Anderson-Santos v. San Francisco

Filed 4/5/07 Anderson-Santos v. San Francisco CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Janice Anderson-Santos appeals the dismissal of her claims for employment discrimination, harassment, and retaliation, after the court granted summary judgment in favor of her employer, the City and County of San Francisco (the City), and her work supervisor, Trent Rhorer. Appellant argues that each of her claims presented triable issues of material fact. We disagree and will affirm.

Factual and Procedural Background

Appellant was hired in 1992 by the City as a child welfare worker in the San Francisco Department of Human Services (DHS). In 1997, she was promoted to program manager in the Family and Childrens Services Division (FCS), where she supervised approximately 150 staff, and assisted deputy director Bill Bettencourt in creating the programs annual budget of approximately $2 million. In 2000, appellant was one of six managers who received a Public Managerial Excellence Award.

In 2001, following Bettencourts retirement, appellant was promoted to deputy director of the FCS, and began reporting to Trent Rhorer, executive director of the DHS.^[1] Appellants initial responsibilities as deputy director included managing a staff of approximately 350, developing and administering an annual operational budget of over $110 million, and modifying programs to comply with changes in state and federal law.^[2]

The DHS is divided into three divisions under the authority of deputy directors: FCS, administered by appellant; administrative services, administered by Sally Kipper until her retirement in January 2005; and economic support and self-sufficiency, administered by Jim Buick. Appellant is African-American, and Kipper and Buick are Caucasian.^[3]

In mid to late 2001, Rhorer began to receive complaints from Kipper and Buick about appellants performance.^[4] In January 2002, Rhorer met with appellant regarding her mid-year performance evaluation, and confirmed the meeting in an e-mail to her. Rhorer listed several areas where he expected appellants performance to improve: following up on correspondence in a timely manner, holding middle management staff accountable, regularly attending specified meetings, communicating with staff, and discussing divisional reorganization. In May 2002, Rhorer allowed appellant to pass probation. In July 2002, Rhorer rated appellants overall performance at 3.2 out of 5, a score that indicated competent and effective performance.

In a survey performed in mid-2002, FCS staff regarded their employment less favorably than their peers in Kippers and Buicks divisions.^[5] In August 2002, Rhorer immersed himself in FCS operations, and for three days he accompanied social workers on field visits and met with FCS staff to identify operational and leadership issues in FCS. During the immersion, [Rhorer] developed a more complete understanding of FCS staffs dissatisfaction with [appellants] management. Rhorer heard staff complaints about appellants lack of leadership, lack of follow-through on issues brought to her attention, poor relationship with and aloofness from staff, failure to engage staff in dialogue regarding FCS operational issues directly impacting the quality of their work life, favoritism and lack of commitment to managing based on performance, and lack of attention to critical program details.

In September 2002, Rhorer placed appellant on a plan to attain improvement in her performance in several areas: following up on assignments within a reasonable time frame, holding management staff accountable, attending specified administrative meetings, communicating with FCS staff and community partners, identifying and completing program initiatives, and improving general management skills. Rhorer also directed appellant to work with a management coach at DHSs expense.^[6] He also asked her to submit her electronic calendar of weekly activities to him between September 2002 and April 2003, to allow [him] to better understand [appellants] time management. In April 2003, Rhorer wrote to appellant: I no longer need to receive your weekly calendar. You[r] attendance at Deputy meeting[s], Commission and Personnel Committee has improved. Thanks. Appellant responded to Rhorers proposed work plan in a memo that contested various components and expressed her refusal to sign it. In late 2002 and throughout 2003, complaints to Rhorer from the directors of numerous community-based organizations about appellants poor performance and lack of responsiveness to their needs continued. Rhorer never received similar complaints regarding Kippers or Buicks divisions.

In October 2002, appellant complained to Jonnie Robinson, the city coordinator of equity programs in the mayors office, about discriminatory treatment by Rhorer.^[7] In early 2003, appellant again reported Rhorers alleged discrimination and harassment to Robinson, and to San Francisco Supervisor Sophie Maxwell.^[8] Shortly thereafter, appellant was told that due to allegations . . . that Rhorer lacked sensitivity to minorities within the community including from community service providers and from employees, Mayor Willie Brown had convened a task force, including employees of several City agencies.

