Sawyers v. Regents

Filed 8/30/07 Sawyers v. Regents CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Michael Sawyers (Sawyers) appeals from a summary judgment entered against him on his complaint for racial discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code,  12900 et seq.) He contends that the trial court erred with respect to his retaliation claim because: (1) the court sustained respondents objections to certain evidence; and (2) there is at least a triable issue of fact material to his claim.We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

In his amended complaint, Sawyers alleged two FEHA claims against respondent, the Regents of the University of California: one asserting racial discrimination, the other asserting retaliation against him for complaining about racial discrimination.

Respondent filed a motion for summary judgment or, in the alternative, summary adjudication. Sawyers filed an opposition to the motion. Respondent filed a reply that included objections to some of Sawyers evidence, which the trial court sustained.

A. Facts in the Summary Judgment Proceeding

Except where otherwise indicated, the following facts are undisputed for purposes of respondents summary judgment motion, as set forth in the parties respective separate statements of undisputed material facts and responses thereto. We also include evidence Sawyers offered in an attempt to establish a triable issue of material fact, where relevant to this appeal.

1. Sawyers July 1996 Grievance

Sawyers is an African-American male, whose employment with the University of California at Berkeley (University or Cal) started in 1981. Initially Director of Intramural Sports, Sawyers was promoted to Associate Director of Recreational Sports and later to Director of Recreational Sports.

On July 29, 1996, a reorganization of the Universitys Department of Intercollegiate Athletics and Recreational Sports (Athletic Department) resulted in Sawyers being reassigned from Director of Recreational Sports to Assistant Athletic Director.

The next day, Sawyers filed a grievance with respondent, addressed to Vice Chancellor Horace Mitchell, claiming racial discrimination in the Athletic Department. Sawyers contended that he was singled out for reassignment and complained that personnel actions taken by the Regents adversely affected him as well as other African-American, Latino and Asian-American employees. His accusations were levied particularly against the Athletic Director at the time, John Kasser (Kasser), and Sawyers supervisor, Bill Manning (Manning). Among other allegations, he asserted that Manning made several comments evincing their strained relationship, such as Life will be uncomfortable for you from now on, it is time for you to leave, and [you are] spending too much time dealing with the Black community.

The University investigated Sawyers grievance. On November 17, 1997, Nina Robinson (Robinson), Manager of Policy, Planning and Analysis, reported on the investigation. She concluded that the reorganization resulted in Sawyers having a considerably narrower position than before, because he and his supervisor, Manning, did not get along. Robinson opined that Sawyers was placed in a very difficult position and the transfer presented a significant hardship to him, even if it did not violate University policy. She also noted that Manning and another administrator (Mike Weinberger), who designed the reorganization, expressed distrust and antipathy towards Sawyers and initially proposed a plan that would have isolated Sawyers and made him quite vulnerable to layoff.

On July 24, 1998, Robert Berdahl, Chancellor of the University, upheld the reorganization but found merit in some of Sawyers concerns. Chancellor Berdahl promoted Sawyers to Managers and Senior Professionals (MSP) II as of January 1, 1996.

2. July 2001: Gladstone Becomes Cal Athletic Director and Selects EAADs

About three years later in July 2001, Steven Gladstone, the mens rowing coach, was appointed Athletic Director (AD).

On July 2, 2001, Sawyers applied for the position of Executive Associate Athletic Director (EAAD). In August 2001, he was informed by a human resources employee that the interviews would take place in September and that he should take his scheduled vacation. He later learned that the position had been filled in his absence. Respondent claims this was due to a miscommunication.

Gladstone hired three white males and one white female as EAADs instead of Sawyers; Gladstone also retained an African-American male as an EAAD. One of the new EAADs was Dan Coonan (Coonan), an attorney and executive with the Pac-10 Conference, who was selected as EAAD of Compliance and Revenue Sports. From this point on, Sawyers reported to Coonan, and Coonan reported to Gladstone.^[1]

3. August - September 2001: Students Complain to Gladstone

In August or September of 2001, a group of student athletes met with Gladstone and complained that Sawyers was not doing his job, did not seem to care about them, showed little support for them at away track meets, and made female athletes uncomfortable with his close physical presence. Gladstone did not talk to Sawyers about these complaints.

4. October 2001: Reassignment of Cals Men Basketball Tournaments

Around October 2001, Coonan took away Sawyers responsibilities for the Golden Bear Classic and other Cal mens basketball tournament events to another AAD. Coonan explained to Sawyers that Cals head basketball coach, Ben Braun, had expressed dissatisfaction in how the tournament was being managed.

5. November 2001: Replaced as Community Relations Representative

In November 2001, Coonan replaced Sawyers as the community relations representative in the Athletic Department.

6. April - July 2002: Search for Head Track Coach

A search for a new head coach of the Cal track team began in April 2002. Sawyers was a member of the search team. According to Sawyers, he was in charge of the selection process, but AD Gladstone took over the process around July 16, 2002. It is undisputed, however, that Gladstone, as AD, had the discretion to hire whomever he wanted for the position.

Gladstone eventually hired African-American Chris Huffins, a former Cal athlete and Olympian, as the new head track coach. Sawyers disagreed with the decision because Huffins did not have a Bachelor of Arts degree, which was a requirement when the position was first posted.

