The opinion
Filed 6/1/21 Brown v. Dept. of Corrections etc. CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JADA BROWN,
Plaintiff and Appellant, A158715
v.
DEPARTMENT OF CORRECTIONS (Marin County
AND REHABILITATION et al., Super. Ct. No. CIV1702421)
Defendants and Respondents.
This is an appeal from judgment after the trial court granted the
motion for summary judgment filed by defendant California Department of
Corrections and Rehabilitation (CDCR) in a wrongful termination lawsuit
brought by its former employee, plaintiff Jada Brown. On appeal, plaintiff
challenges the trial court’s findings on summary judgment that she failed to
make a prima facie case of retaliation or race discrimination. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 15, 2010, plaintiff was hired as a recreation therapist at San
Quentin State Prison (San Quentin). Plaintiff was assigned to work on the
recidivism team with a mental health unit at San Quentin. In this capacity,
plaintiff arranged therapeutic recreation activities for inmates on death row
or in administrative segregation. Her supervisor was Dr. Christopher Roach.
1
In 2011, plaintiff was transferred to the crisis treatment center (CTC),
a new medical unit at San Quentin, which was in need of a therapist to
provide recreational therapy to some of the prison’s most mentally ill
inmates. Plaintiff’s new supervisor was chief medical officer Dr. Elena
Tootell.
In October 2011, plaintiff made a complaint to Sheila D., a union
representative, regarding work-related issues. Specifically, she complained
about not having proper supervision or basic supplies to perform her duties,
including computer access, paper, markers, or therapeutic holding cages for
meeting with her inmate patients.
Sometime in 2012, plaintiff made a complaint to T.F., a labor relations
officer, regarding an incident with a CTC staff member, Angel L., who
allegedly yelled at plaintiff, called her insubordinate, and “forced her to
violate HIPPA [sic] laws” by sliding inmate files under the office door of a
colleague.1
Also in September 2012, plaintiff made a complaint to Barbara Brown,
an employee relations officer. Plaintiff again complained about her lack of
proper supervision and inadequate supplies. In addition, plaintiff claimed
that she had been improperly transferred to CTC without being given a new
job description, had her Internet access removed, and was denied a raise.
On October 9, 2012, several correctional officers and prison staff
members witnessed plaintiff allowing an inmate (Inmate 1) to speak to his
attorney and mother on a state-owned speaker phone in violation of CDCR
policies. Plaintiff admitted placing a call to Inmate 1’s attorney on his behalf
1“HIPPA” appears to be a reference to the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA). (Pub.L. No. 104-191
(Aug. 21, 1996) 110 Stat. 1936.)
2
that lasted about 10 minutes and a call to his mother that lasted about 15
minutes. Officer Stragalinos came into the room and overheard the call.
Officer Stragalinos then left the room and asked Officer Edwards whether
plaintiff obtained authorization for the calls. Officer Edwards said she did
not. When Officer Edwards returned to the room, plaintiff falsely stated that
she received authorization from a CTC supervisor. Plaintiff then repeated
this false statement to Dr. Tootell and others. When later questioned about
this incident, the CTC supervisor confirmed that she did not authorize
plaintiff to allow Inmate 1 to make the calls and that she previously
instructed plaintiff not to allow Inmate 1 telephone calls.
The next day, October 10, 2012, plaintiff was reprimanded by Dr. Pratt
that the calls with Inmate 1 were inappropriate. Dr. Pratt also warned
plaintiff that she would be removed from her normal duties and reassigned to
the dental division pending an investigation into the incident.
On November 5, 2012, Dr. Tootell reported to the employment relations
office additional information regarding plaintiff. This report stated: “Jada
Brown had a verbal altercation with a clerical person in the CTC. Upon
questioning both Jada and the other employee, it was found that Jada had
approached the CTC inmate porter, and told the inmate that the porter was
‘hot’ and the clerical employee had a ‘crush on him.’ After the ensuing
altercation, I verbally counseled Jada on appropriate conversations with
inmates and maintaining a level of professionalism. At that time, I urged
Jada to ‘refrain from speaking with the inmate workers in the CTC unless it
involves cleaning. This conversation occurred on July 27th, 2012. [¶] . . . [¶]
Jada was placed on administrative duties in October of 2012. After Jada had
cleaned out her desk, Standards and Compliance Coordinator [Diana M.]
found a large stack of papers with patient protective identifiers.”
