Robinson v. San Francisco Community
College Dist.

 

 

 

 

 

 

 

 

Filed 11/15/13  Robinson v. San Francisco Community College Dist. CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

 

 

 
>

>MARK ROBINSON, III, >            Plaintiff and Appellant, >v. >SAN FRANCISCO COMMUNITY COLLEGE DISTRICT, >            Defendant and Respondent.

A136526         (San Francisco County       Super. Ct. No. CGC-10-499435)

 

            Mark
Robinson, III, a faculty member and former administrator at City College of San
Francisco (the College), appeals from a grant of summary judgment to respondent
San Francisco Community College District (the District).  Robinson sued the District and a number of
individual defendants.href="#_ftn1"
name="_ftnref1" title="">[1]  His complaint included a number of counts,
but the only one before us is his cause of action for href="http://www.mcmillanlaw.com/">unlawful retaliation under Labor Code
section 1102.5.  Robinson alleged
that after he filed a claim against the District, the College’s chancellor
retaliated against him by recommending to the College’s board of trustees that
Robinson be terminated.  Robinson further
alleged the District retaliated in other ways, such as by underpaying him for
accrued vacation leave and preventing his selection for a position as dean.

            The
District moved for summary judgment, arguing Robinson had suffered no adverse
employment action and contending he could show no causal link between the
filing of his claim against the District and the alleged retaliatory acts.  The trial court agreed with the District and
granted the motion for summary judgment.

            Robinson
contends the trial court erred in concluding he had failed to present any
evidence creating a triable issue of fact on his retaliation claim.  He argues he did indeed suffer adverse
employment actions and the District’s asserted reasons for those actions were
merely pretextual.  We conclude Robinson
has failed to demonstrate the trial court erred, and we will affirm the
judgment.

Factual and
Procedural Backgroundhref="#_ftn2"
name="_ftnref2" title="">[2]

            Robinson
is a member of the College’s tenured faculty. 
From spring 2007 until August 13, 2009, he was also the College’s vice-chancellor
of student development. 

The Internal
Auditor’s Investigation

            In
spring 2009, the District’s College Advisory Council raised concerns over
Robinson’s use of the council’s logo, and the College’s Chancellor, Donald
Griffin, asked the District’s internal auditor to investigate the matter.  In November 2009, the Office of the Internal
Auditor issued its analysis of allegations that Robinson had been using
District staff and resources to conduct business for his nonprofit
organization, On-Focus, as well as complaints of Robinson’s violent behavior
towards members of his staff.  One of the
complainants was Laurie Scolari, an associate dean at the College.  The internal auditor recommended that Griffin
and the internal auditor “reinvestigate Dr. Robinson’s business practices” and
noted that “potential disciplinary actions . . . may have to be taken
against Dr. Robinson.”  It advised the
complaining members of Robinson’s staff to speak with the College’s EEOC
officer and to file formal grievances against Robinson.  The internal auditor wrote that he had
“requested the complainants to seek police protection while traveling from
their offices to their vehicles.”  He
also recommended that “[a]n official, external, and independent investigation
should be conducted against Dr. Robinson.” 


The Scolari and Alfaro
Complaints

            In
November 2009, Scolari filed an internal complaint with the College’s Office of
Affirmative Action (OAA) alleging that Robinson had engaged in sexual
harassment and sexual orientation discrimination.  On December 7, 2009, Griffin informed
Robinson that College employees had alleged discrimination by Robinson on the
basis of gender, sexual orientation, and ethnicity, as well as “elements of
previous retaliation.”  Griffin placed
Robinson on administrative leave with pay. 


            That
same day, Associate Dean Linda Jackson notified Robinson by letter that the OAA
was looking into allegations of discrimination by Scolari and another employee,
Ted Alfaro.  Jackson enclosed a copy of
the District’s policy and procedures for handling discrimination
complaints.  At some point thereafter,
Robinson retained counsel, who wrote to Griffin complaining that Jackson had
not provided enough details about the underlying allegations against Robinson
and requesting a meeting with Griffin and the College’s legal counsel.  The College’s general counsel responded that
the College was following the procedures outlined in California Code of
Regulations, title 5, section 59300 et seq. and told counsel Jackson
would contact Robinson herself.

The Battalones
Investigation

            In
January 2010, the OAA began another investigation into allegations made by one
of Robinson’s subordinates, Jeanne Batallones, that Robinson had retaliated
against her.  The complaint was brought
by the American Federation of Teachers, Local 2121 and alleged a violation of
the union’s collective bargaining agreement with the District.  The union claimed that in deciding not to
award Battalones a position for which she had applied, Robinson violated the
candidate evaluation process required by article 12 of the collective
bargaining agreement.  It also claimed
Robinson had engaged in inappropriate conduct by asking Battalones if she was
gay, suggesting her sexuality might be an issue in the position she was seeking,
and providing her with interview questions before her interview.  The District hired an outside attorney named
Amy Oppenheimer to conduct the investigation into the Battalones matter.href="#_ftn3" name="_ftnref3" title="">[3] 

The
Reports on the Scolari and Alfaro Matters and Oppenheimer’s Follow-up Investigation

            On
March 1, 2010, Jackson notified Scolari and Alfaro that the OAA had
completed its investigation of their complaints and had concluded “there is
insufficient evidence to support a finding of probable cause to believe that
unlawful discrimination, harassment, or retaliation occurred.”  Although the investigations concluded there
was insufficient evidence that unlawful discrimination or retaliation had
occurred, the summaries of the investigations documented numerous instances of
Robinson’s inappropriate behavior.  For
example, the Alfaro investigation found that Robinson had subjected Alfaro to
“harsh treatment.”  Robinson had made
“gender based negative comments,” but his use of such comments “was not
sufficiently frequent to constitute creation of an abusive environment . . . .”  The evidence also indicated that many
administrators thought “everyone would potentially be targeted [by Robinson]
sooner or later.” 