7. September 2002: Sawyers Letter Complaining of Discrimination

On September 3, 2002, Sawyers wrote a letter to Chancellor Berdahl regarding Racial discriminatory practices in the workplace; Discriminatory hiring practices and salary determinations; Intent to file legal suit against the University of California, Berkeley and its Intercollegiate Athletic and Recreational Sports Department. In the letter, Sawyers complained of continuing discriminatory practices within the Athletic Department, of which he was a target since the appointment of the Athletic Director and his newly hired staff. In particular, he claimed he was not given the opportunity to compete for the EAAD jobs. He also complained generally about race discrimination with respect to the racial make-up of new hires, unfair opportunities for competition in listed jobs, jobs filled without appropriate personnel listings, a questionable selection process for new hires, an ongoing attempt to eliminate African-American employees currently within the department, an unwillingness to support salary upgrades for exemplary African-American employees, inappropriately elevated salaries for some employees, and reductions in responsibilities of competent staff to benefit others.

The University conducted an investigation into Sawyers September 2002 discrimination complaint. The investigation team included Denise Oldham (Oldham), an EEO Manager and Compliance Officer from Staff Equity and Diversity Services, along with Michael Adams, Mark Paschal, and Mercedes deSouza from the Office of Affirmative Action of the University of California, San Francisco. John Cummins (Cummins), Associate Chancellor and Chief of Staff, instructed the team to investigate all of Sawyers allegations of racial discrimination in the September 2002 letter. The team then met with AD Gladstone to let him know that they would be conducting an investigation and provided instructions regarding cooperation and no retaliation. The team conducted interviews, reviewed documents and data, and ultimately prepared a report.

8. September 2002: Sawyers Goes on Medical Leave

Meanwhile, a few days after submitting his discrimination complaint, Sawyers took a medical leave beginning September 9, 2002. He has not worked at the University since. At no time was Sawyers salary docked; nor was he ever suspended or demoted.

9. September 2002: Student Letters of Complaint Against Sawyers

Also in September 2002, after Sawyers went on leave and the University was investigating his allegations of discrimination, a group of student track and field athletesseven females and one malesent AD Gladstone letters complaining about Sawyers management of the track and field program and possible sexual harassment. Some of the letters were undated; the rest were dated from September 19 to September 23, 2002. The letters expressed concerns similar to those voiced at the August 2001 meeting with AD Gladstone, including that Sawyers breath smelled of alcohol, he did not adequately support the track team at away meets, and he made female student athletes uncomfortable with his close physical presence.

While the fact and content of the letters is not disputed, it is hotly disputed why the students submitted the letters and the extent to which Athletic Department personnel encouraged or assisted them. Respondent contends, based on the evidence it submitted, that the students wrote the letters because they remained frustrated with Sawyers performance and realized he was no longer going to work. Because the allegations were essentially the same as those in August 2001, the inference is that the situation had not improved. In addition, respondents submitted evidence that the letters were the ideas of the students themselves, and not the product of University assistance. For example, University investigators testified that, in the course of investigating the students allegations, they determined that the letters were coordinated and encouraged by students, not by any coach or administrator in the Athletic Department. Gladstone asserted in a declaration that, to the best of his knowledge, no Cal coach or administrator instructed or assisted the students. According to investigator Oldham, the students wrote the letters while Sawyers was on leave because they did not want him to retaliate against them.

Sawyers, on the other hand, contends that the students wrote the letters in an attempt to ensure that Sawyers would not benefit from his 2002 discrimination complaint, as he had from his 1996 grievance, and that Athletic Department personnel encouraged and aided them. He submitted evidence that confidential information about the 1996 grievance was somehow disclosed to the students, a student found out that Sawyers had lodged a complaint, an unnamed administrator told a student that it would be a good time to complain about Sawyers, students decided to strike while [the] iron was hot, a student said a coach provided some assistance in writing the letters, an administrator encouraged the students to put their concerns in writing, and a student said they wrote the letters because Sawyers had been successful in his 1996 grievance. Much of this evidence was the subject of multiple evidentiary objections by respondent, which the trial court sustained.

10. September 2002: Investigation of Student Letters and January 2003 Report

Because some of the students letters contained gender-related issues, the matter was investigated by the Universitys Title IX Officer, Nancy Chu (Chu), with Oldhams assistance. Chu and Oldham conducted interviews with Sawyers, student athletes, and other coaches.

The Title IX investigation concluded that Sawyers had not violated the Universitys sexual harassment policy. By letter dated January 27, 2003, Chu informed Sawyers that the evidence is insufficient to support a finding of a violation of the campus policy on sexual harassment. A report of the investigation, dated February 4, 2003, explained: Even though they [the students] described his behavior as unprofessional and as behavior that made them uncomfortable, for example, standing too close to them when speaking, and rubbing their shoulders or arms, the evidence does not support a finding that the conduct was sufficiently severe and pervasive to limit or interfere with their ability to participate in or benefit from their athletic programs. The report concluded: There is no evidence that the complainants were subjected to sexual harassment, differential treatment on the basis of their gender, or that the Assistant AD [Sawyers] harasses or harms others.

