HAMMOND v. COUNTY OF LOS ANGELES

Filed 1/18/08

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DISPOSITION

The judgment in favor of the County and Brennan is reversed as to the first, second, fourth, and fifth causes of action, and the summary adjudication as to the third cause of action is affirmed. Costs are awarded to plaintiff.

CERTIFIED FOR PARTIAL PUBLICATION

MOSK, J.

I concur:

TURNER, P. J.

CERTIFIED FOR PUBLICATION

Hammond v. County of Los Angeles, et al.

B189262

ARMSTRONG, J.

I concur with the majority's ruling on the third cause of action. As to the other causes of action, I believe that defendants were entitled to judgment, and I thus respectfully dissent.

I have examined and re-examined this record, and cannot see a case of illegal discrimination, in any form or under any theory. There is nothing here but a case of an employee who was unhappy at work. The only conclusion which can be drawn from the facts at summary judgment is that Hammond did not like Brennan or the work Brennan assigned her to do. That does not create a violation of FEHA or give Hammond any right to recover against Brennan or the County. The majority finding to the contrary is based on mistakes about the law and the undisputed facts.

Here is but one of the factual errors: Hammond's unverified complaint put the date of Brennan's appointment as December 2001, and Hammond repeated that date in her deposition, attempting to use the speediness of Brennan's actions as proof of her improper motives. The date is wrong. Brennan started in December 2000, a fact which is amply documented in the record.

Not only that, the fact was undisputed at summary judgment. Defendants proposed as undisputed that "After . . . Brennan was assigned to head up the Staff Development Unit in approximately December 2000, she was tasked with increasing the quality and quantity of education and training of Sheriff's Medical Services personnel

. . . ." Hammond's response was "Disputed to the extent that defendant attempts to assert an excuse for Brennan's conduct." In other words, the fact was undisputed.

The majority relies on the wrong date and refers to the undisputed fact as a "discrepancy in the evidence." This is a fundamental misunderstanding of the summary judgment process. At summary judgment, there are disputed facts and undisputed facts. A "discrepancy in the evidence" is not a recognized category. What's more, an undisputed fact is an undisputed fact even if someone with a bad memory (and Hammond's memory was bad) once testified to something different.

Defendants proposed as undisputed that Brennan started in December of 2000, and Hammond proffered nothing, not even her own testimony, to the contrary. The trial court was not free to evaluate this case as though Brennan might after all have started the job in December 2001, and neither are we. "A defendant's . . . motion for summary judgment tests the existence of evidence to support the complaint's . . . allegations." (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468, emphasis added.)

The majority also writes that the date "does not matter." Of course it does. First, Hammond's theory that bias can be inferred from the speed of Brennan's actions disappears. If anything, the inference is to the contrary.

The date matters for statute of limitations, too. According to Hammond, she was "stripped" of her classes immediately after Brennan started. Given that Brennan actually started at the end of 2000, that allegedly discriminatory act took place in the beginning of 2001 -- not, as the majority would have it, in 2002. Another part of Hammond's theory of the case is that she complained to Barrantes soon after the discriminatory change in assignments took place. It was undisputed that Hammond's meeting with Barrantes was in August 2002, 16 months after Brennan took over, and that that was her first complaint about discrimination at Brennan's hands. After her meeting with Barrantes, Hammond knew that her teaching load would not be restored.

If I thought that the reduction in teaching load could be considered a FEHA violation (and I do not), I would find that both the early 2001 assignment changes and the mid-2002 meeting with Barrantes were "discrete act[s] of discrimination" which caused the limitations period to commence. (Ledbetter v. Goodyear Tire & Rubber Co., Inc. (2007) __ U.S. __ [127 S.Ct. 2162, 2165].) The majority's holding on statute of limitations essentially rests on a theory that there was a FEHA violation every time -- every day? -- Hammond was not assigned to teach a class (no matter what else she was assigned to do), essentially allowing an infinite period of limitations. I do not think Ledbetter, supra, permits such a theory.

This case is indistinguishable from Ledbetter on this point. Like the evaluations and pay adjustments in that case, the reduction in teaching assignments was a discrete event. Even if it continued to have negative effects, the statute commenced when the act occurred.

For the same reason, I do not see that the continuing violation doctrine could save this case. Application of that doctrine depends on unlawful acts during the limitations period (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812), and there were none.

