating with significantly more
support, she should reconsider her rating.
2. Post-trial Motions, Jury Instructions, Deliberations and Verdict
Following the close of evidence, the trial court heard County’s
motions for nonsuit on the section 1102.5(c) retaliation claim and
directed verdict on the FEHA retaliation claim. During the argument
on the motion for nonsuit, counsel for County argued that Nejadian
failed to present sufficient evidence to show any violation of a rule or
statute, and noted that the issue whether there was an actual violation
of law was one that should be decided by the court rather than the jury.
During the argument on the directed verdict, the trial court observed
that counsel for both parties focused on the filing of the EEOC
complaint as the basis for the retaliation, while the court saw the
evidence as showing that the retaliation arose from the disagreement
between Nejadian and Bellomo regarding the fire-rebuild policy.
Counsel for County explained that the disagreement over the fire-
20
rebuild policy was not a protected act that could be subject to a FEHA
retaliation claim, but the court disagreed.
The court denied both motions, and turned to the jury
instructions, specifically, what protected act would be identified in the
instruction for the FEHA retaliation claim. Nejadian submitted a
proposed instruction that described the protected activity for which
County retaliated as “refusing to participate in activities that would
violate state, federal, or local statutes, rules, or regulations and/or for
complaining about age discrimination and retaliation in violation of
FEHA with a government agency.” County’s counsel objected to the
inclusion of the reference to the refusal to violate statutes, rules, or
regulations, explaining that that activity is not an activity protected
under FEHA and therefore should not be included in the FEHA
retaliation instruction. The court overruled the objection, and
instructed the jury with Nejadian’s proposed instruction.
Turning to the instructions for the section 1102.5(c) retaliation
claim, counsel for County again argued that the issue whether there
was a violation of a statute, rule, or regulation was an issue of law for
the court to determine. The court disagreed, stating that it was
instructing the jury with the law, i.e., a portion of Appendix K of title
24, part 5, of the California Code of Regulations and section 101.3.1.1 of
title 28 of the Los Angeles County Code that were in effect at the time
of the dispute at issue.
Despite the trial court’s overruling of County’s objection to
including the refusal to violate a statute, rule, or regulation in the
FEHA retaliation instruction, the FEHA retaliation questions on the
21
special verdict form given to the jury referred to only Nejadian’s
complaint concerning age discrimination as the motivation for County’s
alleged retaliation. Question 4 on the verdict form asked, “Did the
County of Los Angeles take an adverse employment action against
Patrick Nejadian in retaliation for his complaint concerning
discrimination based on age?” Question 5 asked, “Was Patrick
Nejadian’s complaint concerning discrimination based on age a
substantial motivating reason for the County of Los Angeles’ decision to
take an adverse employment action against Patrick Nejadian?”
During deliberations, the jury sent a question asking, “What is the
significance of the difference between questions 4 and 5[?] It seems like
the same questions phrased differently.” Discussing the jury’s question
with counsel, the trial court suggested that it could just refer the jury to
the FEHA retaliation instruction. Counsel for County noted that
County had objected to that instruction because it mixed the FEHA
claim with the section 1102.5(c) claim, and County continued to have
that same objection. After conferring with Nejadian’s counsel, counsel
for County suggested that the court simply tell the jury that question 4
had to do with whether there was retaliation, and question 5 had to do
with whether the complaint about age discrimination was a substantial
motivating factor for the retaliation. The court declined the suggestion,
and instead directed the jury to the instructions on “substantial
motivating reason explained” and on the FEHA retaliation claim.
The jury returned a verdict, finding against Nejadian on his age
discrimination claim, but finding in favor of him on his FEHA
retaliation and section 1102.5(c) retaliation claims. It awarded
22
$31,033.95 in past economic damages and $262,924.12 in future
economic damages. County moved to reduce the award of future
economic damages, which the trial court granted, reducing that portion
of the award to $224,931.81. County also moved for a new trial based
upon juror misconduct (a juror purportedly slept through portions of the
trial and deliberations) and excessive damages. The trial court denied
the motion. County timely filed a notice of appeal from the judgment.
DISCUSSION
As noted, County raises several issues on appeal as to each claim
for which it was found to be liable. In light of our conclusion that
Nejadian failed to present sufficient evidence to support each claim, we
will limit our discussion to those issues that relate to that conclusion.