3
On November 7, 2012, Andrew W. Deems, San Quentin’s chief
executive officer for healthcare, was notified in a memorandum from chief
nursing executive Antonio Laureano that plaintiff placed two phone calls on
behalf of an inmate and with the inmate present without proper
authorization. Due to the seriousness of the allegation, Deems ultimately
directed that plaintiff was to be reassigned to administrative offices where
she would not have regular inmate contact pending an internal investigation
by the office of internal affairs (OIA). At that time, Deems had no knowledge
that plaintiff had made any complaints to CDCR officials or union
representatives regarding various work-related issues.
On March 1, 2013, while the OIA’s investigation was ongoing,
Dr. Tootell wrote a memorandum recommending that plaintiff, who was still
working in the dental division, not be certified for a salary adjustment
because she was under investigation for overfamiliarity and had been
redirected from clinical duties to administrative duties. On March 14, 2013,
plaintiff then complained about not getting a pay raise.
On October 30, 2013, plaintiff filed a union grievance stating that she
was working out of her job classification without receiving a commensurate
pay increase.
In March 2014, the OIA’s investigation into plaintiff’s alleged
misconduct, ordered by Deems on November 7, 2012, finally closed. The OIA
found that plaintiff violated CDCR rules, policies, or regulations as follows:
(1) In or about 2012 plaintiff was overly familiar with Inmate 1 while he was
housed at CTC. She placed calls to his attorney and to his mother on his
behalf and allowed him to place calls to his mother without authorization in
violation of San Quentin policies, and was then dishonest about having done
4
so.2 (2) In 2012, plaintiff retained over 200 confidential inmate patient
records in her work area that should have been stored in confidential files.
She removed confidential inmate patient records from San Quentin, took
them home, and refused an order to return all of them. (3) Finally, plaintiff
was dishonest and willfully insubordinate and disobedient during the OIA’s
investigation when she, among other things, repeatedly failed to comply with
explicit instructions not to discuss her case with anyone without
authorization, except for her representative.3
On April 15, 2014, plaintiff filed a grievance with CDCR stating that
she was unfairly denied her merit-based pay increase due to an improper
performance evaluation.4
On May 22, 2014, plaintiff wrote an email to five CDCR colleagues,
Nathaniel A., Adeaner M. (her supervisor), Eric M., Barbara Brown, and
Rachel N., in which she raised work-related concerns such as having to
perform tasks “out of class,” not receiving proper supervision or training as to
CTC policies, and not getting a pay raise due to a “false” performance
2A few days earlier, after having been told not to allow Inmate 1
telephone calls or to be overly familiar with inmate porters, plaintiff received
from Inmate 1 the name of his attorney and then looked up the attorney’s
contact information online.
3The OIA found that plaintiff’s misconduct violated the following
CDCR rules, regulations, policies, or procedures (among others): Department
Operations Manual (DOM), ch. 5, art. 21, § 52060.3, Use of Intrainstitution
Telephone by Inmates; DOM, ch. 1, art. 12, §§ 12070.1, 12070.3, Telephone;
Operational Procedure 1073, Telephone Access; SQ-Correctional Treatment
Center Policy, CTC Inmate Privileges; Cal. Code Regs., tit. 15, § 3282, Use of
Telephones by Inmates; DOM, ch. 3, art. 22, § 33030.3.1, Code of Conduct;
Cal. Code Regs., tit. 15, § 3391, Employee Conduct; DOM, § 31140.38,
Confidentiality of Investigations.
4On March 3, 2014, Brown’s supervisor, Cheri Smith, denied plaintiff a
merit increase.
5
evaluation. Plaintiff also referenced her misconduct, claimed other
employees brought “contraband” into San Quentin yet were not investigated,
and complained about having been “discriminated against in so many ways.”
