Cates v. Division of Gambling and Control

Filed 3/8/07 Cates v. Division of Gambling and Control CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Richard Montes, Judge (Ret.). Judgment against Virginia Broach affirmed; the remaining judgments affirmed in part, reversed in part and remanded.

Candace Cates, Virginia Broach, Spencer Ellis and Darryl Heintz (collectively the Plaintiffs) appeal judgments entered in favor of their employer, the San Diego Division of Gambling Control (the Division) of the California Department of Justice (the Department), and Division supervisors, Ernest Duran and Michael Coleman (collectively with the Division, the Defendants), in this action for employment discrimination and retaliation. The Plaintiffs contend that the superior court erred in (1) denying Cates and Ellis leave to amend to add whistleblower claims under Labor Code section 1102.5 against the Division and the State of California; (2) partially denying their discovery of the personnel file of Elijah Zuniga, one of their peers who they contend received preferential treatment because he was Mexican (the parties also refer to Zuniga's status as Hispanic); and (3) granting summary judgment as to their discrimination, failure to prevent discrimination, retaliation and aiding and abetting retaliation claims. (All statutory references are to the Labor Code unless otherwise specified.)

We conclude that the trial court erred in denying Cates and Ellis leave to amend to add a section 1102.5 cause of action and summarily adjudicating the discrimination and failure to prevent discrimination causes of action asserted by Cates, Ellis and Heintz and the retaliation and aiding and abetting retaliation claims by Cates. Accordingly, we reverse the judgments as to those rulings. In all other respects, we affirm the judgments because the Plaintiffs waived their challenge to the trial court's partial denial of their discovery motion by failing to produce an adequate record to permit appellate review and the Defendants have established their entitlement to summary adjudication of Broach's discrimination and failure to prevent discrimination claims and Ellis's retaliation and aiding and abetting retaliation claims.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2001, Broach, Cates and Heintz worked as special agents for the Division's San Diego field office, which was responsible for monitoring, investigating and ensuring that local gambling establishments were complying with applicable laws, including the Gambling Control Act (Bus. & Prof. Code,  19800 et seq.) and the gaming compact regulating tribal gambling operations within the State of California (the Gaming Compact). At that time, Duran was the Special Agent in Charge, and thus the overall supervisor, of the Division's San Diego office; Ellis and Steven Utter were the Special Agent Supervisors responsible for supervising agent investigations of gambling operations at area tribal casinos and cardrooms, respectively. Although agents generally specialized in investigating either tribal gambling operations or cardrooms, it was also common for them to assist in investigations in the other area.

Zuniga transferred into the Division from the Department's Bureau of Narcotic Enforcement in April 2001 after applying for the job at Duran's urging; he was assigned to work primarily on cardroom investigations. Within a short time after Zuniga started at the San Diego office, it became apparent that Zuniga and Duran had a strong affinity for each other, with Duran calling Zuniga "carnalito" (which translated means "little brother" and generally is used to refer to a close friend), Zuniga referring to Duran as "mi jefe" and the men embracing each other in abrazos in accordance with Mexican tradition. Duran and Zuniga frequently spoke to each other in Spanish in front of the other agents, none of whom were Mexican or Hispanic or spoke Spanish. Agents also noticed that Zuniga spent a significant amount of time in Duran's office.

Although many of the Division agents frequently worked overtime to complete their investigations, Zuniga began bragging to others that his overtime compensation was much higher than theirs. Further, agents noticed that Duran was giving Zuniga special assignments that involved travel and/or weekend work (including driving new vehicles from Sacramento to San Diego, going on trips to pick up or deliver documents and being given responsibility for agent recruitment), but did not offer similar assignments to other agents. Zuniga was also given opportunities to participate in events that the other agents were not even made aware of until after the events had occurred. For example, in the spring of 2001, when California Attorney General Bill Lockyer came to San Diego to tour a local tribal casino that was assigned to Cates, Duran arranged for Zuniga to assist with the tour, but did not inform Ellis, Cates or any of the other agents about the tour until after it was over.

Based on their perceptions that Zuniga was receiving favorable treatment from Duran, Cates and Heintz complained to Utter and Ellis. Utter and Ellis talked to Duran about these complaints, but Duran responded that he and Zuniga "understood" each other, that it was a "Mexican thing" and that "nothing was going to change." Shortly thereafter, Division Director Harlan Goodson attended an all-hands meeting of the San Diego office to address the agents' complaints about discrepancies in assignments involving overtime; he indicated that there was no overtime abuse in the office and that the allocation and approval of overtime was at Duran's discretion. After the meeting, Duran accused Ellis of having an affair with Cates and told Ellis to write her up for having a "bad attitude." He also accused Ellis of sleeping while at work and failing to get agents to turn in their paperwork on time.

In October 2001, Utter transferred out of the Division and Ernest Mercado, a long-time friend of Duran who is also Hispanic, transferred to the San Diego office as the new cardroom supervisor. From the time that Mercado started, Duran treated him more favorably than Ellis, allowing Mercado to arrive at work late and leave early without reporting to him. Similarly, Duran did not make Mercado report the amount of overtime that the cardroom agents generated, although he required Ellis to do so for the tribal agents, notwithstanding that the cardroom investigations generated more overtime work than the tribal investigations. Duran also continued to make special assignments to the cardroom agents, which required more supervisor time and thus permitted Mercado to earn more overtime than Ellis. He also conversed with Mercado in Spanish in front of the other agents, just as he did with Zuniga.