A. Section 1102.5(c) Retaliation Claim
Section 1102.5, a so-called whistleblower statute, provides that an
employer, or person acting on behalf of the employer, is prohibited from
retaliating against an employee for certain acts. Subdivision (b)
prohibits retaliation against an employee for disclosing information to
certain parties “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.” (§ 1102.5, subd. (b).) Subdivision (c)
prohibits retaliation against an employee “for refusing to participate in
an activity that would result in a violation of state or federal statute, or
23
a violation of or noncompliance with a local, state, or federal rule or
regulation.” (§ 1102.5(c).)
On appeal, County notes that under section 1102.5(c), Nejadian
was required to prove that the conduct he refused to participate in—
approving rebuild plans based upon the fire-rebuild guidelines as
interpreted by Medina and/or Bellomo—would result in an actual
violation of or noncompliance with a local, state, or federal statute, rule,
or regulation. County contends that judgment on his section 1102.5(c)
retaliation claim must be reversed because Nejadian failed to present
evidence that any approval he was told to give would result in a
violation of any statute, rule, or regulation. We agree that Nejadian
failed to present that evidence. But before we address that issue, we
must first address who decides whether the asserted activity would
violate a statute, rule, or regulation.
Unlike retaliation under subdivision (b) of section 1102.5, in which
the employee must show only that he or she reasonably believed that
there was a violation of a statute, rule, or regulation, section 1102.5(c)
requires a showing that the activity in question actually would result in
a violation or noncompliance with a statute, rule, or regulation. That is
a quintessentially legal question. No findings of fact are needed to
determine the question, because the question is limited to whether the
activity that the plaintiff alleges he or she refused to participate in
would violate a statute, rule, or regulation. Because that is a question
of law, the court is required to make that determination. Once it is
determined that the activity would result in a violation or
noncompliance with a statute, rule, or regulation, the jury must then
24
determine whether the plaintiff refused to participate in that activity
and, if so, whether that refusal was a contributing factor in the
defendant’s decision to impose an adverse employment action on the
plaintiff.13
Of course, for the court to be able make the legal determination,
the employee must identify what specific activity he or she refused to
participate in and what specific statute, rule, or regulation would be
violated by that activity. In this case, Nejadian mostly referred to the
activities in generalities, with two exceptions.
The first exception involved a contractor, Cliff Jones, who was
working for several homeowners who were affected by the wildfire.
Nejadian testified that Jones wanted Nejadian to “allow the
homeowners to rebuild with the existing system[s],” even though some
of the systems needed to be upgraded. The only example for which he
provided any specific evidence, however, involved a proposed
installation of a new spa on a property in Altadena. According to a
string of emails Nejadian introduced into evidence, Nejadian declined to
give his approval unless the homeowner conducted testing to prove that
13 We note that CACI No. 4603, the jury instruction setting forth the
essential factual elements for claims under both subdivisions (b) and (c) of
section 1102.5, instructs that the plaintiff must prove that his or her
participation in the specified activity would result in a violation of a state or
federal statute or a violation of or noncompliance with a local, state, or
federal rule or regulation. We urge the Committee on Civil Jury Instructions
to include in the “Directions for Use” an explanation that the trial court
should make the legal determination whether the specified activity would
result in a violation of or noncompliance with a statute, rule, or regulation,
and instruct the jury regarding its determination.
25
the septic system could be expanded in the future if necessary.
Nejadian testified that Bellomo wanted Nejadian to “disregard some of
the rules” regarding testing for a backup septic system, and that
Nejadian declined to do so.
The other exception to Nejadian’s lack of specification involved the
case of homeowner Duncan Baird. As noted, Baird wanted to use his
existing septic systems when he rebuilt his house, and there were issues
raised about the floor plan of the house as it existed prior to the wildfire
and about whether the septic systems were structurally sound and
complied with the plumbing code in existence at the time it was
installed (which appeared to have been in the 1940s). Medina wrote a
letter to Baird stating that the Department would accept Baird’s
statement regarding the floor plan on the home that was destroyed, but
it would require Baird to make some changes to the septic systems (to
bring them up to the requirements under the 1940 plumbing code);
Baird would not, however, have to conduct a full feasibility study so
long as certain other requirements were met.
Although Nejadian identified these two cases in which he objected
to giving approvals, he failed to present sufficient evidence to show that
the approvals would result in a violation of any specific state, federal, or
local statute, rule, or regulation.