In April 2003, appellant informed Robinson that Rhorers actions were intensifying rather than abating.^[9] In July 2003, appellant filed an administrative complaint with the Department of Fair Employment and Housing, and obtained a right to sue letter in July 2003. Appellant also filed a tort claim against the City for race and sex discrimination, harassment, retaliation, and related causes of action. The City rejected the claim. According to appellants declaration, Rhorer confronted her in mid-July, about the tort claim and yelled and screamed at [her] asking [her] if [she] knew what [she] had done when filing the complaint.

Rhorer said he first learned about appellants complaints in July 2003, and that the City directed [him] to have then Chief of Staff . . . Steve Arcelona sit in on [Rhorers] one-on-one weekly meetings with [appellant]. Rhorer also invited appellant to have a third party such as her union representative present if she so chose, and she ultimately decided to have Jimmie Gilyard, one of the managers who reported to her in FCS, attend.

In November 2003, Rhorer issued appellants annual performance review. The numerical ratings on appellants seven identified goals ranged between 2 and 3, and averaged 2.52 out of a possible 5 points. Appellant concurred in each rating, but objected to certain professional development suggestions included in the review, such as attending management and computer training courses, because they were not within the scope of her goals for the year that were agreed upon in January 2003.

In December 2003, appellant filed a suit alleging race and gender discrimination, harassment, intentional and negligent infliction of emotional distress, violation of her right to privacy, defamation, and violation of article I, section 8 of the California Constitution.^[10] In April 2004, Rhorer granted appellant a six-month medical leave for an unrelated physical injury. Shortly thereafter, Rhorer transferred the recertification of foster care eligibility from FCS to the Division of Economic Support and Self-Sufficiency (ESS) under Buick. The section had been under ESS before, and included 37 employees with a budget of approximately $69 million. Rhorer explained that the transfer was based on critical operational factors, including increasing the efficiency of the recertification process by placing the foster care redeterminations under the same manager, CalWORKS Program Manager Dolores Heaven, who is responsible for eligibility determinations for low income families. The FCS division had been delinquent in recertifying a significant number of foster children, thereby risking millions of dollars in federal and state reimbursement funds. Rhorer declared that [c]onsolidating the program into the CalWORKS unit seemed likely to allow better opportunities for staying on top of this issue once it was under control, that the consolidation furthered the Departments CalWORKS and child welfare services crossover project, and that it brought San Francisco into line with the practice of other counties relating to centralized eligibility determinations.^[11] Appellant claims she was not informed in advance of the transfer of the unit, and disagreed that the transfer resulted in administrative efficiencies, arguing that most other California counties do not follow such an organizational structure.

Before appellant returned from her medical leave, and after discussing the plan with appellant, Rhorer transferred four members of appellants staff to the IT division. Rhorer also appointed his chief of staff, Steve Arcelona, to be chief deputy director, and directed all the deputy directors, including appellant, to report to Arcelona.^[12] According to appellant, after Arcelonas appointment, Rhorer continued to meet regularly with Kipper and Buick, but not with her.^[13] Rhorer denied that he retaliated against appellant, acted with malice toward her, or treated her differently than Kipper and Buick.

Appellant relies on declarations submitted by two of her former coworkers who describe her as responsive, candid, professional, and a team player . . . committed to providing quality services. Jerry Silverman, who worked with appellant between 2001 and 2004, stated that he personally found her able to foment solid relationships in pursuit of emerging goals as the job proceeded. She was responsive to the needs of both peers and the project. [Appellant] was always candid, open and sincere in her contributions and her motivational skills were exemplary, considering the range of issues that needed analysis. Bureaucracy was, as in any project, a problem. [Appellant] was confident in her abilities to step around issues that would trammel progress, despite some[] lack of clarity as to exactly who had to do exactly what and in which timeline(s). [Silverman] never had any sense [appellant] was responsible for any discord either through any action or inaction. Jesse Williams, a former probation officer, described the formation of a task force by Mayor Brown to address complaints of Rhorers insensitivity to minorities. But the task force meetings that Williams attended discussed providing services in general, and not Rhorers insensitivity. Williams stated that he never questioned appellants commitment, her communication or her management abilities. Appellant told him that Rhorer was undermining her authority and changing her decisions, or misrepresenting them to others. Appellants expert human resources consultant opined that the City in essence demoted [appellant] and jeopardized her future earning potential.