In November 2001, based on changes in the funding for the Division's tribal and cardroom investigative teams, the agents in the San Diego office were assigned to work permanently on either the tribal team or the cardroom team. Cates, Heintz and special agent Charles Potter were assigned to the tribal team with Ellis, while Broach and Zuniga were assigned to the cardroom team under Mercado's supervision. Notwithstanding the permanent assignments, agents continued to provide some assistance with investigations outside their designated areas.

After being assigned to work on the cardroom team, Zuniga asked Mercado to give him the responsibility for investigating specific cardrooms that required travel and had the "most stuff going on" (including the larger cardrooms in Los Angeles) and thus would generate the most overtime work. Mercado agreed to Zuniga's request and assigned the rest of the cardrooms to Broach, with virtually no input from her. At about the same time, Mercado denied Broach's request to telecommute (i.e., prepare her investigation reports at home), although several months later he and Duran allowed Zuniga to do so.

In November 2001, Zuniga attended two conferences in Los Angeles with Duran, one of which was by invitation only; the other agents were not aware of either of these conferences until after the events occurred. During that same month, Duran authorized Zuniga to travel to San Jose to teach at a California Narcotics Officers Association conference, for which Zuniga received overtime pay, but refused Cates's request to teach a one-hour drug awareness class at a school in Temecula.

Similar opportunities were made exclusively available to Zuniga in December 2001 and January 2002. For example, Duran arranged for Zuniga to assist with a tour of Los Angeles cardrooms for the Arizona Division of Gambling, but did not inform the other agents about the event. Duran also permitted Zuniga to attend a computer notebook training that was scheduled for "supervisors only." Additionally, Zuniga was selected to participate in an undercover computer training that Cates had expressed an interest in and that Ellis had recommended to Duran that Cates, Heintz and Broach attend as well; the other agents were told they could not attend the training, but that Zuniga would train them after he participated in the program, although he never did so. Zuniga was also permitted to attend a meeting of the Gambling Control Commission in San Francisco with Duran, despite the fact that a Division policy precluded nonsupervisory agents from attending such meetings.

In late January 2002, Duran announced that, as a result of budget constraints, the Division would be instituting a rule precluding agents from working more than 10 hours of overtime a month. Thereafter, the Division issued a formal written policy capping each agent's overtime at "[a] maximum of 16 hours per month . . . for pay," with any additional overtime to be "only authorized when . . . absolutely necessary and unavoidable" and to be compensated by additional time off rather than additional pay. (The monthly overtime cap was later increased to 24 hours.)

Based on this new Division policy, agents were instructed that they would be required to abide by the cap and that any excess overtime would have to be approved by Duran or higher level supervisory staff. Although Heintz requested to work overtime to complete an on-going investigation, Duran instructed Ellis to deny the request based on the cap. In addition, certain other projects that agents had been working on were canceled or limited in scope to avoid excess overtime work.

Zuniga, however, continued to earn overtime compensation every month for work that was well above the cap and the level of overtime other agents were authorized to work, in part because Duran characterized a number of his assignments as "high priority." Zuniga continued to earn overtime pay based on other special assignments, including a weekend trip he took with Mercado to Northern California to deliver a letter, the return from which was extended when the men decided to stop in Bakersfield to investigate a cardroom that was assigned to Broach; they conducted the investigation without consulting Broach or informing her of their plans.

Zuniga also continued to earn overtime by working alone on projects rather than receiving assistance from other agents. On one occasion, Broach and Cates were asked to participate in an investigation with Zuniga, but were later removed from the project after he met with Mercado and Duran privately; because Zuniga worked on the project alone, he earned overtime compensation in carrying it out.

In February 2002, Duran ordered other agents to provide rides to Zuniga after Zuniga had his license suspended for 30 days; Duran, Mercado and others also chauffeured Zuniga around so that Zuniga could perform his job duties during that same time. In early March 2002, Duran instituted a policy requiring that all overtime requests be supported by "written justification." At about the same time, Cates tried to talk to Duran about morale problems in the office, which she attributed to the relationship between him and Zuniga, but Duran was not receptive to her concerns. In addition, when the issue of Zuniga's excess overtime was raised at an agent meeting, Duran insisted that there was no overtime abuse problem in the San Diego office. Later that month, Ellis complained to Duran about the poor office morale caused by Duran's relationship with Zuniga, which made Duran angry.

In late March 2002, Cates, Broach, Heintz and Potter filed a formal grievance with the Division against Duran, Mercado and Zuniga, alleging that Duran and Mercado had given Zuniga preferential treatment, including excess overtime and educational and project opportunities, because of his race. (Potter subsequently retired and is not a party to this action.) Mercado was annoyed by this and he and Duran accused Ellis of having failed to properly explain the overtime policy to the agents on his team (which notably did not include Broach, whose understanding of the policy was similar to that held by Cates, Ellis and Heintz). In May 2002, Cates, Heintz, Broach and Potter refiled their grievance as a complaint with the Department's Equal Employment Rights and Resolutions Unit. At about the same time, Duran denied Cates's request to attend an on-line computer crimes training, ostensibly based in part on budget constraints.

