THOMPSON v. CITY OF LOS ANGELES

No. B213601.

JUDITH THOMPSON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

Court of Appeals of California, Second District, Division Eight.

Filed June 22, 2010.


Attorney(s) appearing for the Case

Law Offices of Gene Ramos and Gene Ramos, for Plaintiff and Appellant.

Carmen A. Trutanich, City Attorney, Richard M. Brown, General Counsel for Department of Water and Power, Wendy K. Genz, Deputy City Attorney, for Defendant and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

Judith Thompson appeals from the granting of summary judgment in her action against her employer, Los Angeles Department of Water and Power (DWP), alleging supervisors retaliated against her for complaining about workplace sexual harassment and offering evidence in support of a coworker's sexual harassment complaint. We affirm.

FACTS AND PROCEEDINGS

At the threshold of our discussion of this case, we note that the trial court sustained all 126 objections by respondent DWP to appellant's evidence opposing DWP's motion for summary judgment. We do not consider evidence to which the court sustained objections. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) Appellant concedes the trial court's ruling "essentially foreclosed [her] opportunity to refute the facts submitted in [DWP's] summary judgment motion." But undaunted, she presses on with her appeal, reciting in her brief a narrative of her "facts" devoid of any effort to grapple with the consequence of the court's evidentiary rulings against her. Although none of appellant's evidence in opposition to DWP's motion for summary judgment was received into evidence, we summarize appellant's allegations in order to give context to our analysis.1

With the foregoing in mind, the facts in the record show DWP hired appellant in 1987. Appellant was a communications operator in DWP's Voice Operation Center, which is DWP's communications hub staffed 24 hours a day, 7 days a week. In May 2000, appellant gave to a workers' compensation investigator a statement supporting the allegations of appellant's coworker, Denise Jordan, that DWP supervisor McCarthy had sexually harassed Jordan. Appellant alleges various supervisors retaliated against her for supporting Jordan. As acts of retaliation, she claims the following:

• Supervisors "shunned" her, refused to help her when the operations center was overwhelmed with customer phone calls, and assigned her to less desirable shifts. • Supervisors delayed processing her requests for vacation and shift changes. • In January 2001, DWP attempted to dock her two hours' pay for reporting sick to the medical department. (When she complained about the loss of pay, DWP restored it.) • A supervisor counseled her in March 2001 about her record of tardiness. • Another supervisor told her in April 2001 that she would never get another weekend off if she continued to complain to her union. • DWP denied her use of "5.7b time" to attend family functions. One denial took place in May 2001, when a supervisor denied her permission to leave work early to pick up her son from grade school. A second denial took place on July 6, 2001, when a supervisor refused her permission to attend her daughter's graduation from training school.2 • In June 2001, a supervisor ordered appellant to meet with DWP's employee assistance program based on a conversation appellant had with a coworker about a workplace shooting.

On July 7, 2001, appellant began an almost two year leave of absence for temporary disability caused by her purported psychological distress from the retaliation she claims she suffered. Thirteen months into her leave, appellant filed on August 13, 2002, an administrative charge with the Department of Fair Employment and Housing (DFEH) alleging violation of workplace antidiscrimination laws. After receiving a right to sue letter from DFEH, she filed on August 12, 2003, the complaint at issue here. DWP successfully demurred to all of the complaint's causes of action except for retaliation. (Gov. Code, § 12940, subd. (d).) Appellant does not complain on appeal that the trial court erred in sustaining the demurrer.