With regard to the installation of the new spa, although Nejadian
did not refer to a specific rule that he contended approval would violate,
we note that paragraph K 1 (E) of Appendix K of the California
Plumbing Code in effect at the time of the request for approval stated
that “[a]ll private sewage disposal systems shall be so designed that
26
additional seepage pits or subsurface drain fields, equivalent to at least
one hundred (100) percent of the required original system, may be
installed if the original system cannot absorb all the sewage.”14 (Cal.
Code Regs., tit. 24, pt. 5, former App. K, ¶ K 1 (E) (2007.) There was no
evidence presented in this case, however, that installation of the new
spa would have had any effect on the existing septic system or whether
the existing system was designed so that additional seepage pits or
subsurface drain fields could be installed in the future. In fact, in the
email string that Nejadian introduced, the contractor, Jones, stated
that the installation of the new spa would not encroach on the existing
septic system, would not prevent expansion of the septic system, would
not increase the load on the existing septic system, and would not “in
any way, shape or form have anything to do with the existing [septic
system].” Thus, it appears that paragraph K 1 (E) does not have any
application to this proposed installation.
Moreover, even if that paragraph might apply, if the spa that
Jones was proposing to install was meant to replace a spa that was
damaged or destroyed in the wildfire, paragraph K 1 (A) of Appendix K
of the California Plumbing Code in effect then provides an exception to
application of the requirements set forth in the other paragraphs of
Appendix K. That provision states that the “Authority Having
Jurisdiction” (i.e., the Environmental Health Division of County’s
14 Paragraph K 1.0 (E) of Appendix K of the Los Angeles County
Plumbing Code in effect at that time includes almost identical language.
(L.A. County Code, tit. 28, former App. K, ¶ K 1.0 (E) (2011).)
27
Department of Public Health) “may grant exceptions to the provisions of
this appendix for permitted structures that have been destroyed due to
fire or natural disaster and that cannot be reconstructed in compliance
with these provisions provided that such exceptions are the minimum
necessary.”15 (Cal. Code Regs., tit. 24, pt. 5, former App. K, ¶ K 1 (A)
(2007).) As the party with the burden of proof, Nejadian was required
to present sufficient evidence to allow a court to determine that this
provision did not apply. He did not do so.
Finally, a provision of the California Plumbing Code in effect in
2010 specifically provided that “[p]lumbing systems lawfully in
existence at the time of the adoption of this code may have their use,
maintenance, or repair continued if the use, maintenance, or repair is in
accordance with the original design and location and no hazard to life,
health, or property has been created by such plumbing system.”16 (Cal.
Code Regs., tit. 24, pt. 5, former § 101.5.3 (2010).) Although Nejadian
testified about the importance of having a backup system for a septic
15 Paragraph K 1.0 (A) of Appendix K of the Los Angeles County
Plumbing Code includes almost identical language. (L.A. County Code, tit.
28, former App. K, ¶ K 1.0 (A) (2011).)
16 Section 101.3.1.1 of the 2010 Los Angeles Code similarly provided that
“[i]n existing buildings or premises in which plumbing installations are to be
altered, repaired or renovated, deviations from the provisions of this Code are
permitted, provided such deviations are found to be necessary and are first
approved by the Authority Having Jurisdiction. [¶] Any plumbing system
[such as a septic system] may have its existing use, maintenance or repair
continued when the Authority Having Jurisdiction determines that its use,
maintenance or repair is in accordance with the original design and no
hazard to the public health, safety or welfare has been created by such
system.”
28
system in case the existing system fails at some time in the future, he
presented no evidence that the existing septic system for the property at
issue currently presented a hazard to life, health, or property. In short,
we conclude that Nejadian failed to present sufficient evidence to
establish that approval of the installation of the spa would result in the
violation or noncompliance with any statute, rule, or regulation.
With regard to Duncan Baird’s property, although Nejadian did
not testify about this specific property, his counsel in closing argument
told the jury that approval of Baird’s plan violated the fire-rebuild
guidelines, which required a feasibility study if the rebuilt home was
bigger than the home that had been destroyed or if the existing septic
system was not working. The fire-rebuild guidelines, however, are not
statutes, rules, or regulations. They are guidelines. Their purpose, as
stated in the first paragraph, is “to establish standardized procedures
for the review and approval of construction plans for rebuilding a
structure following a fire or other natural disaster” in order to “expedite
timely disaster recovery.” Thus, a refusal to “violate” the guidelines
does not fall within the scope of section 1102.5(c).