At an agent meeting in May 2002, there was discussion about the woman who was most likely to become the next head of the Division and many agents, including Duran, made negative comments about her qualifications for the position. The next day, Duran ordered Ellis to conduct an investigation into Cates's comments at the meeting that were critical of the candidate, although "part way through" the investigation, he changed the directive, requiring Ellis to expand his investigation to all of the agents' comments. Over the next several months, the state cars assigned to Cates, Heintz and Potter suffered suspicious tire damage, which Cates reported to the Division's investigators.

In September 2002, Duran made Mercado the supervisor of the tribal team and Ellis the supervisor of the cardroom team, which Ellis (and Cates) perceived as an attempt by Duran to have Mercado control the complaining agents' activities. At about the same time, Duran started giving the agents on Ellis's team assignments directly, without informing Ellis of what he was doing.

In the fall of 2002, the Division received a written request from a tribal member to investigate alleged accounting improprieties and/or theft of casino funds by casino employees at a local casino; Cates requested permission to initiate an investigation, but Duran refused to allow her to do so. Another local tribe's gaming commission also rebuffed Cates's attempt to get a copy of the tribe's gaming regulations, which she felt was a violation of the tribe's obligations under the Gaming Compact. Cates prepared a report of her investigation in which she noted the violation of the Gaming Compact and requested authorization to initiate dispute resolution measures with the tribe, but Director Goodson responded by blaming Cates for the tribe's failure to produce the documents, falsely contending that she had a "personality conflict" with the tribe's attorney. He apparently declined to initiate dispute resolution measures and later deleted any reference to Cates's recommendations in the subsequent annual review report regarding that tribe's operations.

In November or December 2002, Ellis filed a formal grievance letter with the Department's Equal Employment Rights and Resolutions Unit against Duran for retaliation and a hostile work environment. However, the Department declined to investigate Ellis's claims on the ground that he had "no jurisdiction" to allege retaliation based on grievance issues not associated with discrimination. Over the next several months, Ellis told Director Goodson that although he preferred to stay with the Division, he felt compelled to transfer out if nothing was going to be done about Duran.

In January 2003, the Plaintiffs filed discrimination charges with California Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission. Further, because there was no indication that any action was going to be taken about his complaints against Duran, Ellis submitted a formal request to be transferred out of the Division; the request was granted a day or so later and Ellis was transferred to the Criminal Intelligence Bureau.

On January 28, 2003, the Department rejected the Plaintiffs' March 2002 grievance, finding that there had been no violation of its policies against discrimination or the claimants' union contract. It admitted, however, that the investigation "raise[d] concerns about the implementation of the Division's reduced overtime policy and the perceived availability of professional opportunities to Special Agents in the [Division's] San Diego office." That same day, the Division announced that Duran and Mercado were being transferred to the Department's Foreign Prosecution Unit. Zuniga subsequently resigned from his position as a special agent.

Based on the departures of Duran and Mercado, Cates was designated as the acting supervisor for the San Diego office; she was the only supervisor in the San Diego office until Ed Ching transferred in to the Division as Ellis's replacement. Promptly after his arrival, Ching admonished Cates that she needed to follow the chain of command regarding any complaint in the office. Similarly, when Coleman was thereafter appointed to take over Duran's job as the Special Agent in Charge of the Division's San Diego office, he admonished Cates about the need for her to follow the appropriate chain of command.

Although Cates had applied to replace Mercado as the permanent tribal team supervisor, had taken the necessary written and oral promotional exams and had the experience and training necessary to do so, she was told that she was ineligible for the position because she did not rank highly enough among those who took the exams. Based on this news, Cates resigned as the acting supervisor and the Division hired Ernest Lopez to fill the permanent position.

In early 2003, Cates conducted inspections of the emergency evacuation plans and protocols at four local casinos. Her investigative reports noted that she had difficulty determining whether the casinos were in compliance with the Gaming Compact because the compact's terms were vague and no standards had been developed to assist in applying them. In one of her reports, Cates noted that one tribe had refused to provide her copies of relevant documents, instead instructing her to bring her own copy machine or hire a copy service.

In keeping with Director Goodson's policy that agents were not to criticize the tribes, Lopez ordered Cates to delete various opinions, conclusions and recommendations from her reports. In addition, Coleman edited a compliance letter Cates drafted regarding one of the tribes, by deleting any reference to her discovery of an unlicensed check cashing business operating there. After Cates and Heintz ran into difficulties during an inspection of another casino, Lopez did not respond to their complaints about the tribe's refusal to produce documents; in fact Director Goodson thereafter ordered an investigation in response to the tribe's written complaint about the agents. (The results of the investigation 7 or 8 months later concluded that the tribe's allegations were "not sustained.")

In April 2003, the Plaintiffs filed this action against the State of California, the Department, the Division, Duran, Director Goodson and Deputy Director Larry Newman, asserting claims for reverse bias racial discrimination, retaliation, intentional infliction of emotional distress, negligent retention and supervision, defamation and aiding and abetting violations of the Fair Employment and Housing Act (Gov. Code,  12940 et seq. (FEHA)). The complaint reiterated the Plaintiffs' contentions that the Defendants gave Zuniga and Mercado preferential treatment and discriminated against the Plaintiffs based on race; it also alleged that the named defendants retaliated against Cates for complaining to her superiors about such favoritism and prevented her from properly performing her job duties relating to the investigation of corruption at various Indian gaming casinos.