Before I write further about the factual errors, I must digress (but it is no digression) to note that the majority has fundamentally erred by relying on the shifting burdens described in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. In this summary judgment case, the burdens are not those described in McDonnell Douglas, but those described in Guz v. Bechtel Nat. Inc. (2000)24 Cal.4th 317. This is true because defendants, like the employer in Guz, "did not stand mute, relying solely on the premise that [Hammond] failed to demonstrate a prima facie case of . . . discrimination. As an additional basis for [their] motion, [defendants] proceeded directly to the second step of the McDonnell Douglas formula. [They] set forth competent, admissible evidence [citations] of its reasons, unrelated to . . . bias," for their actions. (Id. at p. 357.) That is, defendants produced evidence that to the extent that Hammond's job duties were changed, they were changed for reasons having to do with staffing and workload, not age or race bias. Those reasons were "creditable on their face." (Id. at p. 353.) That means that to survive summary judgment, Hammond "was thus obliged to point to evidence raising a triable issue -- i.e., permitting an inference -- that, notwithstanding [defendants'] showing, its ostensible reasons were a mask for prohibited . . . bias." (Ibid.) This she failed to do.

Hammond's case is built around the notion that her teaching assignments were taken away and given to young, non-African American employees, leaving her with nothing to do but sit and stare at the walls, and that Brennan's discriminatory motives are established by those facts and by her discriminatory comments. The majority accepts the theories by ignoring the undisputed facts and the trial court's evidentiary rulings and by forgetting the well-established rule that "[t]he party opposing the summary judgment cannot rely on its pleadings, but must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment." (Buehlerv.Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.)

Let us examine the real facts, and lack thereof, at summary judgment.

Brennan doubled the number of nurse instructors from two to four -- in order to improve training, which was her job. It is not surprising that when the staff doubled, Hammond's classroom assignments were reduced by about 50 percent. Here, the majority seems to be laboring under a misapprehension of the parties' positions, writing that defendants' contention is that Hammond's teaching assignments were not reduced. That was not defendants' position. Instead, they proffered the undisputed fact that the changes in assignments were not based on illegal discrimination.

It was undisputed that Brennan assigned "approximately an equal amount of work" to each of the nursing instructors, and that "[A]fter beefing up the staffing for the SDU in 2001, Brennan divided the teaching assignments equitably among the four instructors based on their interests, background and on her best judgment." Hammond "disputed" this fact only by asserting that she taught fewer classes after Brennan arrived, thus confusing change with discrimination.

The majority writes something odd about this undisputed fact, that with it, defendants "suggest that [they] did not take away the majority of plaintiff's teaching assignments and give them to the three instructors who were not African-American -- a denial rather than an explanation of plaintiff's claim of a reduction in assignments." On review after summary judgment, we liberally construe the evidence in favor of the party opposing summary judgment. Like the "discrepancy," the "suggestion" is not a category we consider at summary judgment. We "liberally construe the evidence in support of the party opposing summary judgment" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028), but we do not ignore undisputed facts.

On this record, the reasons for the assignments are not a "suggestion" or a "denial" or a "discrepancy," but an undisputed fact, on which we must base our ruling.

It is also a creditable showing under Guz, shifting the burden to Hammond. She presented no evidence about the teaching load of the other nurse instructors and thus no evidence in support of her main theory, that the reduction in teaching assignment was particular to her, because of her age and/or race. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)

The only facts at summary judgment on the ages and races of the other instructors were that the two new nurse instructors Brennan hired were 52 and 42 years old. Of the 13 volunteers Brennan selected in the spring of 2001 to train the staff on the new defibrillators, five were African-American and the rest were White, Asian, or Hispanic. None were in their twenties, as Hammond complained at her deposition. Instead, three were in their thirties, and the rest ranged in age from 42 to 78.

Yes, Hammond testified that the new hires were young and not-African American, but in light of the facts, that is not enough. An employer is "'entitled to judgment as a matter of law if . . . the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.' (Reeves [(2000)] 530 U.S. 133, 148-149 [120 S.Ct. 2097, 2109].)" (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at pp. 361, 362.)

It is true that Hammond was the only African-American nurse instructor. The majority (which ignores the actual ages and races of the defibrillator volunteers) writes that from that fact, a finder of fact could "infer" a racial motivation for the reduction of Hammond's teaching assignments. How? There is no evidence that any African-American applied for the job when Brennan augmented the staff, or that African-Americans were discouraged from applying for the job, or anything else which would justify an inference of racism. The inference is not permissible.