            The
report on the Scolari investigation noted that Robinson “asked some females

 

in his
division if they were gay and may have made occasional slurs (use of the term
‘fag’) concerning sexual orientation in one-on-one conversations.”  Although the OAA found this behavior had occurred,
it nevertheless concluded the behavior was not “sufficient in frequency or
duration as to create an abusive working environment.”  The investigation also found evidence
indicating Robinson had referred to some women as “‘bitches’” and that Robinson
had threatened Scolari at a meeting for “having talked negatively about
[Robinson] to a board member[.]” 
Although Scolari felt physically threatened, “other[ ] administrators at
the meeting interpreted the threat by [Robinson] that he would ‘get’ anyone who
spoke negatively about him to board members as a threat to their jobs[.]”  According to the report, Robinson “had in
fact singled out many of his administrators, so much so that the feeling was
that everyone would get their ‘turn’ to be criticized and ridiculed at some
point by [Robinson].” 

            Although
the OAA did not find sufficient evidence to support the claims of
discrimination against Robinson, Griffin believed it had “uncovered evidence of
[Robinson’s] additional acts of dishonesty, unfitness for service, and
persistent violation of District rules.” 
On March 5, 2010, the District retained Oppenheimer, who had
conducted the Battalones investigation, to conduct a follow-up investigation
into allegations of misconduct by Robinson. 


Robinson’s Claim
Against the District

            On
March 4, 2010, Robinson’s counsel requested a tort claim form from the
College.  On March 11, 2010,
Robinson filed a claim against the District under Education Code
section 72502 and Government Code section 910.  The claim named Griffin and Scolari as the
individuals who had caused his injuries. 
Robinson accused the District of “launching a number of very public, yet
ultimately baseless investigations against him.”  He also alleged that the District had taken
“concerted action to foment, pursue and broaden these baseless investigations
. . . without providing [him] adequate notice of the alleged
conduct[.]”  Robinson also claimed that
the District had breached the confidentiality of the investigations and had
delayed their resolution for the purpose of adversely affecting his career.href="#_ftn4" name="_ftnref4" title="">[4] 

            The
District denied Robinson’s claim on April 27, 2010.  On May 4, 2010, Robinson filed an action
against the District, Scolari, and Griffin. 


Oppenheimer’s
Report and the Notice of Intended Disciplinary Action

            Oppenheimer
conducted the follow-up investigation from March through May 2010, and she
presented her report to the District on May 18.  She interviewed over 30 witnesses, including
Robinson, who was represented by counsel. 
Oppenheimer concluded Robinson had engaged in various acts of
unprofessional conduct and had been dishonest during earlier investigations
conducted in 2009 and 2010.

            On
the basis of Oppenheimer’s report, on June 10, 2010, Griffin issued a
Notice of Intended Disciplinary Action (the Notice), recommending to the board
of trustees that Robinson be dismissed from both his position as vice-chancellor
and his tenured faculty position.  The
Notice charged Robinson with dishonesty, evident unfitness for service, and
persistent violations of, or refusal to obey, the College’s regulations. 

            The
Notice acknowledged Oppenheimer’s investigation of the Battalones matter had
ultimately concluded Robinson had not committed an actionable violation of article 12
of the collective bargaining agreement. 
Nevertheless, the Notice cited Oppenheimer’s finding that Robinson had
“engaged in multiple inappropriate and questionable acts” during the hiring
process.  Robinson had claimed
unawareness of article 12, failed to comply with the contractual mandate
that article 12 be applied, and did not even consider the article 12
evaluation process.  He had also met with
Battalones in advance of the final interview to help her “prepare” by reading
her what she understood to be the interview questions prior to the interview,
and prior to her final interview, he had asked her whether she was gay and said
something about other employees being gay.

            The
Notice also recognized that Jackson’s investigations of three complaints made
against Robinson had concluded that no actionable discrimination or retaliation
had occurred.  Like the first Oppenheimer
investigation, however, Jackson’s investigation had “uncovered evidence of
additional acts of dishonesty, unfitness for service, and persistent violation
of District rules” by Robinson.  The
Notice cited numerous instances of Robinson’s inappropriate behavior, and it
charged he had provided dishonest answers to the investigator.href="#_ftn5" name="_ftnref5" title="">[5]  Robinson denied events confirmed by a half
dozen witnesses and provided answers inconsistent with documentary evidence,
only to change those answers when confronted with proof of their falsity.  Moreover, Robinson “concocted clearly false
explanations to challenge the truthfulness of evidence contradicting his
testimony.”