In June 2003, Lopez verbally admonished Cates for violating the chain of command by including people outside the normal chain of command as addressees on e-mails to her supervisors and peers; he also gave her a written memorandum, which he told her would be placed in her personnel file, outlining the violations and the applicable rules and instructing her to begin complying with the rules immediately. Cates objected that she was unaware of any order or policy that she had violated; almost a month later, Lopez asserted that she had violated a Division policy prohibiting a subordinate from violating a direct order. Believing that these actions were retaliatory, Cates sent Lopez a written request that the corrective memo be removed from her personnel file, but never received a response.

In late July 2003, Lopez and Coleman wrote a report arising out of an accident that occurred six months earlier in which Cates's state car was damaged by a hit-and-run driver while parked on the street in front of her house. (Notably, neither Lopez nor Coleman worked for the Division at the time of the accident and although Cates had filed an accident report shortly after the accident, none of the Division's then-supervisors felt it necessary to write a separate report about the incident.) A copy of the Lopez/Coleman report, which concluded that Cates's failure to comply with Division policy requiring agents to park their cars off the street contributed to the accident, was placed in Cates's personnel file.

In September 2003, after the Plaintiffs filed a first amended complaint naming Coleman and Lopez as defendants and adding and deleting certain causes of action, the San Diego Union-Tribune published a newspaper article regarding the Plaintiffs' allegations. Based on the article, Coleman issued corrective memoranda to Cates and Heintz, and reassigned them to the cardroom team, on the ground that they had released information to the newspaper that was required to be kept confidential pursuant to the Gaming Compact.

The same afternoon that Coleman gave the corrective memorandum to Cates and Heintz, Coleman and Lopez instructed Cates to deliver a car key to Los Angeles that evening; Cates initially objected to the request because she had evening plans and was scheduled to start her vacation the next day, although after Coleman responded angrily to her, she changed her plans and made the delivery. Based in part on Coleman's response, Cates submitted a formal request for a transfer out of the Division; she later filed a complaint of retaliation and workplace violence against Coleman and Lopez and requested an expedited transfer. Heintz also made repeated requests for a transfer out of the Division.

In January 2004, Cates filed a formal complaint against Coleman and Lopez with the Department's Equal Employment Rights and Resolutions Unit, alleging retaliation, harassment, unwarranted reprimands and discrimination. Later that month, Ching gave her a performance evaluation after receiving input from Coleman and Lopez. The evaluation was critical of a number of aspects of Cates's job performance, including the quality of her inspection reports and lack of compliance with Division orders (including the chain of command), and concluded that Cates had demonstrated a disregard for policy and procedure and been guilty of insubordination. (Cates later challenged her performance evaluation as containing misrepresentations and inaccuracies and the investigator concluded that certain issues "warrant[ed] review" and that the Division should "take appropriate action to address [them].") Shortly after her performance evaluation, Cates was transferred to the Bureau of Medi-Cal Fraud and Elder Abuse after complaining about an incident of workplace violence at the Division. Heintz's request for a transfer was also granted.

This action continued and the Defendants ultimately filed multiple motions for summary judgment. With those motions pending, the Plaintiffs moved to compel production of documents, including Zuniga's personnel records. They also dismissed without prejudice claims by Heintz and Broach for negligent retention and aiding and abetting violations of FEHA, as well as all the Plaintiffs' claims against Director Goodson, Newman and Lopez. The Plaintiffs also opposed the summary judgment motions.

Four days prior to the hearing scheduled for the motions for summary judgment, the court partially granted the Plaintiffs' discovery motion. It ordered the Department to produce Zuniga's overtime reports, payroll records, personnel evaluations from his Official Personnel file and requests for reimbursement of funds for the time period that he worked for the Division, subject to redaction of his social security number and certain other private or privileged information.

The court granted the Defendants' motions for summary judgment, after sustaining almost all the Defendants' voluminous objections to the Plaintiffs' evidence, on the ground that each of the Plaintiffs had failed to make a prima facie case of discrimination or retaliation. The court thereafter denied the Defendants' request for attorney fees, but awarded them their costs of suit and entered judgments in their favor. The Plaintiffs appeal the judgments challenging a number of the court's rulings.

DISCUSSION

1. Discovery of Zuniga's Personnel File

The Plaintiffs contend that the trial court erred insofar as it denied their motion to compel the discovery of Zuniga's personnel records relating to any discipline he received and relating to the suspension of driving privileges in February of 2003. They argue that, in light of their allegations that Zuniga received preferential treatment from the Division's supervisors (including the fact that he was never disciplined despite his violations of Division rules, policies and procedures), they were entitled to discover those records.

Peace officer personnel records and information obtained from those records are generally regarded as confidential and thus are not subject to disclosure to parties in a criminal or civil proceeding, except as permitted by Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1226; Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283.) We would normally review the trial court's decision to deny disclosure of certain documents contained in the personnel file for an abuse of discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228.) However, we cannot do so here because the Plaintiffs did not designate either the reporter's transcript of the in camera review hearing or the personnel file that was submitted for the court's review therein to be included in the record. (See id. at pp. 1228-1232.) Parties who seek to challenge an order or decision of the trial court bear the burden of providing an adequate record to permit assessment of whether error occurred; if they fail to do so, we must presume the validity of the order or decision and thus resolve their appellate claim of error against them. (Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) Based on the nature of the record before us, we must reject the Plaintiffs' contention of error.