At the end of the report, Chu and Oldham remarked: The Title IX [Chu] and IDCR [Oldham] Officers note the question regarding whether ancillary factors may have played some role in prompting the written complaints brought forward at the same time, and by so many athletes. Because this is unrelated to Title IX, it is not specifically addressed in this report.^[2]

11. Gladstones Concerns About Sawyers Return to the Department

While Sawyers was on leave, Gladstone told Vice Chancellor Mitchell that he had very serious reservations about Sawyers returning to the Athletic Department and that it would not be a great idea for the department. Gladstone allegedly also told other staff members that Sawyers was a cancer and it would be difficult if he returned.

Gladstones concern, he testified, was due to the issues raised by students in their letters, along with Sawyers poor attendance, an alumnus who believed the alumni were not getting support and communication, and concerns regarding his working relationship with coaches and his supervisor, Coonan.^[3] Gladstones cited reasons did not include Sawyers complaints in 1996 and 2002 about racial discrimination.

12. April 2003: Universitys Response to Sawyers September 2002 Complaint

By letter dated April 2, 2003, Associate Chancellor Cummins wrote to Sawyers in response to his September 2002 discrimination complaint. Cummins advised: The investigation team did not find sufficient evidence to support findings of illegal discrimination based on the specific allegations you presented in your letter. However, the investigation, including interviews with you, revealed issues in the area of workplace climate, personnel management, and retaliatory issues that need to be addressed with urgent attention.^[4] In regard to Sawyers future employment, Cummins stated: Vice Chancellor Mitchell is prepared to meet with you to discuss the final recommendation of an alternate work situation and compensation for unpaid leave.

Attached to Cummins April 2003 letter was an investigation report dated March 27, 2003, addressing each of the allegations contained in Sawyers September 2002 complaint. As to the allegation that he had suffered retaliation, the investigation probed into the fact that student letters were submitted after Sawyers filed his September 2002 discrimination complaint, and the fact that there had allegedly been an inflammatory statement by AD Gladstone that strongly suggested that he could never return to the department.

In regard to the timing of the student letters, the report concluded: There was insufficient evidence to show that management took action to deter the complainant [Sawyers] from engaging in a protected activity, through involvement in or influence of the students letter writing campaign. The investigation into the Title IX-related issues has been addressed in a separate report to Associate Chancellor John Cummins. However, we conclude that department management failed to manage confidential information about complainant [Sawyers], thus allowing it to be used in a retaliatory manner by the students. (Italics added.)

As to AD Gladstones purported inflammatory statement, the report observed that Sawyers did not want to return to the department in light of such statements, and then concluded: The facts are in dispute regarding the allegation that the inflammatory statement was made. However, in interviews, members of the executive team conveyed similar negative characterizations of the complainants return. We conclude that the environment to which he would return is unwelcoming and not conducive to his successful return to the department.

The report made several conclusions and recommendations, including the following: With regard to the status of the complainant [Sawyers], we recommend that he be given the option of returning to an equivalent position in another department on campus at the end of his voluntary medical leave. (Italics added.)

13. June 2003: Mitchells Letter to Sawyers

As Cummins suggested in his letter, Sawyers met with Vice Chancellor Mitchell in April 2003 regarding his employment opportunities. Mitchell memorialized their conversation by letter dated June 11, 2003. In this letter, Mitchell noted Sawyers lack of interest in returning to the Athletic Department under current administration, as well as Mitchells offer of a permanent assignment (to be determined) outside the department, which Sawyers also declined.

Mitchell stated that he was transferring Sawyers to report to Associate Vice Chancellor Ron Coley (Coley), so Sawyers could assist Coley in de-coupling Recreational Sports from Intercollegiate Athletics. Mitchells letter states: This assignment should take several months. At the same time, the management team in Intercollegiate Athletics will be engaged in organizational development training activities that are designed to improve the conditions that were identified in [your] report. When your assignment with Associate Vice Chancellor Coley is completed, you can return to a much-improved organizational climate in Intercollegiate Athletics. (Italics added.)

In short, Sawyers declined to return to the Athletic Department as it was, refused to return to the prospect of an improved Athletic Department after a temporary assignment with Coley, and also rejected permanent equivalent employment in another department. According to Mitchell, neither the option of returning to the department after the assignment with Coley, nor the alternative of employment in another department, would have reduced Sawyers compensation, benefits, or job classification.

14. July 2003: Sawyers Complaint to DFEH

Sawyers filed a complaint with the California Department of Fair Employment and Housing (DFEH) on July 7, 2003. Healleged that he had been retaliated against by AD Gladstone and EAAD Coonan for complaining about discrimination based on his race. The DFEH issued a right to sue letter on July 7, 2003.

B. Trial Court Ruling

After a hearing, the court granted respondent summary judgment and sustained respondents objections to Sawyers evidence.

As to Sawyers cause of action for retaliation,^[5]the court explained that Sawyers 1996 racial discrimination grievance was far too remote in time from the alleged adverse employment actions in August 2001 and thereafter to suggest any causal link indicative of retaliation. Even if Sawyers could produce admissible evidence that students sexual harassment complaints against him in 2002 were in retaliation for his 1996 grievance, the court ruled, an employers release of confidential information to non-decision makers, to be used by those non-decision makers for retaliatory purposes, could not support a FEHA retaliation claim. Furthermore, the court concluded that the students sexual harassment complaints did not lead to any adverse employment action.