On May 29, 2014, plaintiff complained in writing about not getting a
pay raise and about “false” scrutiny of her work.
On July 1, 2014, based on the OIA’s findings, Deems issued plaintiff a
56-page notice of adverse action placing her on administrative leave. Deems
found particularly significant the incidents of plaintiff’s dishonesty,
explaining that “employees working at San Quentin State Prison who have
regular interaction with inmates [must] be forthright and honest in their
communications regarding occurrences at San Quentin involving inmates”
and that “[d]ishonesty in this regard represent[ed] an unacceptable threat to
the safety and security of prison personnel, as well as the inmates.” A few
weeks later, Deems terminated plaintiff’s employment effective July 31, 2014.
On August 28, 2014, following plaintiff’s request for review, Deems upheld
his decision.
In or about July 2015, plaintiff filed an employment discrimination
complaint with the Department of Fair Employment and Housing (DFEH)
and was issued a right-to-sue letter.
On July 5, 2017, plaintiff filed the operative complaint, asserting
causes of action for retaliation in violation of the California Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), whistleblower
retaliation in violation of Labor Code section 1102.5, and race
discrimination.5
On August 24, 2018, following a period of discovery, CDCR moved for
summary judgment. On October 31, 2018, plaintiff filed an opposition to this
5 Plaintiff is African-American.
6
motion and objections to CDCR’s evidence (including to Deems’s declaration).
Plaintiff’s subsequent request for a continuance was granted, and both
parties filed supplemental briefs as ordered by the court and additional
evidentiary objections.
On August 19, 2019, following a contested hearing, the trial court
granted CDCR’s summary judgment motion. In doing so, the court found
that CDCR met its burden of proving one or more of plaintiff’s prima facie
elements was lacking as to each cause of action, and that plaintiff failed her
subsequent burden to raise a triable issue of fact in opposition. Judgment
was entered in favor of CDCR, prompting this timely appeal.
DISCUSSION
Plaintiff contends the trial court erred in finding on summary judgment
that she failed to make a prima facie case of retaliation or race
discrimination. According to plaintiff, multiple triable issues of material fact
exist, including whether CDCR’s stated reasons for terminating her were
pretextual and whether she was actually terminated for her protected
activity in (1) complaining about CDCR’s failure to implement sufficient
training and resources to comply with consent decrees that CDCR entered
into in order to resolve federal lawsuits regarding its healthcare program and
(2) complaining about her disparate treatment as compared to similarly
situated non-African-American employees.
I. Standard of Review.
A motion for summary judgment shall be granted if all the evidentiary
papers submitted and independently reviewed by the court show there is no
triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 67 (Morgan).) A
7
defendant therefore “may move for summary judgment in an action or
proceeding if it is contended that the action has no merit,” including, for
example, when the defendant contends the plaintiff cannot establish one of
the essential elements of the action. (Code Civ. Proc., § 437c, subds. (a),
(o)(1).) On appeal, “[w]e accept as true the facts alleged in the evidence of the
party opposing summary judgment and the reasonable inferences that can be
drawn from them. [Citation.] However, to defeat the motion for summary
judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the
allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc.
(1999) 72 Cal.App.4th 798, 805; see Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
II. Retaliation Under FEHA and the Labor Code.
Plaintiff brought retaliation claims under both FEHA and Labor Code
section 1102.5 based on allegations that CDCR dismissed her in retaliation
for complaints she made to management and union representatives regarding
various work issues and conditions, which she says were “protected activities”
under these statutes.6
6 FEHA bars an employer from taking any adverse employment action
against an employee “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.” (Gov. Code, § 12940, subd. (h).)
Labor Code section 1102.5, subdivision (b) bars an employer from
“retaliat[ing] against an employee for disclosing information . . . to a
government or law enforcement agency, to a person with authority over the
employee or another employee who has the authority to investigate, discover,
or correct the violation or noncompliance . . . 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.”