2. Denial of a Request by Cates and Ellis for Leave to Amend to Assert a Claim for

Retaliation under Section 1102.5 Against the Division

After the court sustained the Defendants' demurrer to the Plaintiffs' second amended complaint without leave to amend as to the claim by Cates and Ellis against the individual Defendants for retaliation in violation of sections 1102.5 and 1105, Cates and Ellis requested leave to amend to assert a cause of action for violation of section 1102.5 against the State of California and the Division, but the court denied that request.

On appeal, Cates and Ellis contend that the superior court erred in sustaining without leave to amend the individual Defendants' demurrer to their claim for retaliation in violation of section 1102.5. Specifically, they contend that the court erred as a matter of law in ruling that state employees are not subject to the protections afforded by that statute, but can only assert a whistleblower retaliation claim under Government Code section 8547 et. seq. However, the court did not sustain the individual Defendants' demurrer to this cause of action on that basis, but instead on the ground that a claim under section 1102.5 can only be asserted against an employer, not against supervisory employees. Cates and Ellis do not make any argument in their appellate briefs regarding the propriety of the court's determination in this regard and thus have waived any such challenge on appeal. (See Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

The court did, however, deny Cates and Ellis leave to amend to state a section 1102.5 cause of action against the Division and the State of California based on the conclusion that as a matter of law they were not subject to the statute's protections. For this reason, it is appropriate to reach their argument on its merits. Although a denial of leave to amend is generally reviewed for an abuse of discretion, here the superior court did not deny the motion to amend based on an exercise of its discretion but instead based on a legal determination that the proposed cause of action was deficient. As such, the court's ruling is subject to de novo review. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801; Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417.)

A. Applicability of Section 1102.5

Section 1102.5, subdivision (b) provides that "[a]n employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." For the purposes of this statute, "employee" includes "any individual employed by the state or any subdivision thereof . . . ." ( 1106; see generally Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 330 (Campbell) [recognizing that "[t]he addition of section 1106 . . . was intended to extend the rights available to private employees to include public employees"].)

Here, although there is no dispute that the Division is a subdivision of the State of California (see Gov. Code,  11152; Bus. & Prof. Code,  19801; http://ag.ca.gov/ gambling/), the superior court relied on language in Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909 (Palmer) as the basis for its conclusion that a state employee is not entitled to the protections of section 1102.5. Specifically, the court relied on Palmer's statement that "[t]he only statutory authorization for a civil damage action based on alleged retaliation against a [public] employee for reporting improper activity is [Government Code] section 8547.10." (Palmer, supra, 107 Cal.App.4th at p. 909.) However, notwithstanding this language, the Palmer court was not faced with the issue, nor did it engage in any analysis, of whether a public employee was also entitled to pursue a claim for retaliation in violation of section 1102.5. Notably, the Defendants do not make any argument on appeal that Palmer or any other authority supports the conclusion that a public employee is not protected by section 1102.5. Thus, we conclude that the superior court erred in denying the request by Cates and Ellis to amend their complaint on the basis of Palmer.

B. Was the Denial of Leave to Amend Harmless?

The Defendants nonetheless respond that any error by the superior court in denying leave to amend was harmless. In this regard, they contend that the proposed section 1102.5 cause of action was insufficient to state a cause of action because it failed to allege that (i) Cates and Ellis had reported a violation of federal or state statute or regulation, (ii) they made the report to a governmental or law enforcement agency with investigative oversight of the matters complained of, and (iii) they had exhausted their administrative remedies under section 98.7. However, in this context, a denial of leave to amend can be harmless only if there is no reasonable possibility that Cates and Ellis could correct any deficiency in the proposed pleading. (See CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.) We consider these arguments in turn below.

i. Violation of Federal or State Statute or Regulation

Complaints to an employer regarding matters that relate exclusively to internal personnel issues generally do not implicate a violation of federal or state statute or regulation and thus will not support a claim under section 1102.5. (Patten v. GrantJointUnionHigh School Dist. (2005) 134 Cal.App.4th 1378, 1384-1385.) Here, however, the allegations by Cates and Ellis were that they were subjected to retaliation for complaining about (i) management's revisions to the reports regarding an investigation of a cardroom license applicant, (ii) the Division's failure to require the tribes to comply with tribal obligations under the Gaming Compact (and thwarting Cates's and Ellis's efforts to effectuate such compliance), and (iii) Zuniga's unjustified and unearned overtime. The second of these clearly does not relate to internal personnel issues. Further, although the complaint did not specifically allege what state or federal law or regulations were violated by this conduct, there is a reasonable possibility that Cates and Ellis could amend their complaint to do so. Accordingly, this does not provide a basis for concluding that the denial of leave to amend was harmless.

