Jackson v. DMV

Filed 3/28/07 Jackson v. DMV CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In this employment discrimination case, plaintiff Linda Jackson asserted she was subjected to racial discrimination and retaliation by her supervisor, Hector Gutierrez, at defendant Department of Motor Vehicles (the Department), resulting in the termination of her employment. The trial court granted summary judgment on the grounds the Department had established a legitimate business reason for its actions and Jackson had failed to show a triable issue as to whether her termination was based on a discriminatory or retaliatory motive.

We conclude the trial courts ruling was correct on Jacksons causes of action for racial discrimination and harassment, but was incorrect on her causes of action for retaliation and failure to investigate and remediate the alleged retaliation. There is a triable issue as to whether, after he learned Jackson intended to file a discrimination complaint against him, Gutierrez trumped up or exaggerated instances of misconduct by Jackson to justify the reduction of her pay and ultimately the termination of her employment. There is also a triable issue as to whether the Department failed to complete its investigation of Jacksons discrimination complaint in a timely manner and thereby failed to take all reasonable steps necessary to prevent Gutierrezs retaliation against Jackson.

Accordingly, we will reverse, in part, the judgment in favor of the Department.

FACTUAL AND PROCEDURAL BACKGROUND

In the fall of 1999, Gutierrez interviewed Jackson, who is African American, for a position at the Department. Upon Gutierrezs recommendation, Jackson was hired and began working as a staff services analyst on November 2, 1999. About a year later, Jackson passed a promotional exam, and Gutierrez recommended her for promotion. Jackson was promoted effective May 2, 2001.

In September 2001, Jackson discovered that Gutierrez had asked the former purchasing assistant in their section to train the newly hired purchasing assistant. On September 11, Jackson told Gutierrez she should be training the new purchasing assistant, but Gutierrez disagreed. When Gutierrez refused to change his decision, Jackson complained to his supervisor, Mary Winkler, the following day. Winkler supported Gutierrezs decision. Jackson then scheduled a meeting with Winklers supervisor, Candy Wohlford, for September 13.

Before Jackson met with Wohlford, she was called into a meeting with Gutierrez and Winkler to discuss the previous days events. She then met with Wohlford, who told her that decisions about employee training were within Gutierrezs discretion.

Sometime that same day, Jackson filed an internal discrimination complaint with the Department against Gutierrez and Winkler. Before she filed the complaint, she told Gutierrez and Winkler she would be filing it.^[1] In her complaint, Jackson complained of discrimination based on color and race and of retaliation. Specifically, she claimed Gutierrez and Winkler retaliated against her for meeting with Wohlford by warning her of written disciplinary actions.

On September 19, Gutierrez gave Jackson a corrective memorandum that purported to document [their] meeting of September 13, 2001, about [her] discourteous conduct and [her] unwillingness to perform the full range of [her] duties. The memorandum described not only Jacksons alleged discourteous conduct on September 12 but also several incidents of discourteous behavior by Jackson that allegedly occurred in March and April.

Notwithstanding this memorandum, in October 2001, at Gutierrezs recommendation, Jackson passed probation in her new position. According to Gutierrez, however, her behavior did not improve. Consequently, in December 2001, he recommended formal adverse action against her. As a result, beginning in January 2002, Jackson received a 5 percent pay reduction for six months. The notice of adverse action described a number of instances of alleged misconduct by Jackson between November 6 and December 14 and also incorporated the previous incidents documented in the corrective memorandum.

On February 14, 2002, a confrontation occurred between Jackson and Gutierrez. Following that incident, Gutierrez and Winkler recommended the termination of Jacksons employment, and Wohlford concurred. On or about March 27, Jackson was notified of the termination of her employment effective April 5, 2002. The notice of adverse action described instances of alleged misconduct by Jackson between December 21, 2001, and March 8, 2002, including the February 14 incident.

During her employment with the Department, Jackson was the only African American under Gutierrezs supervision.