In any event, even if the fire-rebuild guidelines were to be
construed as rules for purposes of section 1102.5(c), there was nothing
in the guidelines that restricts the “Authority Having Jurisdiction” from
exercising its power under Appendix K of the California and Los
Angeles County Plumbing Codes to grant exceptions to the septic
system requirements for structures that were destroyed by a wildfire, so
long as the exceptions are the “minimum necessary.” (Cal. Code Regs.,
tit. 24, part 5, former App. K, ¶ K 1 (A) (2007); L.A. County Code, tit.
29
28, former App. K, ¶ K 1.0 (A) (2011).) Inasmuch as the evidence
presented indicates that Baird’s home was destroyed by a wildfire, and
Nejadian failed to present any evidence that the exceptions granted in
Medina’s letter exceeded the minimum necessary, we conclude that
Nejadian failed to meet his burden to establish that approval of Baird’s
plans would result in a violation of any statute, regulation, or rule.
Because we find that Nejadian failed to meet his burden to show
that the activity he purportedly refused to participate in would result in
a violation of a federal or state statute or a violation or noncompliance
with a local, state, or federal rule or regulation, his section 1102.5(c)
retaliation claim should have been dismissed. Accordingly, we reverse
the judgment as to that claim and order that judgment be entered in
favor of County.
B. FEHA Retaliation Claim
Government Code section 12940, subdivision (h) makes it an
unlawful employment practice for an employer to retaliate against an
employee because that employee opposed any practice forbidden by
FEHA or because the employee filed a complaint, testified, or assisted
in any proceeding under FEHA. To establish a prima facie case of
retaliation under FEHA, an employee “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
30
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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042 (Yanowitz).)
In this case, County contends that the trial court gave an
erroneous instruction to the jury on the elements of Nejadian’s FEHA
retaliation claim by including his refusal to violate a statute, rule, or
regulation as a possible protected activity. County also contends that
Nejadian failed to produce sufficient evidence to show that he was
subjected to an adverse employment action following his protected
activity, or to show that County’s decision not to assign Nejadian to an
acting manager position was motivated by Nejadian’s protected activity.
We agree that the instruction was erroneous, and allowed the jury to
find in favor of Nejadian despite the fact that he failed to present any
evidence of an improper motive under FEHA.
1. Erroneous Jury Instruction
As noted, the court gave an instruction on the FEHA retaliation
claim that, over County’s objection, informed the jury that in order to
prove retaliation in violation of FEHA, Nejadian must establish that his
“refusal to participate in activities that would violate state, federal, or
local statutes, rules, or regulations and/or complaining about age
discrimination and retaliation in violation of FEHA with a government
agency was a substantial motivating reason for [County’s] decision to
subject him to adverse employment action.” (Italics added.) The
31
italicized portion of the instruction was improper, because that conduct
is not protected by FEHA. As stated in Government Code section
12920, the purpose of FEHA is to protect and safeguard the right and
opportunity of all persons to obtain and hold employment and housing
without discrimination on account of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and
veteran status. Because the activity Nejadian refused to participate in
would not have resulted in the violation of statutes, rules, or
regulations prohibiting discrimination in employment or housing, the
trial court erred by including the italicized language in the instruction
on FEHA retaliation.
We acknowledge that the special verdict form given to the jury did
not include the erroneously-included protected activity, and thus might
have rendered the error harmless. However, when the jury expressed
confusion about the questions on the special verdict form, the court
directed the members of the jury, over County’s objection, to review the
erroneous instruction (along with the instruction on “substantial
motivating reason explained”). Because the erroneous instruction
allowed the jury to find in favor of Nejadian even if it did not find that
his complaint about age discrimination was a substantial motivating
reason for the failure to assign him to an acting manager position, the
judgment in favor of Nejadian on the FEHA retaliation claim must be
reversed. Although ordinarily a finding of an erroneous jury instruction
would be remanded for retrial, we conclude no retrial is necessary here
32
because, as discussed below, Nejadian failed to present sufficient
evidence to establish a claim for FEHA retaliation.