ii. Report Made to an Appropriate Agency

The Defendants contend that section 1102.5 as in effect in 2003 (when the Plaintiffs filed their grievance with the Division) authorized a whistleblower action only when the employee reported the alleged employer misconduct to a public agency having oversight of the subject matter of the complaint and that the proposed allegations failed to establish that Cates and Ellis reported their complaints with an appropriate agency. ( 1102.5 was amended effective Jan. 1, 2004 to expressly provide that "[a] report made by an employee of a government agency to his or her employer is a disclosure of information" subject to the statute's protections. (Stats. 2003, ch. 484 (S.B. 777)  2.) However, the former version of section 1102.5 has been consistently interpreted to protect a public employee who reports legal violations to his or her own employer rather than to a separate public agency. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1308, 1312-1313 [state employee who uncovered the unauthorized use of state assets and reported her findings to a supervisor who had investigative authority over the assets qualified as a whistleblower under section 1102.5, subd. (b); Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241-243.) Further, Cates and Ellis based their proposed claim in part on complaints that related to the Division's area of expertise, to wit, oversight of tribal gaming and cardroom operations. Consequently, the proposed allegations are not deficient, as a matter of law, to support a cause of action for violation of section 1102.5.

iii. Exhaustion of Administrative Remedies

The Defendants' final argument that the denial of leave to amend was harmless is that the proposed cause of action must fail in any event because Cates and Ellis have not alleged that they exhausted their administrative remedies under section 98.7. The Defendants contend that, in accordance with Campbell, supra, 35 Cal.4th 311, Cates and Ellis were required to file a discrimination claim with the Labor Commissioner as a prerequisite to bringing a civil action for damages.

There are several problems with this argument. First, the Defendants did not make this argument in the proceedings below. Second, as the Defendants concede, Campbell merely held that a former employee of the Regents of the University of California was required to exhaust the Regents' internal administrative process for handling whistleblower claims before bringing a civil action for violations of section 1102.5; Campbell did not hold, as the Defendants contend here, that every employee is required to file an administrative complaint under section 98.7 before bringing a civil action for violations of section 1102.5. (See Campbell, supra, 35 Cal.4th at pp. 329-331.)

Moreover, this court has previously held that compliance with the procedure established by section 98.7 is not required before an employee may pursue her statutory discrimination claims under former analogous provisions of the Labor Code. (Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1359-1360, citing  98.7. subd. (f).) In light of this court's holding in Murray, and in the absence of any authority establishing that compliance with section 98.7 is required as a prerequisite to a civil action pursuant to section 1102.5, the Defendants' final argument regarding the sufficiency of the allegations, and with it their harmlessness contention, fail.

C. Conclusion

For the foregoing reasons, we conclude that the court erred in denying Cates's and Ellis's request for leave to amend to assert a claim for violations of section 1102.5.

3. Summary Judgment

Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) Where the defendant is the moving party, it must show that a cause of action has no merit by putting forth evidence that either one or more elements of the cause of action, even if separately pleaded, cannot be established or that a complete defense exists thereto. (Code Civ. Proc.,  437c, subd. (o)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to establish that a triable issue of material fact exists. (Code Civ. Proc.,  437c, subd. (p)(2).)

On appeal, we review de novo the trial court's decision to grant summary judgment. We independently determine whether the record supports the trial court's conclusion that the Plaintiffs' discrimination and retaliation claims fail as a matter of law, and we are not bound by the trial court's stated reasons or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) "All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment." (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)

A. The Evidentiary Rulings

The Plaintiffs contend on appeal that the trial court erred in sustaining evidentiary objections to various portions of the evidence they submitted in opposition to the summary judgment motions. We generally review a trial court's evidentiary rulings for an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; see generally Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234-238; compare Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 12-13 [holding that a trial court's decision overruling a hearsay objection to evidence submitted in connection with a motion for summary judgment is subject to de novo review on appeal].)

Here, the Defendants filed extensive objections to the evidence the Plaintiffs submitted in opposition to their motions for summary judgment. Not infrequently, numerous objections were made to lengthy paragraphs in the Plaintiffs' declarations without any distinction as to precisely which objections were being made as to which statements in the paragraph. (This was particularly notable as to the Broach and Heintz declarations.) In the formal order granting summary judgment, the trial court issued a ruling sustaining the vast majority of the Defendants' objections without any clear delineation of which objections were being sustained as to which statements in the declarations.

Although we are sympathetic to the plight of the superior court when faced with such numerous objections to large segments of evidentiary material, its issuance of blanket rulings on those objections strongly suggests that it failed to accord each individual objection discrete consideration. The effect of this practice is to transfer the job of ruling on the objections to this court, a task for which, because of the nature of appellate review, this court is not well suited. (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 236.) Although this approach undoubtedly eased the court's burden, it did not satisfy the court's duty to rule on evidentiary objections in a meaningful way. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784.)

Here, the Defendants objected to the Plaintiffs' declarations on various grounds, including lack of personal knowledge, lack of foundation, immateriality, hearsay, inadmissible opinion, speculation, legal conclusion, misstatement of the evidence and contradiction of prior testimony or interrogatory responses. On appeal, the Plaintiffs challenge only the court's rulings sustaining the hearsay and lack of personal knowledge objections to those declarations; the Defendants do not provide any meaningful response to the Plaintiffs' challenges, but fault the Plaintiffs for failing to make any argument as to why specific objections to specific statements were improperly sustained.