The trial court granted summary judgment for the City and Rhorer. The court concluded that appellants claims for race and gender discrimination must be dismissed because Plaintiff has not produced evidence of pretext sufficient to overcome Defendants legitimate business reasons for the alleged actions. The court also dismissed the claims for race and gender harassment, because Plaintiffs allegations of allegedly discriminatory personnel actions do not constitute evidence of actionable harassment. The court considered the retaliation claim barred both by appellants failure to exhaust administrative remedies and by her failure to demonstrate the requisite causal nexus between her alleged complaints and Defendants alleged retaliatory conduct. The claim under article I, section 8 of the California Constitution was rejected because appellant was not  disqualified from employment and has no evidence that any of the actions taken toward her were based on her race or gender. Appellant timely appealed.^[14]

Discussion

Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805 (Horn).) On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)

Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court [in McDonnell Douglas v. Green (1973) 411 U.S. 792] for trying claims of discrimination, including age discrimination, based on a theory of disparate treatment. . . . [] This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. . . . [] At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. . . . (Guz, supra, 24 Cal.4th at p. 354.) If the plaintiff establishes a prima facie case, the burden shifts to the employer to produce admissible evidence, sufficient to raise[] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Id. at p. 355-356.)

In order to establish a prima facie case, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) 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, supra, 24 Cal.4th at p. 355.)^[15]

Here, there was evidence that shows defendants acted for legitimate business reasons rather than as a pretext for discrimination. The evidence showed that appellants performance improvement plan was initiated to address complaints and observations by Rohrer of her work performance. She was required to check in with Rohrers office, share her calendar and undergo coaching after she missed meetings. The transfer of FCS and IT positions from appellants division was not unprecedented, and was justified as promoting administrative efficiency and the alignment of related services within one division. Finally, the appointment of a chief deputy director does not appear related to appellants employment. The chief deputy director position was preexisting. Moreover, all the deputy directors of the department appear similarly situated and under the authority of the chief deputy, and the reporting structure existed in prior administrations. Legitimate business reasons also explained the decision to fill the position. The department had assumed new responsibilities for the Department of Aging and the mayors homeless initiative. The fact that deputy directors other than appellant may have had more continuing contact with the department director does not undermine the legitimacy of the chief deputy appointment.

In light of the evidence that alleged acts of discrimination were supported by legitimate business reasons, the burden shifted to appellant to offer substantial evidence that the employers 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. [] It is not enough for the employee simply to raise triable issues of fact concerning whether the employers reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for [statutorily prohibited] discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; accord, Horn, supra, 72 Cal.App.4th at pp. 806-807.)

Nor can the employee simply show the employers decision was wrong, mistaken, or unwise. Rather, the employee  must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers 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.    (Horn, supra, 72 Cal.App.4th at p. 807; see also Guz, supra, 24 Cal.4th at p. 358; Price v. Marathon Cheese Corp. (5th Cir. 1997) 119 F.3d 330, 337 [plaintiff must show that one of the proscribed factors  actually played a role in and had a determinative influence on the employers decision-making process].) [S]ummary judgment for the employer may thus be appropriate where, given the strength of the employers showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred. Such is the case here. (Guz, supra, at p. 362.)