DWP thereafter moved for summary judgment of the retaliation cause of action, which the court granted. The court noted that Government Code section 12960, subdivision (d) requires an employee who alleges workplace retaliation to file an administrative charge with DFEH within one year of the retaliation; failure to file a timely charge bars later filing of a civil complaint. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 (Romano).) The court found the alleged retaliatory acts took place, with two exceptions, before appellant went on leave in July 2001, but appellant waited more than one year after those acts — until August 13, 2002 — to file her administrative charge with DFEH. Consequently, the pre-July 2001 retaliatory acts were time barred. The two post-July 2001 exceptions were supervisor McCarthy's threat in May 2002 to discipline appellant, and DWP's termination of appellant's disability benefits in September 2002. The court found appellant could not recover for termination of her benefits because she did not file a petition for writ of mandamus to challenge their termination.3 The court further found McCarthy's threat to discipline appellant was, as a matter of law, not retaliation because the record contained no admissible evidence of his carrying out his threat. The court entered judgment for respondent. This appeal followed.

DISCUSSION

By the time DWP moved for summary judgment, appellant's sole surviving cause of action alleged various DWP supervisors had retaliated against appellant for having complained about sexual harassment and having supported coworker Jordan's claim of work place discrimination. Retaliation occurs when an employer substantially and adversely changes a term or condition of a worker's employment to punish the worker for having exercised rights protected by the Fair Employment and Housing Act. (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) Under FEHA, an employer violates the law if the employer retaliates against an employee for being a witness for another employee in a discrimination proceeding. (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1254-1255; Gov. Code, § 12940, subd. (h).)

A jurisdictional prerequisite for filing a civil complaint under FEHA is timely filing of an administrative charge with the DFEH. (Romano, supra, 14 Cal.4th at p. 492.)

"Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA. [Citations.]" (Romano at p. 492.)

To be timely, an employee must file her FEHA administrative charge no later than one year after the last alleged violation. (Gov. Code, § 12960, subd. (d); Romano, supra, 14 Cal.4th at p. 492.) Here, appellant filed her FEHA administrative charge on August 13, 2002. Hence, for her charge to be timely, at least one act of retaliation that substantially and adversely changed the terms and conditions of her employment must have occurred after August 13, 2001. Appellant alleges four retaliatory acts in the year before she filed her administrative charge in August 2002 (a time coincident, we note, with her not working because she was on disability leave). None of the acts creates a triable issue of fact justifying reversal of summary judgment for DWP. We address each in turn.

1. Termination of Disability Benefits

In September 2002, DWP's retirement plan ended the plan's payment to appellant of temporary disability benefits that she had drawn since July 2001. At its September 2002 meeting, the retirement plan's benefits committee denied appellant continued disability payments on the ground that her only work restriction was her treating psychologist's directive that appellant return to work under supervisors different from those for whom she had worked before going on disability.

Appellant contends the committee's denial of benefits from September 2002 until she returned to work in May 2003 was retaliation for having supported Jordan's discrimination claims. The trial court correctly noted, however, that appellant had not filed a petition for writ of mandamus to challenge the termination of her benefits. (See Risam v. County of Los Angeles (2002) 99 Cal.App.4th 412, 416-417, 421 [findings of civil service hearing officer binding if not challenged by writ of mandamus]; Bowman v. Bd. of Pension Commissioners (1984) 155 Cal.App.3d 937 [denial of application for disability pension by city's pension commissioners reviewed by mandamus proceeding].) The trial court found that appellant's failure to exhaust her judicial remedies was res judicata of the correctness of the benefit committee's findings of her ineligibility for continued benefits. As the denial of benefits was, by operations of law proper, the committee's denial of those benefits could not legally support appellant's retaliation claim.

In Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70, the California Supreme Court stated:

"[U]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions.[] This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] . . . Exhaustion of judicial remedies . . . is necessary to avoid giving binding effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.' [Citation.]"

The Johnson court warned that "[r]efusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation." (Id. at p. 72.)