In determining whether the superior court erred in sustaining objections to the Plaintiffs' declarations, we are mindful that we must view the evidence submitted in connection with a motion for summary judgment in a light favorable to the Plaintiffs and to resolve "any evidentiary doubts or ambiguities in [the Plaintiffs'] favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Having reviewed the record with this in mind, we can only conclude that the trial court properly sustained a limited number of objections (such as hearsay objections to the Plaintiffs' declarations as to statements the Defendants made to third parties outside their presence). Further, the record does not permit a determination of many of the Defendants' objections that the declarants lacked personal knowledge about the subject matter. While those objections might have been well taken, their merit cannot be adequately resolved on the record before us and thus we would be inclined to resolve them in the Plaintiffs' favor.

We need not spend too much time trying to determine whether the court erred in sustaining objections to each of the declarants' statements, however, because most of the Plaintiffs' evidence to which the Defendants objected was reiterated in the evidence the Defendants themselves submitted in support of the motions. The Defendants implicitly acknowledge this, but contend that the Plaintiffs are not entitled to rely on such evidence since their opposition papers below did not cite it. We disagree. (Code Civ. Proc.,  437c, subd. (c) ["[i]n determining whether the papers show that there is no triable issue as to any material fact[,] the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court," italics added]; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 [moving defendant must "demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial"].) We have considered all the Defendants' evidence, as well as the Plaintiffs' evidence that is not obviously objectionable, in determining whether the trial court's decision to grant summary judgment in favor of the Defendants was appropriate.

B. The Plaintiffs' Discrimination Claims

FEHA makes it an unlawful employment practice for an employer "to discharge [a] person from employment or . . . to discriminate against [that] person in compensation or in terms, conditions, or privileges of employment" based on that person's race or national origin. (Gov. Code,  12940, subd. (a).) In general, there are two types of illegal employment discrimination under FEHA: disparate treatment and disparate impact. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129.) The Plaintiffs' claims here are based on a disparate treatment theory, which requires a showing that the employer acted with discriminatory intent. (Ibid.)

To succeed on a disparate treatment claim at trial, the Plaintiffs have the initial burden of establishing a prima facie case of discrimination, to wit, a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355 (Guz).) Based on the inherent difficulties of showing intentional discrimination, courts have generally adopted a multifactor test to determine if a plaintiff was subject to disparate treatment. Pursuant to that test, the plaintiff must generally show that: he was a member of a protected class, he was qualified for the position he sought, he suffered an adverse employment action and there were circumstances suggesting that the employer acted with a discriminatory motive. (Ibid., adopting the test applicable to federal discrimination claims in accordance with McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)

On a defense motion for summary judgment against a disparate treatment claim, the defendant must show either that one of these elements cannot be established or that there were one or more legitimate, nondiscriminatory reasons underlying the adverse employment action. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2005),  19:728, p. 19-81; Guz, supra, 24 Cal.4th at p. 356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098.) The Defendants here argue that the superior court properly granted summary judgment because (i) there was no triable issue of fact as to whether the Plaintiffs suffered an adverse employment action as a result of not being Hispanic, (ii) there was no evidence of a causal connection between the alleged adverse employment action and the Plaintiffs' races or national origins, (iii) there were legitimate, nondiscriminatory reasons for their actions, and (iv) the Plaintiffs failed to present evidence showing a triable issue of fact as to whether those reasons were pretextual.

i. Adverse Employment Action

Although Government Code section 12490, subdivision (a) does not use the term "adverse employment action," the cases applying that statute describe its discrimination component as requiring an "adverse employment action," to wit, a "substantial adverse change in the terms and conditions of the plaintiff's employment." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers).) For the purpose of applying the statute, an adverse employment action is not limited to "ultimate" employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for career advancement. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054 (Yanowitz) [noting that the statutory definition is interpreted broadly to further FEHA's fundamental antidiscrimination purposes]; see Akers, supra, 95 Cal.App.4th 1441.)

An isolated incident, such as a delay in the delivery of a single paycheck, a failure to receive an overtime check or an early job change, does not constitute an adverse employment action. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512.) Further, "a mere offensive utterance or . . . a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940[, subdivision] (a)[.]" (Yanowitz, supra, 36 Cal.4th at p. 1054.) However, a series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse (id. at p. 1055; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373-374) and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence. (Thomas v. Department of Corrections, supra, 77 Cal.App.4th at p. 510.)

Here, the Plaintiffs claim generally that the Defendants' denial of opportunities to earn substantial overtime compensation and to participate in trainings or events that would have promoted their careers constituted adverse employment actions. We agree that although an infrequent denial of such opportunities would not constitute adverse employment actions under FEHA (see, e.g., Rabinovitz v. Pena (7th Cir. 1996) 89 F.3d 482, 486, 488 [performance evaluation rating the employee as "fully successful" rather than "exceptional" as in prior years that had the effect of precluding the employee from receiving a $600 discretionary bonus did not constitute an adverse employment action]), more consistent denials of such opportunities are sufficient to support a claim under Government Code section 12940, subdivision (a), provided that such actions collectively have a material affect on the terms and conditions of employment (i.e., the employee's overall compensation potential and opportunities for advancement). (See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814 [denial of a promotion and requests for overtime constituted adverse employment actions]; Thomas v. Department of Corrections, supra, 77 Cal.App.4th at p. 510 [suggesting that an employer's assignment to an employee of more duties than other employees in the same unit would constitute an adverse employment action if accompanied by evidence that the assignment practice had a substantial and detrimental effect on the affected employee's employment]; Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 374 [reduction in authority and negative performance reviews may also be sufficient]; see generally Yanowitz, supra, 36 Cal.4th at pp. 1053-1054.)