Jackson filed a complaint with the Department of Fair Employment and Housing on or about March 28, 2002, and after receiving a right to sue letter, commenced this action in March 2003. She filed her first amended complaint (the operative complaint here) in January 2005. That complaint alleged four causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code,^[2] 12900 et seq.): (1) racial discrimination; (2) retaliation; (3) failure to prevent discrimination or harassment; and (4) harassment (hostile work environment).

The Department moved for summary judgment/summary adjudication in August 2005 on the grounds Jackson could not establish a discriminatory or retaliatory motive or a hostile environment and there was no discrimination or harassment.

After concluding the Department had met its initial burden of showing that the actions taken by its managers were not due to race or retaliation . . . but were due to a legitimate business reason, the trial court concluded Jackson had produced no evidence, sufficient to create a triable issue of material fact, that the harassment and discrimination were based on race, rather than the ordinary frictions of the workplace and that Jacksons evidence of retaliation is also insufficient to create a triable issue of material fact. Accordingly, the trial court granted the Departments motion for summary judgment. Judgment was entered in January 2006, and Jackson timely appealed.

DISCUSSION

I

Standard Of Review

A defendant may move for summary judgment if it is contended that the action has no merit . . . . (Code Civ. Proc., 437c, subd. (a).) A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Id., subd. (p)(2).) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Id., subd. (c).)

Because the trial courts determination [on a motion for summary judgment] is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving partys showing has established facts which justify a judgment in movants favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

Although we review the summary judgment de novo, that does not mean we engage in a ground-up analysis of the summary judgment motion independent of the arguments made by the appellant in her opening brief. Even on review of a summary judgment, [t]he appellant has the burden of showing error occurred. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) [D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellants responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. (Lewis v. County of Sacramento(2001) 93 Cal.App.4th 107, 116.) When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeit]ed. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Here, although one of the headings in Jacksons opening brief claims she Has Stated A Prima Faci[e] Case Of Discrimination And Harassment Due To Her Race, the argument that follows does not address any claimed harassment or hostile work environment. Under these circumstances, we conclude Jackson has forfeited any argument that the trial court erred in summarily adjudicating, in favor of the Department, her fourth cause of action (harassment/hostile work environment). Accordingly, the discussion that follows will be limited to her causes of action for racial discrimination, retaliation, and failure to prevent discrimination.

II

Facts Not Included In Separate Statement

The Departments separate statement of material facts in support of its motion for summary judgment/summary adjudication included 21 facts on which the Departments motion was based.^[3] The statement of facts in its memorandum of points and authorities, however, included numerous additional facts that were drawn from the evidence submitted in support of the motion but that were not included in the separate statement of material facts.

In her opposition to the motion, Jackson argued the trial court should treat those facts included in the Departments memorandum of points and authorities but not in its separate statement as in dispute.

In reply, the Department asserted that any fact cited in the memorandum of points and authorities [but] not listed in the separate statement . . . is not material. The Department further argued that the court was entitled to consider[] non-material facts that are supported by admissible evidence. In support of its argument, the Department cited this courts decision in Fenn v. Sherriff (2003) 109 Cal.App.4th 1466.

The trial court noted the lack of congruence between the Departments separate statement and the statement of facts in its memorandum of points and authorities but refused to treat all of the additional facts as disputed because plaintiff includes the facts in her Statement of Material Facts, which is responded to . . . by defendant.

On appeal, Jackson contends the trial court erred in not finding disputed facts. We take this as an argument that the trial court erred in not treating the additional facts in the Departments memorandum of points and authorities as disputed simply because they were not included in the Departments separate statement.

We find no error -- at least, not by the trial court. If, as the Department asserts, the additional facts in its memorandum of points and authorities were non-material, then the Department had no business putting them in its moving papers. [T]he courts sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a triable issue as to any material fact. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926, italics added.) If a fact is not material, then it can have no bearing on the proper outcome of a summary judgment motion, and paper should not be wasted putting it before the court.