The fact that the same supervisor is responsible for both the hiring and the alleged discriminatory treatment of an employee gives rise to a  strong inference . . . that there was no discriminatory motive.  (Horn, supra, 72 Cal.App.4th at p. 809.) Rhorer hired appellant and allowed her to pass probation.^[16] Rhorer also received repeated criticisms of appellants job performance from the other deputy directors, staff, and community members, a number of whom were African-American women.^[17] Appellants attempt to dismiss the chronic performance problems documented in numerous declarations by her colleagues and subordinates as vague and non-measurable is unpersuasive. Appellant has not offered substantial evidence of pretext sufficient to overcome the strong inference of nondiscrimination raised by the same-actor presumption and the other evidence of legitimate business reasons for the Citys conduct. (Id. at p. 811; see also Chiaramonte v. Fashion Bed Group, Inc. (7th Cir. 1997) 129 F.3d 391, 399 [retention of employee despite opportunity for removal gives rise to presumption of nondiscrimination].)^[18]

Appellants circumstantial evidence raises, at most, a weak inference of prohibited bias. (Guz, supra, 24 Cal.4th at p. 362, fn. 25.) While she complains that Rhorer treated her differently and intervened more often in the running of FCS than in other divisions, she acknowledges that she had less experience than the other deputy directors. Appellant claims that some of Rhorers interventions in FCS personnel matters violated DHS policies and procedures. But she has not presented substantial evidence that his interventions were motivated by prohibited bias.^[19] (Id. at p. 358 [legitimate reasons in this context are those that are facially unrelated to prohibited bias].) Appellant further claims she was denied opportunities to attend continuing education programs and receive reimbursement for legitimate business travel. But her only citation to documentary evidence supporting her point shows Rhorer in fact authorized reimbursement for appellants use of a personal vehicle.

Appellant argues that the Citys allegedly discriminatory treatment of two female African-American contractors is evidence that the Citys business reasons here were pretextual. But the cases she cites address the admissibility of evidence regarding prior treatment of other employees, not outside contractors (Becker v. ARCO Chemical Co. (3d Cir. 2000) 207 F.3d 176, 194, fn. 8; Brown v. Trustees of Boston University (1st Cir. 1989) 891 F.2d 337, 349-350), and the evidence appellant cites does not support her claim.^[20] Appellant also argues Mayor Brown formed a task force to inquire into Rhorers alleged insensitivity. But the purpose and function of the task force are unclear, and the evidence has little if any probative value to show that Rohrer discriminated against appellant.^[21] Rhorers alleged critical remarks about local political figures who are African-American similarly provide no clear evidence of racial bias.^[22] (See Horn, supra, 72 Cal.App.4th at pp. 809-810 [ambiguous and/or stray remark entitled to virtually no weight in considering whether the [alleged discriminatory treatment] was pretextual or whether the decisionmaker harbored discriminatory animus]; see also Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919 [ambiguous comment not tied directly to alleged discriminatory treatment of the plaintiff was insufficient to raise a genuine issue of fact to show pretext].)

In light of appellants weak showing that the Citys explanation for its actions was false or concealed an improper motive, summary judgment on her claims for race and gender discrimination was proper. (See Guz, supra, 24 Cal.4th at pp. 362, 369-370; Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058 [[a]bsent substantial responsive evidence . . . of the untruth of the employers justification or a pretext, a law and motion judge may summarily resolve the discrimination claim. ].) Appellants claim for harassment also fails.^[23] So does her claim under article I, section 8 of the California Constitution, in light of appellants failure to show a triable issue of fact with regard to her claims that she suffered disparate treatment based on her race or gender.

Summary judgment was also proper on appellants retaliation claim. Rhorers expression of ongoing concerns about appellants job performance predated her October 2002 complaint to Robinson and the filing of her DFEH and tort claims in mid-2003.^[24] Many of the issues identified in appellants January 2002 mid-year performance review continued to be listed in her September 2002 work plan, before appellant first met with Robinson. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1053 [retaliation claim rejected where alleged wrongful acts occurred before sexual harassment complaint was filed]; see also Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 272 [immaterial that alleged adverse employment action occurred one month after supervisor learned of employees suit, when action was planned before suit was filed].) The transfer of the foster care eligibility section to the division where it was previously housed also occurred many months after Rhorer learned of appellants complaints. (See Mesnick v. General Elec. Co. (1st Cir. 1991) 950 F.2d 816, 828 [nine month gap between Equal Employment Opportunity Commission complaint and firing of plaintiff suggests the absence of a causal connection].) Appellants evidence failed to raise a material issue of fact that she suffered retaliation for protected activity.^[25] (See Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931 [Mere sequence is not enough to show requisite causal connection between adverse action and protected complaint]; see also Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [ Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity. )

Disposition

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] Rhorer was the interim executive director of the DHS until his permanent appointment in April 2001. Rhorer designated appellant acting deputy director of FCS in January 2001. Appellant was interviewed by a panel of community leaders and selected by Rhorer as the permanent deputy director in May 2001, over a number of other candidates. Between January 2001 and December 2004, appellants salary increased from $88,670 to $128,564.