The evidence on Hammond's assignments? Even she conceded that in 2002/2003, the period in which discrimination is alleged to have taken place, she was assigned to teach 20 hours of a 40-hour orientation class for new nurses. She was also assigned to research, develop and write a course for suicide prevention in the custody setting, to provide a spinal cord injuries-assessment class (estimated to take three months of dedicated work), and to prepare a class for assessment and care of patients with limited mobility. Because of her background in obstetrics, she was assigned to prepare and to present a class on the assessment of fetal heart tones, which involved research and preparation of a lesson plan. She was also responsible for researching and developing a lesson plan for three eight-hour classes for Certified Nursing Attendants, something that would require five to eight hours of work for each hour to be taught, and for researching and developing an updated lesson plan for teaching the Lyteport machine, which delivers oxygen, oxygen under pressure, and can suction bodily fluids while providing cardiopulmonary resuscitation to critically ill patients. And the list goes on. If Hammond spent time doing nothing, staring at the walls, she was neglecting her work, and her performance evaluations would have reflected that fact.

The evidence of Brennan's allegedly discriminatory comments is no better. On the question of age discrimination, Hammond testified that Brennan said that she wanted "the new people" who "had no experience," in the classroom "to get some experience," but that is not age discrimination, it is management. Certainly, Hammond presented no evidence of pretext, that is, for instance, that the new people did not need experience.

Hammond testified that Brennan "would -- if they would say something about anybody black she would say, 'They don't know anything, they dumb.' She said it about Dr. Hart, she said it about Dr. Clark, she said it about Stella Jackson which was nurse manager. They didn't have any sense, they were dumb." That is testimony that in some unspecified context, in response to unspecified comments, Brennan indicated that she had a low opinion of the intelligence of three specific African-American employees. The comments are not even placed in time, so that we could determine when they were made, vis a vis Brennan's actions, and the statute of limitations.

The majority writes that this is an "example" of Brennan's derogatory remarks, and from such remarks, we can "infer" a racial motivation for the reduction in Hammond's teaching assignments. This is no "example," it is the only potential evidence of racial bias which Hammond could produce. (The "Ebonics" comment cannot be considered for two reasons. It was not alleged as a discriminatory act in the complaint. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 99, fn. 4. Further, the only evidence of the comment is found in Reta's declaration, and defendants' objection to that declaration was sustained.) Three derogatory remarks about three specific people other than the plaintiff, with no context whatsoever, is not ". . . evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz v. Bechtel Nat. Inc., supra, 24 Cal.4th at p. 361, original italics.)

What of the Department's June 2004 response to Hammond's complaint about Brennan? Hammond relied on this letter in her brief on appeal and the majority relies on it in the opinion. What Hammond did not do in her brief is acknowledge that the trial court excluded the letter, or contend that the trial court erred in so doing. "On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)" (Guz, supra, 24 Cal.4th at p. 334, emphasis added; Yanowitz, supra, 36 Cal.4th at p. 1037.) The letter is not "part of the evidentiary record on appeal," and can play no part in our analysis.

At any rate, the document amounts to nothing. Hammond's complaint was that Brennan harassed her because Brennan was prejudiced against African-Americans, and as payback for Hammond's bad relationship with another employee, whom Brennan liked. Hammond complained that Brennan had said that specified Black employees were "dumb," and that she "openly curses in front of the staff." On these allegations, the Department concluded that the complaint was founded and that Brennan "acted inappropriately," toward Hammond and treated Hammond "differently than other employees."

But on what grounds were the allegations founded? Did Brennan act inappropriately when she "openly cursed," or because she denigrated an employee in front of another employee? In what manner, and on what basis, was Hammond "treated differently?" The document does not say that Brennan engaged in illegal discrimination, or that there was anything illegal or improper about the way in which she assigned work.

Defendants set forth competent, admissible, creditable evidence of reasons for their actions that were unrelated to bias, so that it was up to Hammond to point at evidence raising a triable issue of pretext. (Guz, supra, 24 Cal.4th at p. 357.) The burden was on her to explain what the report meant, and, typically, she did not.

There are also many problems with the majority's interpretation of the law. I have already written about the statute of limitations, and the problems with the majority's allocations of the burdens of proof. I feel constrained to note two more, the majority's understanding of the adverse employment action requirement and of a hostile environment cause of action.

An adverse employment action is one which "materially affect[s] the terms, conditions, or privileges of employment." (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1054-1055.) The majority's holding on this point is unusual. It is that a reduction in a teacher's teaching assignments impairs the teacher's ability to perform the job "for which she was hired," and relegates her to "some undefined, but lesser, status" and from all of that, a trier of fact could "infer" that it was reasonably likely that Hammond's job performance was impaired by the actions against her. This is all totally unsupported, without foundation in law or in the record.