The Defendants suggest, however, that denials of benefits that are entirely discretionary cannot (apparently as a matter of law) constitute an adverse employment action. The difficulty with this argument is that many employment decisions, including hiring and firing, are "discretionary" but may nonetheless give rise to discrimination claims. Thus the fact that a particular decision is discretionary, standing alone, is not determinative of whether it constitutes an adverse employment action. Rather, as described above, the question is whether a particular action or decision (individually or collectively with other employment actions or decisions affecting the person in question) has a material affect on the terms and conditions of that person's employment. Here, we conclude that the evidence was sufficient to establish a prima facie showing that the extent and nature of the opportunities made available to Zuniga, but not to the Plaintiffs, had a material affect on the terms and conditions of the Plaintiffs' employment and thus constituted an adverse employment action for purposes of the statute.

The Defendants nonetheless contend that the fact Zuniga was permitted to work substantially more overtime hours than his peers, and to receive compensation for work beyond the cap, did not constitute an adverse employment action because the evidence showed that the Plaintiffs never specifically requested the opportunity to work more overtime and had such requests denied. However, although a number of published cases address whether the denial of an employee's requests for training or equipment constitutes an adverse employment action (e.g., Griffith v. City of Des Moines (8th Cir. 2004) 387 F.3d 733, 737), the Defendants cite no authority for the proposition that an employee request is always required as a precondition to asserting a claim for discrimination.

Further, we cannot conclude based on the evidence in the record before us that the Plaintiffs are precluded from asserting a discrimination claim on that basis here. It is undisputed that, from the outset of his employment with the Division, Zuniga earned overtime compensation well above what other agents earned and that the Plaintiffs repeatedly complained about this circumstance to their superiors. Even after the Division adopted its written policy expressly capping an agent's paid monthly overtime at "a maximum of 16 hours per month" and further providing that any overtime in excess of that amount was to be "only authorized when . . . absolutely necessary and unavoidable" and compensated by additional time off rather than pay, Zuniga continued to work, and receive compensation for, overtime in excess of the cap every month.

By contrast, other evidence showed that after the issuance of this policy, (1) the Plaintiffs were specifically and repeatedly told by their supervisors that they were required to abide by the cap on overtime work; (2) Heintz made several requests to work overtime to complete an on-going investigation, but Duran instructed Ellis to deny the requests due to the cap; (3) Broach and Cates were originally asked to participate in a "high priority" investigation with Zuniga, but were later removed from the project after Zuniga met with Mercado and Duran privately, allowing Zuniga to earn overtime as a result of working on the project alone; and (4) certain projects that the Plaintiffs had been working on were canceled or limited in scope based on the overtime cap.

Further, although there is evidence that Zuniga requested to be assigned to cover certain cardroom operations beginning in November 2001, the Defendants did not present evidence showing that the only reason Zuniga had the opportunities for overtime, through special assignments and otherwise, that were not offered to his peers, was because he simply asked for them. Under these circumstances, we cannot conclude as a matter of law that the Plaintiffs' failure to ask to work overtime precludes them from suing for discrimination in the assignment of work. (See Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 1115, 1124-1125 (Chuang) [defendant employer's contention that its denial of a tenured position to the plaintiff did not constitute an adverse employment action because the plaintiff did not file a formal application for such a position was unavailing where the plaintiff had informally requested a tenured position, he was promised he would be placed in such a position once one was available and other employees had been given tenure without formally applying].)

For similar reasons, we conclude that the Defendants' evidence in support of their motions for summary judgment does not establish that the training and event opportunities provided to Zuniga, but not also provided to the Plaintiffs, were so inconsequential overall as to not constitute part of an overall adverse employment action. (We need not address, and thus do not conclude, that the denial of such opportunities alone would be sufficient to constitute a prima facie showing of an adverse employment action.) Shortly after Zuniga started with the Division, Duran invited him to assist with the Attorney General's tour of local casinos, notwithstanding that Zuniga's primary assignment was on cardrooms rather than tribal gaming operations. From October to November 2001, Zuniga traveled to Washington, D.C. with Duran to interview a witness, attended two Los Angeles conferences with him and assisted him with a tour of Los Angeles cardrooms. In January 2002, Zuniga went with Duran to a meeting of the Gambling Control Commission meeting in San Francisco, despite the fact that attendance at such meetings was restricted to supervisory level personnel and that other agents in the Division had been instructed not to communicate with the commission. None of the Plaintiffs was offered these or similar opportunities.

The evidence discussed above is sufficient to make a prima facie showing that the Plaintiffs experienced overall adverse employment actions. For this reason, we need not address the Plaintiffs' additional proffered evidence in support of their discrimination claims (e.g., the denial of telecommuting privileges, etc.); however, the fact that we have not discussed this additional evidence in detail here is not intended as an indication that such evidence is inadmissible on remand.