The Skelly Review

            Robinson’s
counsel responded to the Notice on June 21, 2010, accusing Griffin of
retaliating against Robinson for filing his lawsuit on May 4.  He also demanded that the District afford
Robinson a hearing.  The District then
designated former Chancellor Del Anderson to conduct a hearing before
imposition of any discipline on Robinson.href="#_ftn6" name="_ftnref6" title="">>[6]  The District and Robinson’s counsel both made
written submissions.  Robinson was
offered the opportunity to respond orally, but he declined.

            On
June 30, 2010, counsel for the District submitted a letter to Anderson
that addressed certain procedural issues raised by Robinson’s counsel.  The District’s counsel explained that under
the Education Code, Robinson had no property interest in his >administrative position as vice-chancellor,
because he served at the pleasure of the District’s governing board.  On the other hand, since Robinson was also a
tenured faculty member, he was entitled to procedural protections under various
provisions of the Education Code. 
Counsel explained the required procedures and noted the District was
also providing the predismissal safeguards mandated by Skelly.  He also stated that
“the District is committed to providing such further appellate process as the
law may require in the event of a final decision by the Board of Trustees to
terminate Dr. Robinson.”

            In
a July 15, 2010 letter addressed to Griffin and sent to Robinson’s
counsel, Anderson provided her review and recommendations on the proposed
discipline.  Anderson noted her review
was based solely on the Notice, letters from Robinson’s counsel dated
June 21 and July 8, and Sloan’s June 30 letter.  According to Anderson, Robinson “was
presented an opportunity to meet and present his side of the case to The
Reviewer in-person.  [Robinson] did not respond
to The District’s deadline nor request an extension; and was presumed by The
Reviewer to have declined the in-person meeting.”href="#_ftn7" name="_ftnref7" title="">>[7] 

            Anderson’s
Skelly review concluded there were
reasonable grounds to believe Robinson had been dishonest with investigators,
but there did not appear to be reasonable grounds to believe he was unfit for
service.  She also concluded Robinson had
violated District policies, but opined that the misconduct did not
“constitute[] a ‘persistent’ violation.” 
She concluded there were reasonable grounds to uphold the District’s
recommendation to terminate Robinson from his administrative position, but
found there was insufficient justification for terminating Robinson from his
faculty position.  Anderson therefore
recommended the Notice be modified such that the proposed dismissal would apply
only to Robinson’s administrative position.

Robinson’s
Resignation as Vice-Chancellor and Return to Faculty

            On
August 12, 2010, less than one month after Anderson’s Skelly review was completed, Robinson resigned from his position as
vice-chancellor.  He did not resign from
the faculty, however, and stated he wished to return to his tenured position
“at a mutually acceptable time.”  Clara
Starr, the College’s director of human resources, accepted Robinson’s
resignation, noting he had not exercised his right to challenge administratively
the recommendation that he be removed from his post as vice-chancellor.  She granted Robinson’s request to use a
portion of his accrued leave time to take off the fall semester.  Starr told Robinson he would receive a
lump-sum payout of the remaining leave time if he were to resign from the
District at the end of the fall semester.href="#_ftn8" name="_ftnref8" title="">>[8] 

The Action Below

            As
we noted earlier, Robinson filed his initial complaint on May 4,
2010.  He filed his operative third
amended complaint on July 21, 2011. 
It named the District, Griffin, Scolari, and Scolari’s husband as
defendants and contained six causes of action, the fifth of which alleged the
District had unlawfully retaliated against Robinson in violation of Labor Code
section 1102.5.  The fifth cause of
action alleged Robinson had engaged in protected activity by submitting his
Government Code claim to the District. 
As relevant here, Robinson alleged the District retaliated against him
by: (1) constructively terminating him from his administrative position, (2)
denying him any opportunity to challenge administratively any adverse href="http://www.fearnotlaw.com/">employment action concerning his
administrative position, (3) withholding wages in the form of vacation time he
had accrued as an administrator, (4) illegally threatening to garnish his wages
to recoup alleged overpayments, (5) imposing unfavorable assignments on him
without regard to his seniority, and (6) suspending the selection process for a
dean position for which he had applied.

            Robinson
later voluntarily dismissed the case against Griffin with prejudice, and on
February 24, 2012, the remaining defendants moved for summary
judgment.  Regarding the fifth cause of
action for retaliation, the District argued Robinson could not demonstrate
either that he had suffered an adverse employment action or any causal link
between the Notice and his alleged protected activity. 

            After
a hearing, the trial court granted summary judgment to the District on the
fifth cause of action.  The court ruled
that “the only potentially cognizable adverse employment actions were the
Notice . . . and alleged constructive termination.  The other cited incidents of retaliation are
not actionable, not supported by evidence, and/or untimely.  The earliest protected activity cited in the
complaint was the filing of the government claim.  Mr. Griffin explains that he issued the
Notice . . . in response to the second Oppenheimer investigation.  [Robinson] has not presented sufficient
responsive evidence showing that Mr. Griffin’s reasons were pretextual or that
there is a nexus between the protected activity and the asserted adverse
employment action.”

            The
District filed a memorandum of costs, and Robinson moved to strike or tax some
of those costs.  The trial court denied
Robinson’s motion and awarded costs to the District. 