As to Sawyers 2002 discrimination complaint, the court observed that any employment actions occurring before the complaint could not have been caused by it. The only adverse employment actions allegedly occurring thereafter were the students September 2002 letters and the 2003 offer to transfer Sawyer to a new position outside the Athletic Department. As for the students letters, the court found no competent evidence that administrators encouraged the students to lodge complaints in retaliation for Sawyers protected activity; at most, the evidence suggested that administrators negligently allowed confidential information to be used by students, which would not support a retaliation claim, and the students complaints did not lead to an adverse employment action. As for the offer to transfer Sawyers to a new position outside the Athletic Department, the court ruled, the undisputed evidence demonstrated there was no adverse employment action.

Judgment was entered, and this appeal followed.

II. DISCUSSION

Sawyers contends the court erred in granting summary judgment on Sawyers claims of retaliation and in sustaining objections to certain of its evidence.

A. Summary Judgment Ruling as to Retaliation Claim

Government Code section 12940, subdivision (h) forbids retaliation against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. To prevail on a claim for retaliation, the plaintiff must prove: he engaged in the protected activity of complaining about discrimination; he was thereafter subjected to an adverse employment action by his employer; and there was a causal connection between the two. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

The plaintiff bears the initial burden of establishing a prima facie case as to each of these three elements. (Akers v. County of San Diego(2002) 95 Cal.App.4th 1441, 1453 (Akers).) The burden then shifts to the employer to show that it took the action for a legitimate nonretaliatory reason. (Ibid.) Upon this showing, the burden shifts back to the employee to demonstrate that the employers purported legitimate reason was a pretext for intentional retaliation. (Ibid.)

In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving partys evidence strictly, and the non-moving partys evidence liberally, in determining whether there is a triable issue. (See DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)

A defendant seeking summary judgment must show that at least one element of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (See Code Civ. Proc., 437c, subd. (p)(2); Thomas, supra, 98 Cal.App.4th at p. 72.)

With these familiar principles in mind, we turn to the parties arguments and evidence as to the elements of Sawyers retaliation claim.

In regard to the element of protected acts, a sincere complaint about discrimination may constitute a protected act even if it turns out to be meritless. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477.) It is undisputed that Sawyers complaints to the University about racial discrimination in July 1996 and September 2002 constituted protected acts.

As to the element of an adverse employment action, an employers conduct is not actionable unless it materially affect[s] the terms and conditions of employment. (Yanowitz, supra, 36 Cal.4th at p. 1036.) Actionable adverse employment decisions may include demotions, disadvantageous job transfers, refusals to promote, unwarranted negative job evaluations, or toleration of harassment by other employees. (See, e.g., Wyatt v. City of Boston (1st Cir. 1995) 35 F.3d 13, 15-16.) On the other hand, a minor or relatively trivial adverse action, although it might upset or anger an employee, is not enough for a retaliation claim. Rather, the action must be reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion. (Yanowitz, supra, at pp. 1054-1055.) In short, to constitute an adverse employment action, the employers retaliatory decision must involve a detrimental and substantial effect on the plaintiffs employment. (McRae v. Department of Corrections and Rehabilitation (2006)142 Cal.App.4th 377, 386, 393 (McRae); Akers, supra, 95 Cal.App.4th 1441, 1455, 1457.)

Sawyers asserts three adverse employment actions: (1) reducing his job responsibilities in October 2001, November 2001, and July 2002; (2) instigating students to make false claims of sexual harassment and other misconduct in September 2002; and (3) refusing to allow him to return to the Athletic Department in June 2003, based in part on the students claims of sexual harassment. Sawyers also contends that all three employment actions should be considered as a collective whole. We address each in turn and conclude that Sawyers has failed to demonstrate a triable issue of material fact and, for multiple reasons, the claimed adverse employment actions cannot form the basis of a FEHA retaliation claim as a matter of law.^[6]

1. Reduction in Job Responsibilities in October 2001, November 2001, July 2002

According to evidence presented by respondent, Coonans October 2001 reassignment of responsibility for mens basketball tournaments, Coonans November 2001 replacement of Sawyers as a community relations representative, and Gladstones July 2002 alleged assumption of authority to select the head track coach, did not constitute a demotion, change Sawyers job classification, or reduce his pay, benefits, or promotion opportunities. As such, they worked no material and adverse change in his job status, and they could not as a matter of law constitute an actionable adverse employment action.^[7]

The burden then shifted to Sawyers to present evidence sufficient to create a triable issue of material fact. Sawyers argues that he suffered a substantial diminution of his job duties in 2001 and 2002, but presents no evidence in that regard. Indeed, he offered no evidence of any demotion, any decrease in job status, pay, or advancement potential, or any other substantial and detrimental employment consequence, even in his own declaration opposing the motion. Although he testified in deposition that some University action potentially deprived him of an opportunity to make more money, there is no evidence that this ever occurred or any substantiation of the possibility it might. As to specifics, Sawyers conceded that the reduction of his job duties in connection with the Golden Bear Classic did not result in a pay cut or otherwise have any monetary effect in 2001. As a matter of law, therefore, the events of October and November 2001 and July 2002 do not constitute an adverse employment action.