8
To establish a prima facie case of retaliation under FEHA and Labor
Code section 1102.5, the employee must show the following: (1) he or she was
engaged in a protected activity, (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link exists between the
protected activity and the employer’s adverse action. (Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1125; Patten v. Grant Joint Union
High School Dist. (2005) 134 Cal.App.4th 1378, 1384 (Patten); Morgan, supra,
88 Cal.App.4th at p. 68.) Only if the employee makes this prima facie
showing will the burden shift to the employer to identify a legitimate,
nonretaliatory explanation for its adverse action. If the employer does so, the
employee has the opportunity to show the employer’s explanation is false or
pretextual. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467,
475–476; Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127,
1141.)
Here, this burden shifting never occurred because the trial court found
that plaintiff failed to establish a prima facie case. Specifically, while it was
undisputed plaintiff’s termination constituted an adverse action, the court
found no evidence of a protected activity or a causal link between any
protected activity and plaintiff’s termination. We agree with this result.
A. Protected Activity.
“FEHA’s stricture against retaliation serves the salutary purpose of
encouraging open communication between employees and employers so that
employers can take voluntary steps to remedy FEHA violations . . . .” (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 475.) “Thus, protected
activity takes the form of opposing any practices forbidden by FEHA or
participating in any proceeding conducted by the DFEH or the Fair
Employment and Housing Council (FEHC). (Cal. Code Regs., tit. 2, §§ 11002,
9
subds. (a), (b), 11021, subd. (a).)” (Nealy v. City of Santa Monica (2015) 234
Cal.App.4th 359, 380 (Nealy).) Relevant here, “[o]pposing practices forbidden
by FEHA includes . . . opposing employment practices the employee
reasonably believes to exist and believes to be a violation of FEHA; [or]
participating in an activity perceived by the employer as opposition to
discrimination. . . . (Cal. Code Regs., tit. 2, § 11021, subd. (a)(1).)” (Ibid.)
“Although an employee need not formally file a charge in order to
qualify as being engaged in protected opposing activity, such activity must
oppose activity the employee reasonably believes constitutes unlawful
discrimination, and complaints about personal grievances or vague or
conclusory remarks that fail to put an employer on notice as to what conduct it
should investigate will not suffice to establish protected conduct.” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1047, italics added, fn. omitted
(Yanowitz).)
Similarly, under Labor Code section 1102.5, an employee engages in
protected activity “ ‘when he or she discloses to a governmental agency
“ ‘reasonably based suspicions’ of illegal activity,” ’ ” meaning a violation of or
noncompliance with a state or federal statute, rule or regulation. (McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 468–469 (McVeigh).)
While the employee must have a reasonable belief that the disclosure
involves a violation of or noncompliance with a statute, rule or regulation, “it
is not the motive of the [employee], but the nature of the communication that
determines whether it is covered [as a protected act under Labor Code section
1102.5].” (Mize-Kurzman v. Marin Community College Dist. (2012) 202
Cal.App.4th 832, 852 (Mize-Kurzman).)
Here, plaintiff identifies the following communications as protected
activity: (1) an October 2011 complaint to a union representative regarding
10
her lack of proper supervision and inadequate supplies and resources
(including therapeutic inmate holding cages) with which to perform her job;
(2) a 2012 complaint to T.F., a labor relations officer, that another employee,
Angel L., yelled at plaintiff, alleged she was insubordinate, and “forced her to
violate HIPPA [sic] laws” by placing inmate files under the door to another
office; (3) a September 2012 complaint to Barbara Brown, an employee
relations officer, regarding her lack of proper supervision, inadequate
supplies, failure to receive a proper raise, and inappropriate transfer from a
mental health unit to a medical health unit; (4) an October 30, 2013 union
grievance that she was working out of her job classification without receiving
commensurate pay; (5) an April 2014 grievance regarding a dispute over not
receiving a salary adjustment and a request for a performance review; (6) a
May 22, 2014 email in which plaintiff claimed she had been discriminated
against; and (7) a May 29, 2014 email in which plaintiff claimed she did not
receive a fair performance evaluation.