The Departments assertion that under Fenn v. Sherriff, non-material facts can[] be provided in [the] memorandum [of points and authorities] to aid in the trial courts deliberation is based on a gross misreading of that case. In Fenn, we reiterated that [w]hen a party applies for summary judgment, it must present a statement of undisputed facts specifying each fact necessary for the relief it seeks. (Fenn v. Sherriff, supra, 109 Cal.App.4th at p. 1480.) We went on to note, however, that a court may grant summary judgment based on evidence not referenced in the moving partys separate statement in some limited circumstances, such as [w]here the facts before the court are relatively simple, the evidence . . . was clearly called to the attention of court and counsel, and the moving partys entitlement to judgment in its favor is obvious to the court and to the [opposing] party. (Id. at p. 1481.)

Contrary to the Departments belief, Fenn in no way authorizes or condones the practice of litigants deliberately filling their memoranda of points and authorities with nonmaterial facts to aid in the trial courts deliberation. If a fact is material, it should be included in the separate statement of material facts; if it is not material, it should not be included in the moving papers, because by definition it can provide no aid to the courts deliberation on whether there is a triable issue of material fact. Rather than approving the proliferation of nonmaterial facts, Fenn merely approved the narrow rule articulated in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, which is that a trial court is not bound to deny a motion for summary judgment simply because of a mere procedural failure by the moving party in failing to include [a] dispositive fact in its separate statement, so long as the opposing party was fully advised of the issues to be addressed and . . . given adequate notice of what facts it [had to] rebut in order to prevail. (Fenn v. Sherriff, supra, 109 Cal.App.4th at p. 1481.)

Accordingly, we disagree with the Department that it was proper to pack its memorandum of points and authorities with immaterial facts. At the same time, we disagree with Jackson that the trial court erred in not finding these additional facts disputed. There is no authority for the proposition that a court must treat a fact left out of the separate statement as disputed. As explained in Fenn, it may be an abuse of discretion for a court to rely on a material fact omitted from the separate statement in granting summary judgment, but that is different than requiring the court to treat the fact as disputed simply because of where it appears. In any event, because the Department readily avers that the only material facts in this matter are those listed in [its] separate statement of undisputed material facts, we will take the agency at its word, and in deciding whether the trial court erred in granting summary judgment, we will disregard as immaterial those facts the Department failed to include in its separate statement.

III

Racial Discrimination

It is unlawful under the FEHA for an employer to discharge [a] person from employment or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the persons race. ( 12940, subd. (a).) To prove a prima facie case of employment discrimination, [g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he . . . was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, . . . and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) A defendant employer may obtain summary judgment in two ways: by presenting admissible evidence that one or more of plaintiffs prima facie elements is lacking, or that the adverse employment action was based on a legitimate, nondiscriminatory reason. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)

[T]o avoid summary judgment, an employee claiming discrimination must 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. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)

In her complaint, Jackson alleged she was subjected to two adverse actions, the second resulting in her termination. Presumably, she was referring to the pay reduction in January 2002 and the termination of her employment in April 2002.

In moving for summary judgment, the Department offered evidence the pay reduction and termination of Jacksons employment were based on numerous instances of inappropriate behavior, including insubordination and disobedience. Gutierrez, Winkler, and Wohlford all specifically denied their actions were motivated by Jacksons race. This was sufficient to carry the Departments initial burden of showing the adverse employment actions were based on legitimate, nondiscriminatory reasons. Accordingly, the burden shifted to Jackson to offer substantial evidence that [the Department]s stated nondiscriminatory reason for the adverse action[s] was untrue or pretextual, or evidence [the Department] acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude [the Department] engaged in intentional discrimination. (Hersant v. Department of Social Services, supra,57 Cal.App.4th at pp. 1004-1005.) Thus, on appeal Jackson must point to substantial evidence in the record that would support a reasonable inference the Department reduced her pay and then fired her because of her race, rather than her behavior. She has failed to do so.