Furthermore, none of the employment actions in 2001 and July 2002 could serve as the basis of a FEHA retaliation claim anyway, since there is no causal nexus between them and Sawyers protected complaints of discrimination. The employment actions in 2001 and July 2002 could not have been caused by Sawyers September 2002 complaint, because they preceded it. Nor could they have been imposed in retaliation for Sawyers 1996 grievance, based on the evidence submitted.

One way a causal nexus can be shown, on a prima facie basis, is with evidence that the employer knew of the employees protected acts and that the employers adverse actions followed closely in time. (McRae, supra, 142 Cal.App.4th at p. 388.) Here, the reduction in Sawyers job responsibilities in 2001 and July 2002 occurred five years after Sawyers filed his 1996 grievance, and involved administrators who were not in charge of the Athletic Department in 1996 or involved in the incidents of which Sawyers complained. Based on the evidence presented, there is no triable issue as to causation on this ground.

A causal nexus may also be shown by direct evidence of an employers retaliatory animus. But Sawyers presented no evidence that, at the time of the 2001 and July 2002 actions, the responsible administrators harbored such animus towards Sawyers. As to the 2001 actions, there is no showing that Cummins knew of Sawyers 1996 grievance at the time, let alone that he was motivated by it. To the contrary, the evidence was that Coonan relieved Sawyers of responsibility for mens basketball tournaments because the head basketball coach was dissatisfied with Sawyers performance; Sawyers failed to establish that this non-retaliatory reason was pretextual. (McRae, supra, 142 Cal.App.4th at pp. 388-389 [once employer demonstrates legitimate reason for the employment action, plaintiff must show evidence from which a jury could conclude the proffered justification is mere pretext]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 [to avoid summary judgment, plaintiff must present specific and substantial evidence of pretext, not mere speculation].) As to Gladstones assumption of hiring responsibilities in July 2002, Sawyers refers us to evidence that Gladstone apparently had heard about the 1996 grievance after the September 2002 complaint was filed, and argues that he may have known of it back in July 2002 as well. Nonetheless, there is no basis for inferring that Gladstones assumption of hiring responsibility or his hiring of Huffins was actually in retaliation for Sawyers 1996 grievance, which was lodged against other people five years before Gladstone even became AD.

Both on the ground that the changes to Sawyers job responsibilities do not constitute adverse employment actions, and on the ground that there was no showing of a causal nexus between them and Sawyers protected acts, the October 2001, November 2001, and July 2002 events cannot on their own support a claim for retaliation under FEHA.^[8]

2. Instigating Students Claims of Sexual Harassment in September 2002

Sawyers next argues that the University committed an adverse employment action in September 2002 by encouraging and assisting students to write letters accusing Sawyers of sexual harassment and other misconduct.

Respondent contends that the student letters were prompted by student concerns and coordinated by students without University complicity, and since the letters are not attributable to the University, they cannot constitute an adverse employment action. In support of this position, respondents submitted evidence that students expressed the same concerns in August 2001, over a year before Sawyers 2002 discrimination complaint. Respondent also produced evidence that assistance the students might have received from an administrator or coachif anywas not intended by anyone on the part of the University to retaliate against Sawyers or harm his present or future employment. For example, the March 2003 investigation report concluded: There was insufficient evidence to show that management took action to deter the complainant [Sawyers] from engaging in a protected activity, through involvement in or influence of the students letter writing campaign. In addition, Gladstone declared that, to the best of his knowledge, no Cal coach or administrator instructed or assisted the students in writing the letters.

Chu and Oldham amplified this evidence in their depositions. According to their testimony, the investigation determined that the letters were coordinated and encouraged by students, not by any coach or administrator in the Athletic Department. We note this exchange in Chus deposition: Q. When you interviewed the students, did they tell you how they wrote the letters? Did any of them tell you how they wrote the letters? . . . Did they tell you that they wrote them by themselves? Did they tell you that they wrote them with two students in a room? Did they give you any information about how they wrote the letters? [] A. I had information from the interviews that would -- that led both me and [Oldham] to think that they were asked to write letters. [] Q. Do you know who asked them to write the letters? . . . [] A. Okay. I believe it was astudent. [] Q. Do you know if anyone other than a student asked them to write the letters? [] A. Not to my knowledge. (Italics added.) Chu did not know if the students even discussed the letters with a coach.

When Oldham was queried whether she had asked a student if anyone helped write the students letter, Oldham testified: A. We did ask the students that, and I dont know who [wrote this letter], but I know some of the students did admit to organizing, and others did say that these same students called them and said now would be a good time to write this. And I vaguely recall someone saying they had started writing it awhile ago and put it down, and someone called and said lets do this all together. [] Q. Do you know if the student ever talked to any other staff person in the athletic department regarding her concerns? [] A. I dont know this particular student. I dont know because I dont know who it is. [] Q. If you knew who it was, would you be able to answer that question? [] A. I know that we asked one student whether someone in the department had encouraged them and they saidno. (Italics added.)