These complaints do not reflect any reasonable belief on plaintiff’s part
that CDCR was engaged in a particular employment practice in violation of
FEHA or any other local, state or federal statute, rule or regulation. Instead,
her complaints reflect personal grievances with several aspects of her work
environment, including a lack of proper supervision and training, inadequate
access to supplies and the Internet, and unfair performance evaluations and
denials of pay increases. These are not protected activities under FEHA or
Labor Code section 1102.5. (Yanowitz, supra, 36 Cal.4th at p. 1047; see Mize-
Kurzman, supra, 202 Cal.App.4th at pp. 852–853 [distinguishing between
“the disclosure of policies that plaintiff believed to be unwise, wasteful, gross
misconduct or the like . . . and the disclosure of policies that plaintiff
reasonably believed violated federal or state statutes, rules, or regulations”];
11
cf. McVeigh, supra, 213 Cal.App.4th at p. 471 [prima facie case of retaliation
demonstrated where “[plaintiff] did not merely refer the employees he
suspected of [fraud] to his superiors for personnel action within Recology. He
took his reports to law enforcement, and they were reports of illegal conduct
not just ‘internal . . . personnel matters’ ”].) As the California Supreme Court
explained: “The tort of wrongful discharge is not a vehicle for enforcement of
an employer’s internal policies or the provisions of its agreements with
others.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1257.)
Patten is demonstrative. There, a school principal’s disclosures “about
needing more staff for safety purposes . . . were made in an exclusively
internal administrative context. They do not show any belief on [the
principal’s] part that she was disclosing a violation of state or federal law in
any sort of whistleblowing context . . . .” (Patten, supra, 134 Cal.App.4th at p.
1385.) As Patten explained, “[t]o exalt these . . . disclosures with
whistleblower status would create all sorts of mischief. Most damagingly, it
would thrust the judiciary into micromanaging employment practices and
create a legion of undeserving protected ‘whistleblowers’ arising from the
routine workings and communications of the job site.” (Ibid.; see Conn v.
Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, 1182
(Conn) [affirming directed verdict for defense where the evidence “showed
that in making her complaints [plaintiff] was attempting to secure special
education services for her own children and certain students in her class” and
“there was no evidence ‘she was complaining that the District had a
persistent and pervasive system of ignoring its special-education students
and violating state statutes designed to protect these [vulnerable
students]’ ”].)
12
As plaintiff notes, two of her complaints refer to conduct that violates
FEHA or a federal statute. In 2012, plaintiff complained to a labor relations
officer about being forced by a CTC staff member “to violate HIPPA [sic]
laws” by sliding confidential files under the office door of a colleague, and in a
May 22, 2014 email to five colleagues, she expressed being discriminated
against “in so many ways.” These communications at most reflect plaintiff’s
generalized concerns that certain coworkers or managers mistreated her at
work. However, aside from plaintiff’s lone mention of HIPAA in her
complaint about a colleague’s demand that she slide documents under an
office door, there is no evidence in the record that plaintiff had a specific
concern that CDCR had a policy or practice of violating this act.7 (Conn,
supra, 186 Cal.App.4th at p. 1182.) Similarly, plaintiff’s vague reference to
“[being] discriminated against” lacks any grounding in a particular discreet
event(s) in which she faced discrimination by a supervisor. As such, these
communications also fall outside the scope of protected activity under FEHA
or Labor Code section 1102.5. (See Yanowitz, supra, 36 Cal.4th at p. 1047
[“vague or conclusory remarks that fail to put an employer on notice as to
what conduct it should investigate will not suffice to establish protected
conduct” (italics added)]; Husman v. Toyota Motor Credit Corp. (2017) 12
Cal.App.5th 1168, 1194 [“Absent the identification of some more pointed
7 In the employment discrimination complaint that plaintiff filed with
the DFEH in 2015, she stated that several people who were not her
immediate supervisor “were giving me different and conflicting directives.
Some of these orders were in violation of HIPPA [sic] laws since they asked
that I send patient files under a door to an office where other employees can
view the concealed and protected patient files.” However, this
posttermination communication does not show that, prior to her termination,
plaintiff had a reasonable belief that CDCR had a policy or practice of
violating HIPAA and that she complained to CDCR’s management about it.