In determining whether Jackson has shown substantial evidence of racial discrimination, it is important to remember that the person who instituted both adverse employment actions -- Jacksons supervisor, Gutierrez -- was also the person who recommended Jacksons hiring in the fall of 1999, her promotion in the spring of 2001, and her passing of probation in her new position in October 2001. This is important because where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive. (Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F.3d 267, 270-271.)

Jackson contends this rule should not apply here because the action . . . occurred over a period of years and didnt accelerate until after [she] filed her complaint of discrimination. It is true the hiring occurred more than two years before the pay reduction and subsequent firing, but Jackson ignores the fact that Gutierrez recommended her for promotion and for passing probation in 2001, just months (rather than years) before the adverse actions. Under these circumstances, the inference that Gutierrez did not act out of racial animus remains valid. Moreover, while the fact that the adverse actions occurred after Jackson filed her discrimination complaint obviously has a bearing on her retaliation claim, it has no tendency in reason to show that Gutierrez instituted the adverse actions because of Jacksons race.

Jackson suggests she can raise a triable issue as to whether the adverse employment actions were motivated by discriminatory animus simply by showing that [the Departments] proffered explanation [for the actions] is unworthy of credence. According to her, In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.

There are two problems with this argument. First, Jackson does not undertake any detailed effort to show that the Departments explanation for the adverse actions against her was false. Instead, she states in conclusory terms that she denies the substance of both adverse actions and has refuted these allegations. That is hardly enough to meet her burden as appellant to show trial court error. (See Lewis v. County of Sacramento, supra,93 Cal.App.4th at p. 116.)

Second, and more importantly, contrary to what Jackson appears to believe, an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.] Proof that the employers proffered reasons are unworthy of credence may considerably assist a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citations.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employers actions. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360-361.)

In an attempt to identify such evidence, Jackson contends there is an entire body of evidence from [her] deposition which would indicate that she, in fact, was treated differently than similarly situated non-African American fellow employees. What she appears to be referring to are the following incidents, mentioned earlier in her brief:

(1) She was left out of participating in a meeting in which the rest of her section participated;

(2) She was excluded from preparing for division activities for the holidays in 2000;

(3) She was left out of working on the closing of the Oakland office with the rest of her section;

(4) She was called a brown noser during a meeting of her entire section;^[4]and

(5) After she filed her discrimination complaint, Gutierrez had meetings with her every week, while he met with other analysts only every other week.

In relying on these incidents, Jacksons theory appears to be that because she was the only African American under Gutierrezs supervision, any different treatment she received while under his supervision can reasonably be attributed to her race, and because she was treated differently because of her race in those incidents, it is reasonable to infer the reduction in pay and termination of her employment were racially motivated as well. We are not persuaded.

Even considered as a whole, the foregoing incidents do not give rise to a reasonable inference that Jackson was treated differently in those incidents because of her race or that Gutierrez subsequently instituted the reduction of Jacksons pay and then the termination of her employment because of her race. Even when viewed in the light most favorable to Jackson, these incidents establish nothing more than that over the course of two years employment, Gutierrez left her out of one meeting, excluded her from preparing for the holidays once, left her out of working on the closing of the Oakland office, failed to immediately disapprove of other employees calling her a brown noser, and subjected her to weekly meetings after she complained about him discriminating against her. There is nothing, however, to suggest these incidents were motivated by racial animus on the part of Gutierrez, especially in light of the evidence that Gutierrez was, during the same time period, responsible for Jacksons hiring, promotion, and passing of probation. The fact that Jackson was the only African American under Gutierrezs supervision is not enough to support a reasonable inference that race was a motivating factor in these events. And absent such an inference, there is no reasonable basis to infer Gutierrezs recommendations to reduce Jacksons pay and later terminate her employment were racially motivated.

For these reasons, the trial court did not err in summarily adjudicating, in favor of the Department, Jacksons first cause of action for racial discrimination and the part of her third cause of action alleging Jackson was subjected to discrimination due to her race.