            The
court entered judgment for the District, and Robinson filed a timely notice of
appeal.

Discussion

            On
appeal Robinson challenges only the trial court’s grant of summary judgment on
his claim for retaliation.  He makes
several claims of error.  First, he
contends the trial court incorrectly rejected his claim of constructive
discharge.  Second, he argues the court
erred in finding the other alleged retaliatory acts were either not actionable,
unsupported by evidence, or untimely. 
Finally, he asserts the trial court committed error in failing to
aggregate all of the instances of allegedly href="http://www.mcmillanlaw.com/">retaliatory conduct in determining
whether there had been an adverse employment action.  We will address these arguments after setting
out the applicable law and our standard of review.

I.          >Governing Law and Standard of Review

            Labor
Code section 1102.5, subdivision (b) prohibits an employer from
retaliating “against an employee for disclosing information to a government or
law enforcement agency, where the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or regulation.”  “This provision reflects the broad public
policy interest in encouraging workplace whistle-blowers to report unlawful
acts without fearing retaliation.”  (>Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66, 77.)  A report by an employee
of a government agency to his or her employer constitutes a protected
disclosure under this section.  (Lab.
Code, § 1102.5, subd. (e).)

            “The
elements of a section 1102.5(b) retaliation cause of action require that (1)
the plaintiff establish a prima facie case of retaliation, (2) the defendant
provide a legitimate, nonretaliatory explanation for its acts, and (3) the
plaintiff show this explanation is merely a pretext for the retaliation.”  (Patten
v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384 (>Patten).)  These elements are the same as those for a
cause of action for retaliation under the California Fair Employment and
Housing Act (FEHA), Government Code section 12940, subdivision (h).  (Patten,
supra, 134 Cal.App.4th at pp. 1381, 1386, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 (>Yanowitz); see Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453 (>Akers).)

            A
plaintiff establishes a prima facie case of retaliation by showing: (1) he
engaged in protected activity; (2) his employer subjected him to an adverse
employment action; and (3) there is a causal link between plaintiff’s
engagement in protected activity and the adverse employment action.  (Patten,
supra, 134 Cal.App.4th at p. 1384.) 
In this case, the parties appear to agree Robinson engaged in protected
activity within the meaning of Labor Code section 1102.5 by filing his
claim under Government Code section 910 on March 11, 2010.  Thus, there is no dispute that Robinson
satisfied the first element of his prima facie case.  The parties’ arguments focus instead on
whether Robinson suffered any adverse employment action and whether he
demonstrated a causal link between the alleged adverse action and his
engagement in protected activity.

            “A
motion for summary judgment shall be granted if all the evidentiary papers
submitted, which we review independently, 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.”  (Patten, supra, 134 Cal.App.4th at p. 1383.)  A defendant seeking summary judgment bears
the initial burden of proving plaintiff’s cause of action has no merit, either
by showing that one or more elements of the cause of action cannot be
established, or by showing there is a complete defense.  (Morgan
v. Regents of University of California (2000) 88 Cal.App.4th 52, 67 (>Morgan), citing Code Civ. Proc.,
§ 437c, subds. (a), (o)(2).) 
“Once the defendant’s burden is met, the burden shifts to the plaintiff
to show that a triable issue of fact exists as to that cause of action.”  (Morgan,
supra, 88 Cal.App.4th at p. 67.) 


            In
an action claiming retaliation under either the FEHA or Labor Code
section 1102.5, if an employee establishes a prima facie case of
retaliation, the employer is required to offer a legitimate, nonretaliatory
reason for the adverse employment action. 
(Akers, supra, 95 Cal.App.4th
at p. 1453.)  A plaintiff can make
out a prima facie case “by producing evidence of nothing more than the
employer’s knowledge that the employee engaged in protected activities and the
proximity in time between the protected action and the allegedly retaliatory
employment decision.”  (>McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae).)  This evidence
satisfies only the plaintiff’s initial burden, however.  (Ibid.)  If the employer then 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, supra, 95 Cal.App.4th at
p. 1453.)

            The
employee may show the employer’s claimed nonretaliatory reason is pretextual “‘“either
directly by persuading the court that a [retaliatory] reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation
is unworthy of credence.”’ 
[Citation.]”  (>Morgan, supra, 88 Cal.App.4th at
p. 68.)  While a retaliation case
may be built on either direct or circumstantial evidence, circumstantial
evidence of pretext must be specific and substantial to create a triable issue
of fact on whether the employer intended to retaliate on an improper
basis.  (Id. at pp. 67, 69.) 
Once the employer has offered a legitimate, nonretaliatory reason for
the adverse employment action, the temporal proximity between the employee’s
protected activity and the adverse employment action is not alone sufficient to
raise a triable issue of fact as to pretext. 
(See Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 353.)  This
is especially true where the employer raised questions about the employee’s
performance before he engaged in
protected activity.  (See >ibid. [in disability discrimination
case, temporal proximity alone does not create triable issue as to pretext
where employer had criticized employee’s performance before employee disclosed
symptoms of disability].)