13
criticism or opposition salient to an act reasonably believed to be prohibited
by FEHA, Husman failed to raise a triable issue of fact supporting his claim
of retaliation”].)
B. Causal Link.
Even assuming plaintiff engaged in protected activity in her 2012
complaint that another employee forced her “to violate HIPPA [sic] laws” and
in her May 22, 2014 complaint that she had been discriminated against “in so
many ways,” plaintiff must also demonstrate a causal link between the
activity and her termination, to make a prima facie case of retaliation.
(Patten, supra, 134 Cal.App.4th at p. 1384.) Attempting to create a triable
issue, plaintiff relies on the temporal proximity between her communications
and Deems’s November 2012 request for an investigation into her improper
phone calls.
“ ‘ “The causal link may be established by an inference derived from
circumstantial evidence, ‘such as the employer’s knowledge that the
[employee] engaged in protected activities and the proximity in time between
the protected action and allegedly retaliatory employment decision.’ ”
[Citation.]’ [Citation.]” (Morgan, supra, 88 Cal.App.4th at pp. 69–70.)
However, “ ‘[e]ssential to a causal link is evidence that the employer was
aware that the plaintiff had engaged in the protected activity.’ [Citations.]”
(Id. at p. 70.)
Here, notwithstanding the timing of plaintiff’s complaints, there is no
evidence that Deems, the official who made the decisions to investigate then
terminate plaintiff, was aware of her complaints. (Morgan, supra, 88
Cal.App.4th at pp. 69–70.) Deems gave undisputed testimony that he had no
knowledge of any of plaintiff’s alleged protected activity when terminating
14
her. Rather, he based his decision entirely on the results of the OIA
investigation, which was by all means comprehensive and fair.8
Plaintiff speculates that Deems must have known about her complaints
and suggests that he was not forthcoming in his declaration or deposition
testimony. However, plaintiff presents no actual evidence to refute Deems’s
clear denials of having such knowledge.9 Nor does plaintiff present evidence
from any of the people to whom she directed her complaints from which it
could be inferred that Deems knew of her complaints. As such, plaintiff’s
speculation does not meet her burden of demonstrating a disputed issue of
fact as to whether Deems was aware that she was engaging in protected
activity. (See Kase v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623,
646 [a party cannot avoid summary judgment by “ ‘ “ ‘asserting facts based on
mere speculation and conjecture’ ” ’ ”]; Morgan, supra, 88 Cal.App.4th at p. 73
[“In the absence of evidence that the individuals who denied appellant
employment were aware of his past filing of a grievance, the causal link
necessary for a claim of retaliation can not be established”].)
Plaintiff also argues that Deems’s ignorance of her complaint-making
does not “ ‘categorically shield [CDCR] from liability’ ” because “ ‘other
substantial contributors’ ” to his decisionmaking, mainly her CTC managers
and supervisors, had the requisite retaliatory motive, citing Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109–110. Reeves does not
8 It was not until interviewing numerous witnesses and reviewing a
wealth of evidence that the OIA found that plaintiff committed serious
violations of CDCR rules and policies, including being overfamiliar with an
inmate, improperly storing and removing confidential CDCR records, and
disobeying orders not to discuss its confidential investigation.
9 In arguing that “Deems was was [sic] familiar with her protected
activity,” plaintiff cites to “Brown Depo 188:2-10.” The cited deposition
testimony is not in our record on appeal, and we therefore do not consider it.
15
help plaintiff, as she presented no evidence that any of the individuals to
whom she voiced complaints about being discriminated against or forced to
violate HIPAA laws were “substantial contributors” to Deems’s decision to
terminate her. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th
1237, 1251 [distinguishing Reeves where the plaintiff presented “no evidence
that any of the coworkers to whom he spoke about ‘why [he] was sick’ was a
‘substantial contributor’ to the decision to discharge him”].) On the contrary,
the record reflects that chief nursing executive Laureano first reported in
2012 plaintiff’s alleged misconduct to Deems, who then directed the OIA to
independently investigate the allegations. Plaintiff does not claim, much less
offer evidence, that Laureano had a retaliatory motive or was somehow in
cahoots with any coworker or supervisor who had such motive.