Appellant does not cogently discuss the doctrine of exhaustion of judicial remedies or its application in the trial court below or upon appeal here. She limits her argument on appeal to asserting DWP "failed to meet it[s]s burden of establishing evidence of this defense. In order to establish the defense of failure to exhaust judicial remedies, a moving party must show that the employer's internal grievance procedures entailed a `quasi-judicial hearing.'" Appellant shoulders the burden of showing the trial court erred. (Hoffman Street, LLC v. City of West Hollywood, supra, 179 Cal.App.4th at p. 773.) Her bald assertion that DWP "failed to meet it[s] burden of establishing" failure to exhaust judicial remedies cannot do so, for she does not cite the record and her citation to page 1089 of Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, with a cryptic reference to a "quasi-judicial hearing" without discussion is unilluminating. We thus do not address her contention on the merits. (Indiana Lumbermens Mut. Ins. Co. v. Alexander (2008) 167 Cal.App.4th 1544, 1548 fn. 1.)

2. McCarthy's Discipline Threat

Appellant contends supervisor McCarthy retaliated against her by threatening her in May 2002 with "discipline." The discipline was undefined, appellant remained on disability leave for another year, and appellant's brief does not provide any additional details about what, if anything, McCarthy did to follow through when she returned to work in May 2003. To constitute retaliation, an adverse action must be "detrimental and substantial." (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512.) An unfulfilled threat of workplace discipline is not actionable, a point of law that appellant does not discuss. (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377.) Because appellant does not present a coherent argument that McCarthy's undefined threat adversely changed the terms or conditions of her employment, she fails to show his threat was retaliation.

3. Refusal to Transfer as Denial of Reasonable Accommodation

Appellant contends DWP retaliated against her by refusing to transfer her out from under the supervision of her former supervisors (particularly McCarthy) who, she says, drove her to take disability leave in the first place. Appellant cites no authority that failing to transfer an employee is an adverse change in the terms and conditions of one's employment for a job the employee may otherwise capably perform — here a communications operator.4 If anything, refusing to transfer denies a change in the terms or conditions of employment. Her citation to pages 1054 to 1055 of Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th 1028 for the proposition that refusing a transfer is an adverse employment action does not support her. The passage she cites states "adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of" FEHA's antidiscrimination law; it says nothing about transfers. We conclude DWP's refusal to transfer appellant was not retaliation.

4. Subjected to Hostile Work Environment

Appellant contends the general hostility, nastiness, and mean spiritedness of her supervisors toward her was retaliation. Appellant carries the obligation of showing the trial court erred. She cannot do so, however, if she ignores the salient flaw running throughout her claims below and on appeal: she began her leave of absence on July 7, 2001, freeing her from her supervisors' further scrutiny and purported abuse, but did not file her FEHA administrative charge until 13 months later in August 2002. Because she ignores her 13 month delay, she fails to show the trial court erred in granting DWP summary judgment.

DISPOSITION

The judgment is affirmed. Respondent Department Water and Power to recover its costs on appeal.

WE CONCUR.

BIGELOW, P. J.

FLIER, J.

FootNotes


1. Appellant contends the court erred in sustaining DWP's objections, but she does not discuss the objections and the court's ruling with any particularity. Appellant carries the burden of showing, with citations to the record and authority, that the court abused its discretion or otherwise erred in sustaining DWP's objections. (Hoffman Street, LLC v. City of West Hollywood (2009) 179 Cal.App.4th 754, 773; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) Her discussion of the court's ruling fails to do so. Accordingly, we pass on her contention.
2. A joint labor-management committee established by the Memorandum of Understanding between DWP and appellant's union found the denial of 5.7b leave time was not retaliatory.
3. The court also found appellant offered no admissible evidence creating a triable issue of fact of causation between termination of her benefits and her support of coworker Jordan because there was no evidence DWP's benefits committee knew about appellant's support of Jordan. We need not address that additional ground here.
4. Appellant's treating psychologist released appellant to return to her regular duties as a communications operator provided she worked under new supervisors. Appellant additionally asserts that DWP's refusal to transfer her was retaliation because it was an unlawful failure to provide reasonable accommodations, a principle she borrows from disability law. We do not address the appropriateness of her fusing with retaliation — which involves adverse changes in the terms and conditions of employment — an employer's duty to accommodate an employee's disability. As we observed, the retirement plan's board ultimately found appellant was no longer disabled.

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