II.         >Robinson’s Constructive Discharge Claim
Fails.

            Robinson
contends the trial court erred in rejecting his alleged constructive discharge
as a basis for denying summary adjudication on his retaliation claim.  The District’s motion for summary
adjudication argued Robinson could not show he had been subjected to an adverse
employment action because he had voluntarily resigned from his position as vice-chancellor
while on administrative leave.href="#_ftn9"
name="_ftnref9" title="">[9]  As he did below, Robinson contends he
resigned after receipt of the June 30, 2010 letter from the District’s
counsel, because any reasonable employee in his position would have realized
the District intended to terminate him from his administrative position.  Robinson maintains he resigned to “avoid the
significant and lasting stigma of being terminated,” rather than waiting to a
termination he deemed “inevitable.” 
According to Robinson, he believed his termination was inevitable
because the June 30, 2010 letter falsely claimed he would have no right to
a hearing or appeal from dismissal from his administrative position.  This claim does not withstand scrutiny.href="#_ftn10" name="_ftnref10" title="">[10]

A.        >Elements of a Constructive Discharge Claim

            “In
order to establish a constructive discharge, an employee must plead and prove,
by the usual preponderance of the evidence standard, that the employer either
intentionally created or knowingly permitted working conditions that were so
intolerable or aggravated at the time of the employee’s resignation that a
reasonable employer would realize that a reasonable person in the employee’s
position would be compelled to resign.” 
(Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th 1238, 1251 (Turner).)  Ordinarily, whether working conditions were
so intolerable as to meet the Turner
standard is a question of fact.  (>Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1022 (Scotch).)  Summary judgment or adjudication is
nevertheless appropriate “when, under the undisputed facts, the decision to
resign was unreasonable as a matter of law.” 
(Ibid.)

B.        Robinson
Failed to Show the Existence of a Triable Issue of Fact on His Constructive
Discharge Claim.

            In
response to the District’s assertion that Robinson had resigned from his
position as vice-chancellor, Robinson claimed he was “compelled to resign his
administrative position” because the June 30, 2010 letter from District
counsel Jeff Sloan incorrectly represented Robinson was not entitled to a
hearing or appeal of his dismissal from that position.  Robinson’s claim does not withstand scrutiny,
and we conclude he failed to demonstrate the existence of a triable issue of
fact on his constructive discharge claim.

            First,
Robinson’s argument rests on an unspoken—and unproven—factual premise.  It assumes his termination was a foregone
conclusion and seeks to use Sloan’s letter as proof of that premise.  But both the Notice and Sloan’s letter state
that the final decision to terminate Robinson would be up to the College’s
board of trustees, not to Griffin or Sloan. 
(See Ed. Code, § 87669 [“The governing
board shall determine whether a contract or regular employee is to be
dismissed”], italics added.)  The Notice
explained that Robinson had the right to respond to the charges orally or in
writing and that “any response he may submit will be presented to the Board of
Trustees before it makes a final decision
concerning the intended disciplinary action.”  (Italics added.)  Similarly, Sloan’s June 30, 2010 letter
stated, “the District is committed to providing such further appellate process
as the law may require in the event of a final decision by the Board of Trustees to terminate Dr. Robinson.”  (Italics added.)  Thus, both Griffin and Sloan stated that before
Robinson could be disciplined or terminated, he would be entitled to be heard
by the actual decision making body—the College’s board of trustees.  At most, Sloan’s letter sets forth the >District’s position on certain issues in
the case, but it can shed no light on the intentions of the >board of trustees, the only entity with
the power to terminate Robinson. 
Robinson offered no proof on whether that body intended to terminate him
without a hearing.

            Second,
Robinson’s argument ignores the context in which Sloan’s letter was sent.  While Robinson claims the letter is an
assertion by the District that he could be dismissed from his administrative
position without a hearing or right to appeal, Sloan wrote the letter to Del
Anderson as part of her Skelly review.  The correspondence demonstrates that all
participants in that process understood the Skelly
review extended to Robinson’s proposed dismissal from both of his
positions:  Sloan’s letter discusses the
evidence supporting Robinson’s dismissal “from both his educational administrator and tenured faculty positions[.]” 
(Italics added.)  Moreover,
Sloan’s discussion of both positions is inconsistent with the claim that the
District believed Robinson was not entitled to any hearing with regard to his
position as vice-chancellor.  Similarly,
in his July 8, 2010 response to Sloan’s letter, Robinson’s counsel
addressed the charges against Robinson as they related to both his
administrative and his faculty positions.href="#_ftn11" name="_ftnref11" title="">>[11]  Finally, Anderson clearly understood her review
included the proposal to dismiss Robinson from both positions he held.  She therefore considered the evidence with
regard to the administrative and faculty positions and ultimately concluded
there were not reasonable grounds to terminate Robinson from the latter.href="#_ftn12" name="_ftnref12" title="">[12]  In short, the letter Robinson offers as proof
of the District’s intent to terminate him without
a hearing was actually written as part of the predismissal Skelly hearing process, and the Skelly
review encompassed not only his faculty position, but also his administrative
position.

            Third,
focusing on the June 30, 2010 letter itself, Robinson asserts Sloan
misrepresented the law regarding Robinson’s rights when Sloan stated that under
Education Code section 72411, Robinson served in his vice-chancellor capacity
“at the pleasure of the board of trustees and, as a consequence, can be
dismissed from that position at the District’s will.  Accordingly, he is not entitled to a hearing
or appeal of his dismissal from his administrative position.”  The letter went on to note, however, that
Robinson retained his status as a tenured faculty member, and that “dismissal
from his tenured faculty position is subject to the Education Code provisions
governing the dismissal and penalties for academic employees for cause.  (See Educ. Code § 72411.5.)” 