Accordingly, for the reasons stated, we affirm the trial court’s finding
that plaintiff failed to make a prima facie case of retaliation under FEHA or
Labor Code section 1102.5.
III. Race Discrimination Under FEHA.
Plaintiff’s remaining claim is for racial discrimination in violation of
FEHA, which requires a prima facie showing “that (1) [s]he was a member of
a protected class, (2) [s]he was . . . performing competently in the position
[s]he held, (3) [s]he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 355 (Guz).) As before, if an essential element of the
plaintiff’s prima facie case is negated, the defendant is entitled to summary
judgment. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 170 (Wills).)
However, if a prima facie case is made, the defendant must present evidence
that it had a legitimate, nondiscriminatory justification for the adverse
16
employment action, which then shifts the burden back to the plaintiff “to
‘offer substantial evidence that [the defendant’s] stated nondiscriminatory
reason for the adverse action was untrue or pretextual, or evidence the
employer acted with a discriminatory animus, or a combination of the two,
such that a reasonable trier of fact could conclude the employer engaged in
intentional discrimination.’ [Citation.]” (Wills, supra, at p. 171.)
Where, as here, the plaintiff relies on allegations of disparate
treatment to prove discrimination, he or she must show “ ‘that the
misconduct for which the employer discharged the plaintiff was the same or
similar to what a similarly situated employee engaged in, but that the
employer did not discipline the other employee similarly.’ ” (McGrory v.
Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535.)
“Another employee is similarly situated if, among other things, he or she
‘ “engaged in the same conduct without any mitigating or distinguishing
circumstances.” ’ ” (Wills, supra, 195 Cal.App.4th at p. 172.)
To show disparate treatment, plaintiff offered evidence that
(1) Susan L., a Caucasian, gave a brownie with a candle to an inmate on his
birthday; (2) Georgina N., a Latina, was caught sharing makeup with an
inmate; (3) Dr. Millford, whose race is unidentified, shared candy with
inmates; (4) David W., an African-American male, had a cell phone in his
brief case; and (5) unidentified recreational therapists brought movies to
prison. According to plaintiff, none of these colleagues was terminated for his
or her conduct.
As an initial matter, while plaintiff presented evidence that coworkers
were also overfamiliar with inmates, plaintiff presented no evidence that
CDCR was aware of any of the coworkers’ conduct or, more importantly, that
it handled their conduct differently than plaintiff’s conduct. Plaintiff
17
disregards the fact that her overfamiliar conduct did not alone lead to her
termination. Rather, plaintiff’s overfamiliar conduct triggered an
independent investigation by the OIA, the fairness of which has not been
challenged, that revealed numerous other acts of misconduct. There is no
evidence of any comparable procedure or findings with respect to the conduct
of the allegedly similarly situated employees.
As the trial court found, “plaintiff’s cumulative incidents of misconduct
are not remotely comparable to that of the other persons she cites in her
examples . . . .” To state the obvious, giving food to an inmate, sharing
makeup with an inmate or having a cell phone in a personal briefcase is a far
less serious act than plaintiff’s combined acts of (among other things)
improperly calling an inmate’s attorney and mother and lying about it;
improperly storing confidential inmate patient files and, in some cases,
taking the files home and refusing to return them; and disobeying repeated
commands not to discuss her case while the confidential investigation was
pending.
Accordingly, we conclude plaintiff failed to present evidence showing
that CDCR treated similarly situated employees more favorably, or any other
evidence “supporting a rational inference that intentional discrimination, on
grounds prohibited by the statute, was the true cause of [CDCR’s] actions.”
(Guz, supra, 24 Cal.4th at p. 361, italics omitted.) Summary judgment in
CDCR’s favor was thus appropriate. (Ibid.; see Loggins v. Kaiser Permanente
Internat. (2007) 151 Cal.App.4th 1102, 1113.)
DISPOSITION
The judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A158715/Brown v. Dept. of Corrections & Rehabilitation
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