IV

Retaliation

It is unlawful under the FEHA for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under the FEHA. ( 12940, subd. (h).)

To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

A causal link may be established with evidence demonstrating that the employer was aware of the protected activity and the adverse action followed within a relatively short time. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018.)

Here, there is no dispute Jackson engaged in a protected activity, no dispute she was subjected to adverse employment actions, and no dispute the Department produced evidence of legitimate, nonretaliatory reasons for those actions. The only question is whether Jackson offered evidence sufficient to create a triable issue of fact as to whether there was a causal link between her protected activity and the adverse actions and whether the Departments proffered reasons for its actions were pretextual.

At the outset, we pause to address two arguments by the Department. First, the Department attempts to discount the significance of the September 2001 counseling memorandum by arguing that it cannot be considered an adverse action as a matter of law because it did not materially affect the terms, conditions, or privileges of Jacksons employment. The Department cites Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, in support of this argument, but misapplies the rule stated in that case. In Yanowitz, the Supreme Court explained that an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable. (Id. at p. 1052, italics added.) Thus, it is true the September 2001 counseling memorandum would have had to materially affect the terms, conditions, or privileges of Jacksons employment to be separately actionable. But even if the memorandum is not separately actionable under this rule, it still has a significant bearing on Jacksons retaliation claim because the incidents documented in that memorandum were noted in the notice of adverse action relating to the pay reduction -- an action that unquestionably qualified as an actionable adverse employment action against Jackson. [A]lthough written criticisms alone are inadequate to support a retaliation claim, where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment, this conduct is actionable. (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1457.)

Second, the Department places great emphasis on Gutierrezs testimony that when he was drafting the counseling memorandum, he had no knowledge that Ms. Jackson had filed a complaint with the Equal Employment Opportunity office of the [Department] on the afternoon of September 13th. Given the Departments position that the counseling memorandum was not an adverse employment action, this point seems of little import. Significantly, Gutierrez did not deny he knew of Jacksons discrimination complaint when he recommended the pay reduction in December 2001 and then the termination of her employment in March 2002. In any event, Jacksons evidence established that sometime before she filed the complaint, she told Gutierrez and Winkler she would be filing it. Threatening to file a discrimination complaint is a protected activity. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal.App.4th at p. 1019.) Thus, regardless of whether Gutierrez actually knew Jackson had filed a complaint, the evidence (viewed in the light most favorable to Jackson) shows he was aware she had engaged in a protected activity before he drafted the corrective memorandum.

The dispositive question, however, is whether there is evidence in the record from which a reasonable trier of fact could infer the adverse employment actions ultimately taken against Jackson were retaliatory. We conclude there is.

Gutierrez testified that up to the time Jackson was promoted in May 2001, he had a good working relationship with her. He further testified that their working relationship continued well until September 2001. It was not until just after Jackson informed him that she would be filing a discrimination complaint against him that he began drafting the corrective memorandum that purported to document various incidents of misbehavior by Jackson, including incidents dating back to March and April. As Jackson points out, before this point there is no record . . . to indicate that there were any issues with her work performance.

The Department contends any inference of retaliatory motive here is considerably weakened by the fact the counseling memorandum relates to events that predate [Jackson]s internal complaint, but we disagree. The fact that Gutierrez was purporting to document events that occurred before he learned Jackson would be filing a discrimination complaint is of little significance. What is significant is that he did not purport to document those events until after he was aware of Jacksons protected activity.