            Education
Code section 72411.5 provides that “[i]f the administrator has tenure as a
faculty member, the dismissal of, and imposition of penalties for cause on> the administrator shall be in
accordance with the provisions applicable to faculty members.”  (Ed. Code, § 72411.5, italics
added.)  Thus, the District contends, the
June 30, 2010 letter correctly stated that Robinson’s proposed termination
from his vice-chancellor post would be subject to the procedures applicable to
faculty members.

            We
disagree with the District on this point, because Sloan’s letter misstated the
law as it applied to Robinson.  While
educational administrators generally may be dismissed without a hearing or
right of appeal, educational administrators like Robinson, who are also tenured
faculty members, receive the procedural protections accorded to tenured
faculty.  (Ed. Code,
§ 72411.5.)  And although Sloan did
cite Education Code section 72411.5, the actual text of his letter does
not make clear that the lengthy procedural protections he describes applied to
Robinson’s proposed termination from both positions, rather than to his faculty
position alone.

            Nevertheless,
Robinson cannot use the misstatement in Sloan’s letter to create a triable
issue of fact on the issue of constructive discharge.  Despite the misstatement in its text, Sloan’s
letter correctly cited Education Code section 72411.5, which makes clear
the procedures governing Robinson’s dismissal from his tenured faculty position
would also apply to his administrative position.  Tellingly, the Skelly hearing officer, Del Anderson, considered the issue of
Robinson’s fitness for both positions. 
Robinson was represented by counsel, who received a copy of the June 30
letter.  By reading the cited statute,
Robinson’s counsel presumably became aware of the actual procedures applicable
to his client’s proposed termination.href="#_ftn13" name="_ftnref13" title="">>[13]  (See Turner,
supra, 7 Cal.4th at p. 1246 [“an employee cannot simply ‘quit and sue,’
claiming he . . . was constructively discharged”].)

            In
any event, this misstatement of the applicable dismissal procedures is not the
sort of “‘intolerable’ or ‘aggravated’” working condition that would compel a
reasonable employee to resign.  (See >Turner, supra, 7 Cal.4th at p. 1247
[“‘[s]ingle, trivial or isolated acts of [misconduct] are insufficient’ to
support a constructive discharge claim”; demotion accompanied by reduction in
pay insufficient]; Thompson v. Tracor
Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171 [while not
encouraged, “employers have the right to unfairly and harshly criticize their
employees, to embarrass them in front of other employees, and to threaten to
terminate or demote the employee”].) 
Thus, even if Robinson believed Sloan’s letter was an expression of the
District’s intent to terminate him from his administrative position without a
hearing, a single letter brief to a hearing officer shows “no continuous
pattern of harassment or aggravating conditions[.]”  (Turner,
supra, 7 Cal.4th at p. 1255.)

            In
addition, “[u]nder Turner, the proper
focus is on the working conditions themselves, not on the plaintiff’s >subjective reaction to those
conditions.”  (Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, 1636.)  Robinson’s assumption that the District intended
to terminate him without further process is not enough to show that “the
resignation was coerced[.]”  (>Turner, supra, 7 Cal.4th at
p. 1246.)  To the contrary, Robinson
admits he resigned—a month after Anderson’s ruling, following a hearing
addressing both of his positions—to “avoid the significant and lasting stigma
of being terminated,” a fact which indicates his “resignation was voluntary and
strategic, not . . . coerced or compelled by [the District’s] acts.”  (Id.
at p. 1255 [no constructive discharge where plaintiff admitted to having
resigned because he believed his employer was “‘setting him up’ for termination
and that his ‘chances would be better’ in future litigation if he preempted his
discharge”].)  Robinson’s claimed
constructive discharge is a post hoc rationale unsupported by the evidence.

            In
light of these facts, we conclude there is no disputed evidence from which a
reasonable trier of fact could find the District created circumstances that
would have compelled a reasonable employee in Robinson’s position to
resign.  (See Scotch, supra, 173 Cal.App.4th at p. 1022 [summary judgment
appropriate where decision to resign is unreasonable as a matter of law].)

III.       The
Remaining Alleged Acts of Retaliation Do Not Create Triable Issues of Fact on
Robinson’s Retaliation Claim.

            In
addition to his alleged constructive discharge, Robinson’s opening brief cites
three other actions as evidence of actionable retaliation.href="#_ftn14" name="_ftnref14" title="">[14]  As we explain, none of these actions, either
individually or in the aggregate, are sufficient to create a triable issue of
fact on his retaliation claim.  Robinson
has therefore failed to demonstrate the trial court erred in granting summary
judgment.

A.        >Dispute Over Payment for Accrued Vacation

            Robinson
first asserts the District improperly compensated him for vacation time he had
accrued in his administrative position at the much lower pay rate for his
faculty position.  He argues this is
evidence of retaliation.  The precise
facts underlying this argument are not entirely clear, because Robinson has
largely failed to provide us with proper citations to the record and has not
adequately explained the relevance of the evidence he does cite.  It is not our obligation to review the record
“to ferret out such asserted evidence.” 
(Mueller, supra, 176
Cal.App.4th at p. 816, fn. 5.)