^[2] Before appellant became deputy director, FCS was under an order of noncompliance from the California State Department of Social Services regarding the regulation of visits and contacts between welfare workers, children, and their caretakers. The foster care eligibility unit was also out of compliance with state regulations relating to recertifications.

^[3] Phil Arnold, who replaced Kipper as deputy director of administration, is also Caucasian.

^[4] Several of Kippers managers expressed frustration with [appellants] judgment, lack of responsiveness, or follow-through. Kipper was also concerned about appellants failure to manage inappropriate staff conduct and performance and to hold her top managers accountable. Kipper noted that appellant was slow to respond to requests for information and follow-up and did not seem to understand or care about the importance of personnel policy and staffing decisions being made in Personnel Committee meetings, and accordingly frequently missed meetings where her input and agreement were required as to specific issues impacting FCS. Buicks complaints centered on [appellants] failure to respond to [his] requests or inquiries in a timely manner together with her failure to follow-through on matters requiring her participation.

^[5] Appellant takes issue with the accuracy of the survey and the inferences to be drawn from it. She says that the survey was not meant to measure Deputy Director performance but rather [to] obtain a general pulse for the department. But the survey was only one of numerous sources cited by the City to support Rhorers concerns about appellants performance. An FCS management team retreat conducted in April 2002 also identified a range of key issues impeding the efficient functioning of the division, including lack of trust, unproductive meetings, deficient decision-making, lack of communication, inconsistent policies and procedures, and lack of vision and direction.

^[6] Appellant testified she found the coaching helpful.

^[7] Appellants statement that she first complained to Robinson in April 2002 was stricken from her declaration pursuant to DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, because it conflicted with her deposition testimony. Appellant contends the court erred, because she did not testify that she communicated her complaints to Robinson in person[in April 2002]. Viewing appellants deposition testimony in context, we agree with the trial court.

^[8] Appellant also declared that Robinson and Brenda Lopez, director of the Department of Children, Youth and their Families, reported other complaints of discrimination had been filed against Rhorer by African-American women. Lopezs declaration stated she had no personal knowledge of any complaints, [but] had heard rumors. Lopez herself had no conflict with Rhorer.

Each party objected to the others declarations on various grounds, including hearsay, and the court stated it would consider only admissible evidence, pursuant to Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410. The parties have renewed their evidentiary objections on appeal. Even assuming all the evidence should be considered, the trial court properly granted summary judgment for the City, as discussed below.

^[9] Appellant also complained about Rhorer to Clementine Clark, president of the Department of Human Services Commission.

^[10] Article I, section 8 of the California Constitution provides: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.

^[11] Before her leave in April 2004, appellant reduced the number of delinquent cases from approximately 1,600 cases to approximately 800. In deposition, Heaven testified there were then 471 delinquent cases, and that approximately 130 families participated in both the CalWORKS and FCS programs.

^[12] According to Rhorer, Arcelona was promoted due to Rhorers assumption of responsibility for the Citys Department of Aging and Adult Services, and his growing policy role in leading the Mayors initiative to end homelessness. A chief deputy reporting structure existed in previous administrations, according to Rhorer, Kipper and Buick.

^[13] Appellant contends Arcelona was made chief deputy so that she and Rhorer would not have direct contact during her lawsuit, and relies on deposition testimony of DHS secretary Pam Tebo to show that Rhorer told Tebo that appellant could not report to him if she was suing him. Tebo also testified that Kippers successor is quite involved with the budget and has to meet with [Rhorer] on that. And the main reason [Buick] and [Rhorer] meet is because of homeless [issues] and that seems to be one of the mayors top priorities.

^[14] The court also rejected appellants claims for emotional distress, invasion of privacy, and defamation. Summary judgment on those claims is not challenged.