In addition, Chu explained why the letters were delivered within a five-day period: A. One of the students actually said that it was a coordinated effort, an effort that another student coordinated. [] Q. Some of the letters were from students who graduated. Did you ever learn how these students became involved in this letter-writing campaign? [] A. I did. [] Q. Can you tell me how they became involved? [] A. They were asked. [] Q. Do you know if they were asked by a student? [] A. I believe so. (Italics added.)

Oldham and Chu further addressed the timing of the letters, concluding it did not suggest any attempt by Athletic Department personnel to retaliate or undermine Sawyers effort to obtain relief based on his 2002 complaint. To the contrary, Oldham testified, students said they wrote the letters while Sawyers was on leave to avoid being retaliated against by Sawyers.^[9]

From the evidence presented by respondent, therefore, the letters were prepared by the students due to student concerns, without retaliatory animus or even participation on the part of the University. The burden then shifted to Sawyers to raise a triable issue of material fact.

In response, Sawyers attempted to show that AD administrators put the students up to writing the letters in order to keep Sawyers from succeeding on his 2002 complaint. In particular, Sawyers argued, administrators leaked confidential information regarding Sawyers 1996 grievance to students, the students charges were motivated by Sawyers 1996 grievance, an administrator encouraged and a coach assisted students in writing the letters, and the timing of the letters and Sawyers September 2002 discrimination was curious. Sawyerseffort to avoid summary judgment is meritless.

First, as discussed elsewhere in this opinion, much of the evidence on which Sawyers relied in this regard is inadmissible. Inadmissible evidence cannot, as a matter of law, create a triable issue of material fact. (Code Civ. Proc.,  437c, subds. (c), (d).)

Second, even if Sawyers evidence was admissibleand accepted as true for purposes of deciding the summary judgment motionit does not raise a triable issue of fact, such that a reasonable juror would conclude that the University prompted students to bring false charges against Sawyers.

For example, Sawyers contends that information regarding the 1996 grievance was leaked to students. He bases this assertion on the Universitys March 2003 report, which found no merit to Sawyers retaliation claim but concluded that department management failed to manage confidential information about complainant [Sawyers], thus allowing it to be used in a retaliatory manner by the students. (Italics added.) Oldham and Cummins testified that this passage referred to students learning of Sawyers 1996 grievance, and Cummins acknowledged that such knowledge facilitated whatever it was that the students were attempting to do. (Italics added.) But the evidence does not show how the 1996 grievance was disclosed to students, who did it, or why. As Cummins testified, it was never determined who in the Athletic Department had purportedly shared this information with any of the students. Without an indication of who disclosed the information or the manner in which it was provided, there is no basis for concluding it was disclosed for a retaliatory purpose.

Furthermore, taking his deposition testimony in contextin which he was asked to opine on a passage in a report he did not writeCummins merely agreed with opposing counsel that the students knowledge of Sawyers prior grievance ended up facilitating whatever the students had been trying to do, not that the University disclosed the information in order to facilitate retaliation against Sawyersfor his 1996 grievance. There is no evidence of animus on the part of the University, and the evidence Sawyers proffers instead suggests that any retaliatory intent was held by students.

Sawyers contention that students told investigators they wrote their letters because Sawyers filed and benefited from his 1996 complaint is also immaterial.^[10] In this regard, Oldham testified that one of the student letters referred to Sawyers having filed a prior grievance, and in an interview a student mentioned the desire not to let Sawyers get away with that again. Oldham also testified of a students anger at Sawyers: Q. In your investigation, did you ever find out why they chose that particular time to put in their letters at the time that Mr. Sawyers was off on leave? [] A. One student, as I recall, said that they wanted to make a statement. They were angry with him. They had learned that he had filed a complaint somehow. We asked how they learned that, and they just said the rumor mill. In addition, Cummins explained that the students wanted to reinforce the issue about his lack of competence so they wrote these letters in retaliation for his overcoming the grievance, I guess, or whatever their view of that grievance was. (Italics added.) This evidence might suggest that students may not have wanted Sawyers to benefit from a discrimination claim in light of his poor performance, but there is no indication of retaliatory animus on the Universitys part.

Sawyers next contends that, according to Oldhams notes of an interview with a student, there was a suggestion that students strike while the iron was hot. As we explain post, this evidence is inadmissible. It is also immaterial, as the notes read: Sawyers went out on leave, found out he was being assessed, or job being assessed and athletes got together & decided to strike while iron was hot. This does not indicate any complicity, let alone animus, on the part of the University.

Sawyers argument that an administrator told student athletes that it would be a good time to write letters about Sawyers also misses the mark. He bases the assertion on a reference in an inadmissible draft report that a student athlete also heard from an administrator now would be a good time to do this. In deposition, Oldham recalled the students statement and the students refusal to name the administrator.