            Insofar
as we can discern, when Robinson resigned his position as vice-chancellor to
return to the faculty, he asked the District to permit him to use earned
vacation time “effective August 13, 2010 until the last day of classes of
the [fall 2010] semester and to receive a cash payout for all the remaining
days of [his] earned vacation.”  The
District approved this request, and Robinson was allowed to take off the fall
2010 semester using a portion of his accrued vacation.  He was told the leave period would exhaust 88
of the 135 days of vacation he had accrued, and the remaining 47 days would be
paid to him in a lump sum.  Robinson claims
he was compensated for the accrued vacation time at his lower faculty rate of
pay, rather than at the higher rate he would have been owed as an
administrator, and this alleged underpayment was in retaliation for the filing
of his Government Code claim.

            The
District argued below that Robinson had produced no admissible evidence that
any similarly situated administrator who returned to a faculty position was
treated any differently in terms of vacation pay.  It also contends Robinson was treated not
adversely but preferentially, because the evidence established that “Robinson
was allowed [to] take a semester of vacation as a faculty member, even though
faculty members do not accrue vacation.” 
In response to the District’s motion, Robinson claimed he had been
“forced” to use his vacation time while being paid at a faculty rate, while
other administrators had returned to a faculty position were paid for vacation
at the higher rate for administrators.

            On
appeal, Robinson tells us he cited admissible evidence showing he had been
singled out for underpayment.  But the
portions of the record identified in his brief do not support his
argument.  For example, he directs us to
several pages of Starr’s deposition. 
When asked about the issue of Robinson’s vacation pay, however, Starr
testified, “I don’t have anything to do with the accrued days.”  She also testified she did not make the
decision concerning the rate at which Robinson would be paid. 

            In
addition, these portions of the record do not appear to disclose the actual
rate at which Robinson was paid for his accrued vacation.  We therefore have no way of assessing the
truth of Robinson’s assertion that he was underpaid for his vacation time.href="#_ftn15" name="_ftnref15" title="">[15]  And while the record does contain a list of
five administrators who were compensated for accrued vacation at their
administrative pay rate, none of them seem to have used accrued vacation to
take an entire semester off from their faculty duties.  In fact, the unusual nature of the District’s
decision to permit Robinson to take the fall 2010 semester off brought a
challenge from the union.  Responding to
that challenge, the College’s Employee Relations Office characterized Robinson’s
situation as “truly unique . . . not only because of the particularities of Dr.
Robinson’s change in status but also because the decision to grant his request
for vacation time was part of an effort by the District to accommodate Dr.
Robinson.” 

            This
evidence is insufficient to show there are disputed issues of fact either as to
whether Robinson suffered an adverse employment action or as to whether there
was a causal link between the alleged adverse action and his protected
activity.  Robinson has therefore failed
to show the trial court erred in granting summary judgment.  (See Hodjat
v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 [it
is not the appellate court’s duty “to resurrect an appellant’s case or comb
through the record for evidentiary items to create a disputed issue of material
fact”].)

B.        >Selection for Dean Position and Rejection of
Grant Proposal

            As
further evidence of retaliation, Robinson mentions the suspension of the
selection process for a dean position for which he applied and the District’s
rejection of a grant proposal he submitted. 
We decline to consider these claims, because these sections of his brief
are almost entirely devoid of proper citations to the record, since they refer
us only to his separate statement of disputed material facts.href="#_ftn16" name="_ftnref16" title="">[16]  (See Mueller,
supra, 176 Cal.App.4th at p. 816, fn. 5 [refusing to consider
factual assertions where plaintiff cited “to his own separate statement of
material facts, and although the separate statement does contain references to
evidence, the references are not to the page numbers of the appellate record”];
Stockinger v. Feather River Community
College (2003) 111 Cal.App.4th 1014, 1024 [“The separate statement is not
itself evidence of anything.  It is mere
assertion.”].)  In addition, Robinson’s
third amended complaint did not plead the rejection of his grant proposal as
one of the factual bases for his retaliation claim.  Because “the pleadings set the boundaries of
the issues to be resolved[,]” the District was not required “to refute
liability on some theoretical possibilities not included in the
pleadings.”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486,
499.)

IV.       >Failure to Aggregate Instances of Alleged
Retaliatory Conduct

            Robinson
also contends the trial court erred in failing to aggregate all of the
District’s allegedly retaliatory conduct in determining whether he had been
subjected to adverse employment actions. 
(See Yanowitz, supra, 36
Cal.4th at p. 1058 [“a series of separate retaliatory acts collectively
may constitute an ‘adverse employment action’ even if some or all of the
component acts might not be individually actionable”].)  He identifies three additional allegedly
retaliatory actions he contends the trial court should have considered:  (1) the recommendation that he be terminated
from his faculty position as well as his administrative position “even though
[the District] does not claim it had any grounds for doing so, and later
decided not to accept the recommendation;” (2) “illegally threatening to
garnish [his] wages in order to recoup an alleged overpayment of his
administrator vacation time;” and (3) ignoring his rights under the applicable memorandum
of understanding by assigning him to “unacceptable positions” and only
relenting after he filed a union grievance. 
We have examined the record and applicable law, and we conclude Robinson
has failed to demonstrate the trial court erred.