Gutierrez admitted that during the two years between her hiring in November 1999 and her passing of probation in her new position in October 2001, Jackson was on probation for a total of 18 months and according to policy was entitled to receive six different probation evaluations, but he provided her with only one. The Department suggests this fact is immaterial because Jackson suffered no harm as a result of not receiving probations performance evaluations. As Jackson points out, however, one inference that could be drawn from the absence of the evaluations is that her work [wa]s very good and there [wa]s no need to provide her with any documented evaluations. More importantly, a reasonable trier of fact could find it significant that there were no probation evaluations documenting any misbehavior by Jackson in March or April 2001, but then suddenly in September 2001, after learning that Jackson would be filing a discrimination complaint against him, Gutierrez drafted a corrective memorandum that purported to document such behavior, as well as purporting to document more recent misbehavior. Thereafter, in November 2001, Gutierrez began creating Notes to file purporting to document additional incidents of misbehavior by Jackson. Apparently, these notes later provided much of the basis for the pay reduction and termination of Jacksons employment.

Although Jackson did not specifically dispute each and every assertion of misconduct by Gutierrez (some of them she did not recall), the general thrust of her testimony was that for the most part Gutierrezs description of events was either incorrect or exaggerated -- that is, the events did occur, but not to the extent . . . reported. Since we must view the evidence in the light most favorable to Jackson, we are led to conclude that a reasonable trier of fact could infer from the evidence that as soon as he learned Jackson intended to file a discrimination complaint against him, Gutierrez began a campaign to trump up or exaggerate instances of misconduct by Jackson, which he ultimately used to recommend the pay reduction and then the termination of her employment. The fact that between the corrective memorandum and the pay reduction Gutierrez recommended passing Jackson on probation does not, by itself, render this inference unreasonable. Indeed, the trier of fact might conclude Gutierrez did this only to make it look like he was treating Jackson fairly, while all the time he actually intended to pursue a course that would ultimately lead to her firing because she had filed a discrimination complaint against him.

For the foregoing reasons, we conclude the trial court erred in summarily adjudicating Jacksons cause of action for retaliation in favor of the Department.

V

Failure To Prevent Discrimination

It is unlawful under the FEHA for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. ( 12940, subd. (k).) However, a private right of action based on this provision exists only when discrimination or harassment actually occurred at the plaintiffs workplace. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented. (Ibid.)

Here, we have already concluded the trial court did not err in summarily adjudicating Jacksons cause of action for racial discrimination against her and Jackson has forfeited any argument that the trial court erred in summarily adjudicating her cause of action for harassment against her. Thus, there will be no showing in this case that racial discrimination or harassment actually occurred at Jacksons workplace. Nonetheless, Jackson argues that [i]f this Court finds that the retaliation claim should go forward, th[e]n the issue [of] failure to take all reasonable steps to prevent the retaliation should also be allowed to go before a jury.

The Department does not dispute that this provision encompasses the failure to prevent retaliation, and we believe the term discrimination in subdivision (k) of section 12940 can be understood to mean not only discrimination on one of the bases prohibited by subdivision (a) of the statute, but also discrimination based on protected activity, which is prohibited by subdivision (h) of the statute. Accordingly, the question here is if a triable issue of fact exists as to whether the Department failed to take all reasonable steps necessary to prevent the retaliation against Jackson the trier of fact may find occurred. We conclude there is.

Jacksons claim under subdivision (k) of section 12940 rests on the alleged inadequacy of the Departments investigation of the discrimination complaint she filed against Gutierrez and Winkler in September 2001. (See California Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal.App.4th at p. 1024 [one of the reasonable steps required of an employer under subdivision (k) of section 12940 is a prompt investigation of the discrimination claim].) Jackson contends not only was an investigation [of her discrimination complaint] not performed in a timely manner, it was not even begun until after [she] had been terminated.

There is no support in the evidence for Jacksons assertion that the investigation into her discrimination complaint did not begin until after she was terminated. On the contrary, evidence that Jackson herself introduced -- the Departments EEO (Equal Employment Office) investigation report -- reveals that a Department EEO investigator conducted an intake interview of Jackson on September 14, the day after she filed her complaint. Thus, the evidence does not support Jacksons assertion that the Department failed to begin the investigation in a timely manner.