^[15] In making her prima facie case, appellant must also prove she suffered adverse employment action on account of discrimination by defendants. Appellant argues that Rhorers supervision, and transfer of employees and budgetary allocations away from her division, created such a diminution of her duties and responsibilities that it was in effect a demotion. While we have some doubt whether this is correct, in light of our decision, we need not determine whether the changes in appellants duties materially affected the terms, conditions or privileges of her employment to constitute an adverse change that could create liability. (Yanowitz v. LOreal U.S.A., Inc. (2005) 36 Cal.4th 1028, 1052.)

^[16] Appellant argues that an inference should not be drawn in Rhorers favor because he merely acquiesced to her appointment as deputy director and accepted the recommendation of the interview panel. But appellant does not claim that Rhorer lacked the authority to hire her or to determine whether she would pass probation. Although others may have been involved in the process, the undisputed evidence establishes that Rhorer hired appellant. (See Horn, supra, 72 Cal.App.4th at pp. 802-803, fn. 2.)

^[17] For example, Sharen Hewitt, the director of San Francisco State University Urban Institutes Community Leadership Academy Emergency Response Project, stated: From the time she assumed the position of Deputy [D]irector of FCS, [appellant] has consistently failed to meet the requirements of that position for providing services to the families we serve. [] . . . [] In addition, the issue of access became a compelling problem under [appellant]. Waiting for a response to inquiries and time-critical needs became commonplace, and did not improve with repeated calls and expressions of urgency. This problem has a very human face for me, as it is families and individuals with little or no resources who are in dire circumstances who are made to wait when bureaucracies stall. This has been a constant and ongoing problem with FCS under [appellant]. [] I informed Trent Rhorer of these concerns in a series of discussions beginning in approximately late 2002. I know Mr. Rhorer to be a demanding manager who holds all of his managers accountable, without regard to race or gender, and I believe that he has attempted to do so with [appellant]. As an African-American woman living a politically involved life, I believe that I am highly attuned to issues of race and sex bias. I have never known Mr. Rhorer to take any action based on such bias, and have no question that his commitment to providing service to the population DHS serves is his sole guide in how he handles his responsibilities. [] I consider [appellant] to be a good person, and like her. I consider her also to be a friend who has come to my aid on a personal level when I have been in need. I also believe that she has very real skills and abilities and could serve the City well in another capacity. However, I think that she was promoted through the ranks too quickly, and lacks the necessary background and qualifications for the demands of the Deputy Director job. While I am very sensitive to issues of race and gender discrimination, neither her problems as Deputy Director nor Trent Rhorers handling of those problems has anything to do with her being an African American woman.

^[18] Because the City presented competent evidence of legitimate business reasons for its conduct, we need not consider whether the McDonnell Douglas burdens are reversed on a defense motion for summary judgment against a claim of employment discrimination. (See Guz, supra, 24 Cal.4th at pp. 356-357.)

^[19] Appellant claims, for example, that Rhorer violated civil service rules by directing her to interview lateral candidates at the same time as promotional candidates in two particular instances. Rhorers declaration states he ha[d] no idea why [appellant] considers this to have been a significant issue, and believe[d] that [his] direction was consistent with Department practice.

^[20] Appellant contends the City hired long-term contractors as employees who were male and Caucasian, but did not hire two long-term contractors who were female and African-American. But there is no evidence that they were all similarly situated. Appellant also states that in June 2002 Rhorer ignored my recommendation that DHS should promote Michele Byrd, an African American female, to the Acting Director of Housing and Homeless Division under Jim Buick. Rhorer instead gave the position to a Caucasian male stating he was not sure where Byrds priorities rested given she had 3 children at home. Such a comment, relating to another employees appointment under a different deputy director, is of little probative value to support appellants claims of discrimination in her own employment. (See Rubinstein v. Administrators of Tulane Educ. Fund (5th Cir. 2000) 218 F.3d 392, 400-401 [managers stray remarks unrelated to employment decision at issue not probative of animus]; cf. Brown v. Trustees of Boston University, supra, 891 F.2d at pp. 349-350 [court finds admissible university presidents remarks relating to another womans tenure candidacy, but states it is a tremendous leap to infer from remarks such as these that [plaintiff was denied] tenure because of her gender].) Appellants declaration also refers to the apparently anonymous posting on an office bulletin board of a notice stating:  The More Things Change, The More Things Stay the Same . . . Why is DHS Restructuring so similar to Post Civil War Reconstruction. If you do not Stand Apart from and Move Against the Problem then Youre Not A Part Of the Solution. SFDHS: Where Institutional Racism is Standard Practice and being RACIST is once again Trendy.  But she fails to show the specific relevance of the notice to the allegations of her lawsuit.