A.        >Recommended Termination from Faculty
Position

            With
respect to the recommendation that Robinson be terminated from both his faculty
and administrative positions, the District’s motion for summary judgment stated
that Griffin sent Robinson the Notice because Oppenheimer had concluded “among
other things, that [Robinson] had been dishonest during the investigations of
his alleged misconduct and he engaged in inappropriate behavior for an
administrator.”  As supporting evidence,
the District cited Griffin’s deposition testimony that he had recommended
Robinson’s termination because Robinson had used profanity when referring to
women, denigrated other employees and questioned their sexual orientation,
tried “to dominate and break people down using power differentials,” denied
individuals the ability to function in the workplace, and been dishonest about
his conduct.  The District also cited the
Notice itself, which reflected these concerns. 
It also relied on Robinson’s own deposition testimony, in which he
stated he understood from the Notice that his termination was being recommended
“on the basis of dishonesty, evidence of unfitness for service, and refusal to
obey school laws[.]” 

            Thus,
the District put forward substantial evidence of legitimate, nonretaliatory reasons
for recommending Robinson’s termination. 
(Morgan, supra, 88 Cal.App.4th
at pp. 74-75 [declarations from decision makers who gave specific,
job-related reasons for decision not to hire plaintiff sufficed to meet
employer’s burden on summary judgment]; see McGrory
v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1527-1528
[deception or refusal to cooperate with internal investigation is legitimate
reason for termination].)  Once the
District did so, Robinson could avoid summary judgment only by offering
substantial evidence that the District’s stated reasons were either untrue or
pretextual, or that the District was actuated by a retaliatory motive.  (Morgan,
supra, 88 Cal.App.4th at p. 75.) 
Robinson’s briefs on appeal point us to no such evidence, however, and
as we have explained above, his contention that the District did not claim it
had any grounds for recommending his termination from both positions
contradicts the record.

B.        >“Illegal” Garnishment of Pay

            Turning
to Robinson’s claim that the District “illegally” threatened to garnish his
wages to recoup an overpayment of vacation time, he directs us to several pages
in the record showing that the College’s human resources department concluded
he had been overpaid in August 2010.  Robinson
was paid his higher administrative salary in advance for that entire month, although
he resigned his post as vice-chancellor and returned to his faculty position
effective August 12.  The College
informed him it would collect the net amount of the repayment by making
deductions from his pay over the remainder of 2010.  The College’s director of payroll services
wrote to Robinson on August 27, 2010, to inform him that the College would
implement the payroll deduction schedule unless it heard from him by
September 7.  We have been directed
to nothing in the record showing how or whether Robinson responded.

            Contrary
to the claims in Robinson’s opening brief, this payroll matter appears to have
had nothing to do with an overpayment of vacation time.  Perhaps more important, Robinson does not
even dispute that he was overpaid for
August 2010.  He thus does not appear to
challenge the correctness of the College’s decision.  Furthermore, Robinson directs us to no
evidence of the required causal link between the overpayment issue and his
engagement in protected activity.  (Morgan,
supra, 88 Cal.App.4th at p. 69.) 
Temporal proximity alone is insufficient to satisfy Robinson’s burden of
showing a triable issue of fact on whether his employer’s articulated reason
for its action was untrue and pretextual. 
(Arteaga v. Brink’s, Inc., supra,
163 Cal.App.4th at p. 353.)  Because
Robinson failed to offer substantial evidence that the College’s stated reason
for recouping the overpayment was merely a pretext and that its decision had a
retaliatory motive, he did not create a triable issue of fact on this
claim.  (See Scotch, supra, 173 Cal.App.4th at p. 1021.)

C.        >Dispute Over Assignments

            Robinson
has forfeited his contention that the District retaliated “by assigning him to
unacceptable positions” because this portion of his brief cites us to no
supporting evidence in the record.  (See >Mueller, supra, 176 Cal.App.4th at
p. 822 [plaintiff forfeited retaliation claim under Lab. Code,
§ 1102.5 where factual representations in his briefs were unsupported by
citations to the record].)  In addition,
his brief states the District relented after he filed a grievance, so it
appears the assignment issue was ultimately resolved in his favor.  Quite apart from his failure to support his
claims with citations to the record, Robinson has not demonstrated the
disagreement over his assignment was anything other than a “mere
inconvenience[] or insignificant change[] in job responsibilities.”  (Yanowitz,
supra, 36 Cal.4th at p. 1060; see Mueller,
supra, 176 Cal.App.4th at p. 822 [transfer of employees is personnel
matter and does not rise to level of whistleblower retaliation]; >McRae, supra, 142 Cal.App.4th at
p. 393 [transfer of employee not adverse employment action when it is into
a comparable position and does not result in substantial harm].)  It therefore does not appear the dispute over
assignments would rise to the level of an adverse employment action in any
event.href="#_ftn17" name="_ftnref17" title="">[17]

Disposition

            The
judgment is affirmed.  Costs on appeal to
respondent.  (Cal. Rules of Court,
rule 8.278(a)(1), (2).)

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Simons, J.

 

_________________________

Needham, J.