2. Sufficiency of the Evidence
a. Protected Activity
In his FEHA retaliation claim as alleged in both his first amended
and second amended complaints, Nejadian alleged that he engaged in
protected activity when he complained to County management about
workplace discrimination, and was retaliated against for engaging in
that activity. At trial, the only evidence Nejadian presented of
complaints he made regarding discrimination was Ramirez’s testimony
that he told her that he felt he was discriminated against based upon
his age, and the formal complaints he filed with the EEOC and the
DFEH.
Nejadian’s statement to Ramirez does not constitute protected
activity under FEHA because Ramirez testified that she was not
Nejadian’s supervisor at the time of the conversation, the conversation
was part of an informal discussion between coworkers, and she did not
report Nejadian’s statement to management. (Yanowitz, supra, 36
Cal.4th at p. 1047 [vague or conclusory remarks that fail to put the
employer on notice are insufficient to establish protected activity].)
Thus, the protected activity for which County is alleged to have
retaliated against Nejadian is his filing of EEOC and DFEH complaints.
Accordingly, Nejadian’s retaliation claim is limited to adverse
33
employment actions that took place after the EEOC and DFEH
complaints were filed in 2015.17
b. Adverse Employment Action
In its appellant’s opening brief, County contends the only
potentially adverse employment action that took place after the EEOC
and DFEH complaints were filed was County failing to select Najadian
to fill an acting EHS manager position in September 2016. However, it
argues that denial of appointment to a temporary acting position does
not constitute an adverse employment action. (Citing Brewer v. Holder
(D.D.C. 2013) 20 F.Supp.3d 4 and other federal cases.) Nejadian argues
in his respondent’s brief that he presented evidence that he was
subjected to numerous adverse employment actions, although only
three of those actions took place after he filed his EEOC and DFEH
complaints. He also contends that the denial of the acting manager
position constituted an adverse action because there was evidence that
being assigned to an acting position was beneficial to an employee’s
career trajectory, and often provided for monetary bonuses. Neither
party is entirely correct.
Nejadian asserts there were three adverse employment actions
that took place after he filed the EEOC and DFEH: the denial of an
appointment to an acting EHS manager position, “withholding of the
17 Because retaliation under FEHA requires the plaintiff to show that the
employer was motivated to retaliate by the plaintiff’s protected activity,
actions the employer took before the plaintiff engaged in the protected
activity necessarily are irrelevant.
34
2015 performance evaluation,” and “investigation for the ‘outstanding’
marks.” Although Nejadian provides no details in his argument
regarding the latter two actions, it appears that they refer to his
testimony that at the time of trial he had not yet received his 2016 (not
2015) performance evaluation, and to testimony regarding the process
that led to the re-rating of that performance evaluation. Because
Nejadian failed to present any evidence to show how the delay in the
delivery of his 2016 performance evaluation had any adverse effect on
his employment, it cannot be the basis for a retaliation claim. However,
the downgrading of his rating on one of the categories in his
performance evaluation clearly is an adverse employment action.
Therefore, we will include it when determining whether Nejadian
presented sufficient evidence to establish County’s retaliatory motive.
We also will include the denial of the assignment to the acting EHS
manager position, because Nejadian presented testimony that
employees in acting out-of-class positions could apply for a monetary
bonus, as well as other testimony from which a jury could conclude that
employees who had been assigned to acting out-of-class positions were
better positioned to be promoted due to their experience in the acting
positions. Thus, County’s reliance on Brewer, which held that “‘“denial
of an acting position—without showing some further harm—does not by
itself qualify as an adverse employment action”’” (Brewer v. Holder,
supra, 20 F.Supp.3d at p. 27, italics added), is misplaced.
35
c. Retaliatory Motive
County contends that Nejadian failed to present evidence that his
filing of the EEOC and DFEH complaints was a motivating reason for
County not appointing him to the acting EHS manager position or for
re-rating him on his 2016 performance evaluation. Nejadian counters
that he produced sufficient evidence to prove a prima facie case for
retaliation. County’s argument prevails.
Nejadian’s response ignores his burden in this case. As noted, if
the employer produces a legitimate, non-retaliatory, reason for the
adverse employment action, the presumption of retaliation raised by the
employee’s prima facie case disappears and the employee must then
prove intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
The employee meets this burden by “prov[ing], [with] competent
evidence, that the employer’s proffered justification is mere pretext; i.e.,
that the presumptively valid reason for the employer’s action was in
fact a coverup. [Citation.] In responding to the employer’s showing of a
legitimate reason for the complained-of action, the plaintiff 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, 388-389 (McRae).)