Sawyers ignores, however, Oldhams testimony immediately following the portion he cites, in which she explains that there was never any confirmation that the statement was made or that any administrator had provoked students to write their letters. The testimony Sawyers omits reads as follows: Q. If you go over to the third from the last column it says, Not enough of a strong connection between management and student athletes to prove that management took retaliatory action. Was that based on you couldnt find out who said it? [] A. We couldnt find out who said it or nobody remembers saying that. They remember, for example, Karen [Moe-Humphreys] remembers telling the students if you have complaints, you should put them in writing. People remember the students coming to them saying you should talk to so and so, but that the design wasnt the students were put up to writing the letters by the administration. (Italics added.) Viewed in its proper context, therefore, Sawyers fails to demonstrate any conflict in the evidence, or any basis for inferring that the University prompted the students to levy false charges against Sawyers.

Lastly, Sawyers contends that students actually received assistance from an administrator and coaches in writing the letters. For this proposition he relies on an inadmissible note of an interview in which a student said, Had some assistance from coach in how to write letter and Karen Moe Humphreys semi-involved. There is no indication what kind of assistance was provided by the coach. In deposition, Oldham testified that the student, Missy Vanek, had said she talked with Karen Moe-Humphreys before writing the letter. There is no evidence, however, that Moe-Humphreys encouraged or assisted the student in what to write, or to submit a letter in order to harm Sawyers. To the contrary, the evidence is that she merely suggested to students who already had concerns that they record them in writing. Indeed, evidence proffered by Sawyerspurported notes of an interview with Moe-Humphreys herselfsimply indicated that KMH advised to put concerns in writing. As Oldham testified, Moe-Humphreys recalled telling students, if you have complaints, you should put them in writing. (Italics added.) Sawyers presents no evidence to the contrary.^[11]

Viewed in the aggregate, Sawyers evidence may be reasonably susceptible of the inference that a student found out about Sawyers 1996 grievance from someone in the Athletic Department, and students then got together to write letters expressing their concerns about various aspects of Sawyers behavior and job performance, so he would not profit from his 2002 complaint. It might also be inferred that University personnel suggested it would be an appropriate time to put in writing whatever concerns the students had. However, there is no evidence from which it can be inferred that the University prompted students to concoct sexual harassment allegations or any other false charge, or in any way undermine his discrimination complaint or lay the groundwork for an employment decision undeservedly adverse to Sawyers. This is simply not a reasonable inference from the evidence, but mere speculation and conjecture, particularly since it is unknown who told the students of Sawyers prior grievance. There is thus no basis for concluding the information was disclosed by a University representative in order to retaliate against Sawyers for complaining about discrimination, and the students ended up expressing concerns that they had asserted over a year before Sawyers 2002 discrimination complaint. As a matter of law, speculation and conjecture cannot and do not create a triable issue of fact.

Finally, even if Sawyers had raised a triable issue of fact as to the Universitys participation and even retaliatory animus in regard to the student letters, this factual dispute would not be material: as a matter of law based on the evidence presented, the student letters, and the alleged encouragement and assistance by administrators, did not result in any substantial and detrimental effect on Sawyers employment, such as to constitute an actionable adverse employment action.

Sawyers rightly does not contend that conducting the investigation of the sexual harassment charges was an adverse action: the Title IX officer investigated the matter pursuant to University policy because the student complaints referenced possible sexual harassment. Moreover, the Universitys investigation did not result in any adverse findings, but instead exonerated Sawyers of the harassment charges. No disciplinary action was taken against Sawyers, and he failed to present competent evidence of any change in the terms of his employment or prospects for job advancement.^[12] While Sawyers argues that the student letters were part of the reason Gladstone did not want Sawyers back in the Athletic Department, Sawyers was nonetheless offered a position in the department after a temporary assignment elsewhere or, alternatively, an equivalent job in another department. As we discuss next, extending these options to Sawyers did not constitute an adverse employment action; accordingly, the letters that allegedly prompted the University to extend those options cannot constitute an adverse employment action either.^[13]

3. Refusing Sawyers Immediate Return to the Athletic Department in June 2003

Sawyers contends that Athletic Department administrators used the existence of the sexual harassment charges, even after Sawyers had been cleared of misconduct, as the basis for concluding that he could not return to the department. Sawyers argument that this constituted an adverse employment action is meritless.

In the first place, Sawyers was not prohibited from returning to the Athletic Department. It was Sawyers who declined to return to the department under the existing administration. Vice Chancellor Mitchell then offered Sawyers the opportunity to return to the Athletic Department after a temporary assignment with Coley, which would allow time for the development of a much-improved organizational climate. In Mitchells words, this option would have provided Sawyers with the same compensation, benefits, and job classification that he had in the Athletic Department when he made his race discrimination complaint in September 2002. This opportunity Sawyers also declined.

Sawyers argument that Gladstone did not want Sawyers back in the Athletic Department misses the mark. He notes that Gladstone told Mitchell it would not be a great idea for Sawyers to return, and that it would be difficult for the department if he did, in part because of the issues raised in the student letters. In addition, Sawyers points to evidence that Gladstone once purportedly described Sawyers as a cancer. Gladstones opinion, however, is not an adverse employment action. Nor is there any evidence that it led to one. Notwithstanding what Gladstone might have felt or said to Mitchell or other executives in the Athletic Department, Mitchell nonetheless offered Sawyers a job in the Athletic Department. And although Gladstone may have contributed to a work environment that would not welcome Sawyers return, there is no evidence that Gladstone did so in retaliation for Sawyers discrimination complaint. To the contrary, the evidence suggested it was due to Sawyers attendance issues and the fact that students and alumni were dissatisfied with the way Sawyers was doing his job. Ostracism, without a retaliatory intent, does not constitute an adverse employment action and cannot form the basis of a retaliation claim under FEHA. (See Fisher v. San Pedro Peninsula Hospital (1989)214 Cal.App.3d 590, 615; Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.)