Hammond's positive evaluations -- from Brennan! -- negate the majority's speculation of impaired job performance. Brennan wrote that Hammond had "very good work habits," and a "keen interest in her work," and setting "a high standard of performance for herself" and having "a personal drive that has motivated her to pursue her educational goals and to enhance her professional growth." Besides, an employee cannot create an adverse employment action by doing her work poorly, even if she does not like her assignment, and Yanowitz,supra, does not hold to the contrary.

Next, nothing in the record supports the notion that the nurse instructors were hired exclusively as classroom teachers and that the director of the unit could not change their classroom hours as circumstances dictated, or properly assign them to develop as well as teach classes. As Hammond succinctly put it when she explained why she did not complain about the reduction in her teaching load, Brennan "is the leader and she was in charge and the one in command . . . ."

Nor is there anything in the record that supports the notion that the change in Hammond's duties gave her a "lesser status." She retained the title "nurse instructor." Her office remained in the unit. She received serious and responsible assignments. For instance, she was to represent the SDU in Infection Control meetings and to coordinate infection control and HIV classes, required annually of all Medical Services staff. In August 27, 2002, she was given an assignment to develop a formal lesson plan for the treatment and care of paraplegics and quadriplegics, an assignment which would take months of work. How is any of that "lesser?" Hammond produced no facts to support such a notion, yet the majority says so.

Hammond was to spend less time teaching and more time creating classes through which jail personnel could be properly trained. Some employees might like such a change. Hammond apparently did not. She nowhere says why, but that does not matter. "A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient. Requiring an employee to prove a substantial adverse job effect 'guards against both "judicial micromanagement of business practices," [citation] and frivolous suits over insignificant slights.' (Russell v. Principi (D.C. Cir. 2001) 257 F.3d 815, 818.) Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

Thus, in Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, a firefighter did not show adverse employment action when his special duty assignments did not bar him from promotions or overtime pay. The court drew the important distinction, which the majority does not draw here, writing that the reason the employee was dissatisfied was because he "preferred the work, schedule, and camaraderie of platoon duty to that of special duty, not that he suffered any adverse employment consequences from being limited to special duty." (Id. at p. 358.) That is this case.

The majority also finds adverse action in the disputed facts about classroom monitoring. Hammond testified that when she taught (but, of course, she also testified that she was not allowed to teach) her classes were monitored, and that the performance of other teachers was not. Defendants proffered evidence that all teachers were monitored equally, and also proffered evidence that Hammond's student evaluations were bad. "Needs to be more prepared," "Very hard to understand," and so on were typical comments. There is perhaps a triable issue of fact on whether Hammond was monitored more than other employees, but what if she was? Supervision, by a supervisor, is not an adverse employment action -- especially when the monitored employee receives good performance reviews from that supervisor.

What of the other, alleged adverse actions, which the majority relegates to a footnote? One of those other actions alleged by Hammond is that Brennan coerced Reta into filing a false complaint against her. We originally based our opinion on that "fact," but we vacated our opinion when defendants correctly pointed out that there was no evidence that the complaint was false. Instead, the evidence was that another employee made a complaint about Hammond, that Hammond believed that Reta had made the complaint, and told him "you're not going to get away with it. Cristobel's [another nurse instructor] not going to get away with it, and surely Ms. Brennan's not going to get away with it." Reta told Brennan what had happened, and Brennan told Reta to file a complaint. Beyond a doubt, that was the correct thing for her to do.

For an employee to prevail on summary judgment in an employment case such as this one, "there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory." (Guz, supra, 24 Cal.4th at p. 361, italics omitted.) Under that standard, Hammond should not prevail.

I need say very little about the hostile environment harassment cause of action. Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283-284 makes it very clear that three slighting remarks, about someone other than the plaintiff, are not severe enough or sufficiently pervasive to alter the conditions of employment, and do not make a cause of action for hostile environment discrimination.

Laws which protect employees from race and age based discrimination are vital parts of our jurisprudence. Public confidence in those laws, and plaintiffs with real claims, are only damaged when an unhappy employee who has suffered no discrimination is allowed to proceed on untenable, because-I-say-so claims such as those raised here. That is the basis of my dissent.

CERTIFIED FOR PUBLICATION

ARMSTRONG, J.

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* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of DISCUSSION, parts E2 and F.