Viewed in the light most favorable to Jackson, however, the evidence does support the conclusion that the Department failed to complete the investigation in a reasonably timely manner. The report on the Departments EEO investigation is dated June 6, 2002, nearly nine months after Jackson filed her complaint and two months after the effective date of the termination of her employment. The report indicates that Gutierrez was not interviewed until April 4, 2002, and Winkler was not interviewed until April 5, 2002 -- nearly seven months after Jackson filed her complaint. Furthermore, the report indicates a Department EEO investigator interviewed twelve staff members . . . as potential witnesses, but the report does not indicate when those interviews were conducted. Other evidence, however -- specifically, e-mail messages between Wohlford and the EEO investigator dated May 15, 2002 -- suggests these interviews did not occur until after May 15. Indeed, the e-mails suggest the normal procedure for investigating a discrimination complaint was not followed in Jacksons case.^[5]

On this evidence, a triable issue of fact exists as to whether the Department failed to take all reasonable steps necessary to prevent the alleged retaliation against Jackson. The EEO report itself indicates that one of Jacksons allegations was that she was being targeted for retaliation . . . by Mr. Gutierrez and his manager, Mary Winkler, . . . for filing a discrimination complaint . . . on September 13, 2001. A reasonable trier of fact might determine that if the Department had not taken nine months to complete its investigation of this allegation, the pay reduction in January 2002 and termination of employment in April 2002 that Jackson asserts were retaliatory might have been prevented.

For the foregoing reasons, we conclude, except as to the allegation that Jackson was subjected to differential treatment due to her race, the trial court erred in summarily adjudicating, in favor of the Department, Jacksons cause of action for failure to investigate and remediate the alleged retaliation.

DISPOSITION

The judgment is reversed, and the trial court is directed to vacate its order granting the Departments motion for summary judgment and to enter a new and different order: granting the Departments motion for summary adjudication of Jacksons causes of action for racial discrimination and harassment (first and fourth causes of action), and that part of the third cause of action alleging that Jackson was subjected to differential treatment due to her race and denying the Departments motion for summary adjudication of Jacksons cause of action for retaliation (second cause of action) and that part of the third cause of action alleging the Department failed to investigate and remediate the alleged retaliation.

Jackson shall recover her costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

ROBIE , J.

I concur:

SCOTLAND, P.J.

BUTZ , J.

Having concurred in the majority opinion, I write separately to note that this case barely survives summary judgment on the second cause of action and part of the third cause of action in the first amended complaint. The inferences we have identified are tenuous at best, and it is unlikely that plaintiff will prevail at trial. Nevertheless, even tenuous inferences give rise to triable issues of material fact.

SCOTLAND, P.J.

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^[1] Jackson did not recall exactly when she told them about her intended filing of the complaint, asserting only that it had to be the week of September 13th.

^[2] All further statutory references are to the Government Code unless otherwise indicated.

^[3] At first glance, the separate statement of material facts appears to include 84 facts, but these are actually the same 21 facts repeated four times -- once for each cause of action in the complaint.

^[4] The brown noser comment was not made by Gutierrez, but by two other individuals. Jacksons complaint about Gutierrez, apparently, is that he was present at the meeting and said nothing about it. She admitted, however, that when she complained to Gutierrez after the meeting, he said, Youre right, they shouldnt have done it.

^[5] Wohlfords e-mail to the EEO investigator reads in part as follows: Dan - I am a little confused by your request. Normally I receive a letter from EEO indicating a complaint has been filed which includes the nature of the complaint and specific questions and/or information that is necessary for EEO to conduct an investigation. I am more than willing to provide you with a list of employees on staff but you may also need to talk to employees in the cubicles around [Jackson] that are on LOD staff. The message then lists the names of 12 employees, which appear to be the 12 potential witnesses mentioned in the report.

The EEO investigators response to Wohlfords e-mail reads as follows: Thank you very much. I know this appears to be an unusual request, and you are correct in making that determination. There is a certain urgency to my completing these very specific interviews and failure to follow proper procedures. And I thank you for the additional names provided. [] The specific nature of the complaint and specific questions/information I require are not items I can share at this time.