^[21] Lopez, the former director of the Department of Children, Youth and Their Families, testified at her deposition that she attended a meeting where Mayor Brown asked her about rumors of a confrontation between Rhorer and African-American women in Bayview-Hunters Point, and participated in a follow-up meeting approximately one month later. Lopez and another African-American manager present at the meetings told the mayor they had no personal conflict with Rhorer. During the second meeting, the subject turned to the provision of city services to clients, and the mayor asked Lopez to convene monthly meetings thereafter with the appropriate department heads. Lopez reported to the mayor on their ensuing discussions of customer service improvement in the southeast sector of the city and cultural sensitivity, and noted that many of the staff that deals with these clients are not necessarily African American, and want[ed] to make sure that there was a level of sensitivity to cultural differences in all our departments. Rhorer never did or said anything during their meetings which indicated he was not culturally sensitive to the African-American community, nor had anyone ever told her anything to suggest that. Former Probation Officer Jesse Williams stated in his declaration that he agreed to serve on a task force to educate and work with Trent Rhorer on how to appropriately deal with minorities, but the meetings he attended only discussed providing services in general. The City states that it formed the taskforce based on [appellants] own complaint targeting Rhorer and seeking to insulate herself from further performance criticism, but does not cite the record to support that statement.

^[22] According to appellants declaration, Rhorer called Mayor Brown an idiot, accused San Francisco Deputy City Attorney Kamala Harris of lack of leadership and being too politically motivated, remarked that Supervisor Sophie Maxwell had no juice  and stated that the reason that African American children were over represented in the foster care system was due to the crack epidemic in the 1980s. Jimmie Gilyard, who worked with appellant, once heard Rhorer comment during a meeting that the mayor should have been ashamed of having all the African American kids in the system and something to th[e] [e]ffect [of] not doing anything.

^[23] It was undisputed that appellants claims for race and gender harassment merely replicate her discrimination claims. Her attempt to suggest otherwise in her reply brief is therefore ineffective. We do not address the Citys additional argument that its conduct was not alleged to be so severe and pervasive as to establish a hostile work environment.

^[24] Rhorer stated he first learned about appellants complaints against him in July 2003, when she filed her DFEH and City tort claims. Appellant argues that the City had a general policy to discuss harassment and discrimination complaints with the accused, which supports an inference that appellants earlier complaints to Robinson in 2002 were discussed with Rhorer. But appellant provides no evidence to support her speculation that Rhorer would have learned of her discussions with Robinson before the filing of appellants administrative complaints. (See Horn, supra, 72 Cal.App.4th at p. 807 [an issue of fact is not created by speculation or conjecture].) Appellant also testified at her deposition that a conversation with Rhorer in the lat[t]er part of [2002] made her feel he was confident it wasnt [she] who had made trouble for him with the mayor.

^[25] We therefore do not consider whether the trial court correctly concluded the retaliation claim was also barred because appellant failed to exhaust her administrative remedies. The cases cited in appellants January and March 2007 letters are also factually distinguishable, as demonstrated by her own summaries thereof. (See Burlington North. & Santa Fe Ry. Co. v. White (2006) 126 S.Ct. 2405, 2416-2418 [jury could reasonably conclude that title VII plaintiffs reassignment from forklift duty to standard track laborer tasks and 37-day suspension without pay would have been materially adverse to a reasonable employee and supported her claim for retaliation]; Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1232 [employee sufficiently pled that he experienced adverse employment action as a result of opposing race discrimination against a subordinate when he alleged he was stripped of his supervisory position and subjected to a continuing course of conduct that resulted in his low rank on the civil service list for a position for which he was previously groomed].)