Sawyers temporary transfer to Coley to assist in the reorganization of the Athletic Department was not an adverse employment action either. As mentioned, this assignment with Coley and subsequent return to the Athletic Department would have provided Sawyers with the same compensation, benefits, and job classification he had before. Sawyers argues that transfer from a full-time, permanent position to a temporary one materially affects the terms and conditions of ones job, in that a temporary position is defined by a limited time period whereas a permanent position is not. But he presented no evidence that it had any substantial and detrimental effect on his employment. To the contrary, it provided the opportunity for him to return to the Athletic Department, on an ostensibly permanent basis, in a better environment.

Lastly, there was no adverse employment action in offering Sawyers a transfer to an equivalent position outside of the Athletic Department. This alternative position offered the same compensation, benefits and job classification that Sawyers had when he complained of discrimination in September 2002. Sawyers turned down this employment opportunity as well. Sawyers failed to present evidence to create a triable issue as to the existence of an adverse employment action. (See McRae, supra, 142 Cal.App.4th at pp. 386, 393 [lateral job transfer into comparable position not an adverse employment action unless facts show that it resulted in substantial and tangible harm]; Akers, supra, 95 Cal.App.4th at p. 1457 [transfer of employee into comparable position does not constitute adverse employment action under FEHA].)^[14]

4. Collective Actions of 2001-2003

Where a plaintiff alleges that an employer engaged in a retaliatory course of conduct, each employment decision need not constitute an adverse employment action, because all of the decisions are treated as a collective whole. (Yanowitz, supra, 36 Cal.4th at pp. 1055-1056.) Sawyers contends that the October 2001, November 2001, and July 2002 reduction in his job responsibilities should be considered as part of a course of conduct that would also include the alleged instigation of student sexual harassment complaints in September 2002 and respondents employment decisions in June 2003. This theory, however, does Sawyers no good. Whether the respondents actions are viewed individually or in the aggregate, Sawyers has provided no evidence of any substantial and detrimental employment consequence sufficient to constitute an actionable adverse employment decision.

As a matter of law, respondent was entitled to summary judgment on Sawyers retaliation claim.

B. Evidentiary Rulings

Sawyers contends that the trial court erred in sustaining respondents objections to evidence he submitted in opposition to the summary judgment motion. Most of this evidence consisted of documents attached to a declaration by Jane Brunner, one of Sawyers counsel, who asserted that the documents were true and correct copies of items produced by respondent in discovery. Another document was attached to Sawyers declaration. Objections to these documents were sustained on authentication and hearsay grounds, as well as on the ground that statements in the documents were not shown to be admissions by respondent of any facts supporting Sawyers retaliation claim. In addition, the court sustained an objection to a portion of Sawyers declaration, on the ground that it constituted an improper legal conclusion.

We first address the parties debate over the adequacy of an attorneys declaration to authenticate documents produced by the opposing party. To be admissible, documentary evidence must be authenticated, even if it was produced in discovery by the other side. (Evid. Code,  1401, subd. (a).; Tuchscher Development Enterprises, Inc. v. San Diego Port Dist. (2003) 106 Cal.App.4th 1219, 1230, 1238.) In the summary judgment context, this may be accomplished by a declaration setting forth the foundation on personal knowledge. (See Code Civ. Proc.,  437c, subd. (d).)

Here, attorney Brunner lacked personal knowledge to authenticate the exhibits as interview notes by University investigators, letters from students, a letter from Title IX Compliance Officer Nancy Chu, a draft fact-finding report, a report from the Universitys investigation of sexual harassment complaints against Sawyers, and a letter from a psychologist about Sawyers. Instead, she averred that the exhibits were true and correct copies of items produced by Defendants in discovery.

The fact that the University produced the documents during discovery did not in itself provide a foundation that they were what Sawyers (and his counsel) purported them to be. It may be inferred that they were in fact true and correct copies of responsive documents within respondents possession, custody or control (see Code Civ. Proc.,  2031.010, subd. (b)), but there is no competent showing of the author, date, recipient, or other indications that they were what Sawyers claimed them to be.

That, however, is not the end of the matter. The documents themselves may be used to establish the foundational element of authentication, as may the descriptions of the documents given by witnesses whose deposition testimony received no meritorious objection. To evaluate whether the exhibits were authenticated, therefore, as well as to assess respondents hearsay objections, we consider each of the contested exhibits individually.^[15] We apply an abuse of discretion standard of review (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640), although we would reach the same conclusions under a de novo standard.

Brunner Exhibit 4 (purportedly Oldhams October 22, 2002 notes of an interview with student Sheni Russell). These handwritten notes reference SR, but not the full name of the interviewee nor the identity of the interviewer. However, the content of the notes, coupled wi