36
We recognize that “[a]ctions for unlawful discrimination and
retaliation are inherently fact-driven, and . . . it is the jury, and not the
appellate court, that is charged with the obligation of determining the
facts. Nonetheless, the jury’s verdict stands only if it is supported by
substantial evidence.” (McRae, supra, 142 Cal.App.4th at p. 389.) “We
may not substitute our view of the correct findings for those of the
[jury]; rather, we must accept any reasonable interpretation of the
evidence which supports the [jury’s] decision. However, we may not
defer to that decision entirely. ‘[I]f the word “substantial” means
anything at all, it clearly implies that such evidence must be of
ponderable legal significance. . . . It must be reasonable in nature,
credible, and of solid value; it must actually be “substantial” proof of the
essentials which the law requires in a particular case.’” (Beck
Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal.App.4th 1160, 1203-1204 (Beck).)
“[A] judgment may be supported by inference, but the inference
must be a reasonable conclusion from the evidence and cannot be based
upon suspicion, imagination, speculation, surmise, conjecture or
guesswork. [Citation.] Thus, an inference cannot stand if it is
unreasonable when viewed in light of the whole record. [Citation.] And
although an appellate court will normally defer to the trier of fact’s
drawing of inferences, it has been said: ‘To these well settled rules
there is a common sense limited exception which is aimed at preventing
the trier of facts from running away with the case. This limited
exception is that the trier of facts may not indulge in the inference
when that inference is rebutted by clear, positive and uncontradicted
37
evidence of such a nature that it is not subject to doubt in the minds of
reasonable [people].’” (Beck, supra, 44 Cal.4th at p. 1204.)
In the present case, County presented undisputed evidence that
the decision to assign employees other than Nejadian to the acting EHS
manager positions, and the decision to investigate and downgrade one
of the ratings on Nejadian’s 2016 performance evaluation were made for
legitimate, non-retaliatory, reasons.
For example, County presented evidence that the Director of
Human Resources of the Department of Public Health, Shelli Weekes,
instituted a new method for making out-of-class temporary assignments
when she was appointed to her position in November 2015. Weekes
testified that she changed the method previously used by the
Environmental Health Division, i.e., posting the position, because she
believed it was inappropriate to post for a temporary position. Diana
Aguilar, the Division’s liaison to the Human Resources Department,
testified that Weekes imposed the same restriction on posting for a
vacancy in an EHS-4 position before the vacancies in the EHS manager
position were sought to be filled, and that the method used to fill the
acting EHS manager vacancies was based upon set criteria, i.e., the
overall ratings in past performance evaluations.
Similarly, County presented evidence that Brenda Lopez, who
reviewed all performance evaluations, investigated the 2016 evaluation
for Nejadian because the evaluation indicated that Nejadian did some
work for the land use program even though he had not been assigned to
that program during the rating period. Then, when she compared the
2016 evaluation to the 2015 evaluation and saw that the narrative
38
portion of both were virtually identical, she asked Nejadian’s
supervisor, Linda Ramirez, who wrote the evaluation, for
documentation to confirm that Nejadian had done the work for which he
received an “outstanding” rating during the 2016 rating period.
Ramirez testified that she lowered her rating in one category from
“outstanding” to “very good” in response to Lopez’s instruction that she
should reconsider her rating if she could not substantiate it with
documentary support.
Nejadian presented no evidence to “‘“demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in [County’s] proffered legitimate reasons for its action[s]
that a reasonable factfinder could rationally find them ‘unworthy of
credence,’ [citation], and hence infer ‘that [County] did not act for the
[asserted non-retaliatory] reasons.’”’” (McRae, supra, 142 Cal.App.4th
at p. 389.) Indeed, Nejadian does not even attempt in his respondent’s
brief to address County’s proffered reasons, and instead merely asserts
that he proved his prima facie case for retaliation. Because there was
no evidence from which a jury reasonably could infer (without relying
upon suspicion, imagination, speculation, or conjecture) that County
acted in retaliation for Nejadian filing complaints with the EEOC and
DFEH, the judgment in his favor on the FEHA retaliation claim must
be reversed, with judgment to be entered in favor of County.
39
DISPOSITION
The judgment is reversed, and a new judgment shall be entered in
favor of County on Nejadian’s second amended complaint. County shall
recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
40