Opinion
A156820
05-29-2020
JOHN FITZHUGH, Plaintiff and Appellant, v. CITY OF EUREKA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR160284)
Appellant John Fitzhugh sued his former employer, respondent City of Eureka (the City), for unlawful retaliation and age discrimination. The trial court granted summary judgment for the City and Fitzhugh now appeals. We reverse.
BACKGROUND
A. The Pleadings
Fitzhugh initiated this litigation in June 2016. According to the allegations of his operative pleading (a "supplemental" complaint filed on December 14, 2017), Fitzhugh began working for the City in 1988 as a building inspector, and over the years worked his way up to the position of Deputy Building Official.
He alleged that until approximately 2010, he had received superior performance evaluations. But after that, two alleged incidents caused him to be subjected to an allegedly unlawful pattern of retaliation and discrimination.
First, he alleged that in May 2010, he lodged a complaint against his supervisor, Mike Knight, the Assistant City Manager of Operations, accusing Knight of creating a hostile work environment and other misconduct (lying on performance evaluations, engaging in retaliatory behavior, and discrimination) and that his complaints against Knight were investigated and found to be either unfounded or not substantiated.
Second, Fitzhugh alleged that the following year, in May 2011, he was subpoenaed to testify in a trial involving the City and met with the City Attorney who allegedly tried to "coach" him. He alleged the City Attorney "attempted to alter [Fitzhugh's] testimony by asking [him] to testify a certain way in an attempt to protect Mike Knight and the City." The City Attorney also allegedly "asked [Fitzhugh] to state he did not recall in response to any incriminating questions." According to the allegations, Fitzhugh responded by "inform[ing] the City Attorney he was simply going to tell the truth on the stand and did not need to be coached by her in any way," and "then proceeded to testify at the trial, answering the questions truthfully as opposed to how the City Attorney had instructed him to answer the questions."
Fitzhugh alleged that as direct result of bringing his complaint against Knight in May 2010 and refusing to testify at trial in the manner the City Attorney had requested in May 2011, the City had retaliated against him. He alleged the retaliation "include[d] but [was] not limited to" seven adverse employment actions that were allegedly taken as a direct result of his "protected conduct," and alleged the retaliation was "still occurring as of the date of this complaint." The adverse actions alleged were the following:
1. Despite the fact that in 2008 the City Manager had told him he would become the next Chief Building Official, Fitzhugh was not promoted to that position, and instead a younger and less qualified person received the promotion.
2. In February 2014, his position as Deputy Building Official was eliminated, and he was demoted to another job ("Senior Plans Examiner/Senior Building Official"), with frozen pay and decreased benefits.
3. Ten months later, in December 2014, he had a conversation about job promotions with the City's Chief Building Official, Brian Gerving, who followed up in an email telling him no additional promotions would be created and no upgrades in position would be available to him.
4. In May 2015, he applied for the position of "Deputy Public Works Director—Field Operations" but did not receive the job.
5. In November 2015, he expressed interest to Gerving in applying for a recent job opening for a full-time building official but Gerving told him not to bother doing so because he wouldn't get the job.
6. In December 2015, he applied for the position of "Deputy Public Works Director—Utility Operations" but received a letter in January 2016 from William Folger notifying him that his name would not even be included in the pool of possible candidates.
7. Finally, he alleged that in April 2017, while this litigation was pending, he was placed on administrative leave, investigated and eventually, in October 2017, terminated from his job after an image was found on his work computer that the City deemed to be child pornography. He denied ever seeing the picture, alleged the City failed to prove he was responsible for the picture being stored there, and alleged the City wasn't justified in terminating him for this reason which was simply pretextual.
Fitzhugh pled two causes of action based on these allegations. His first cause of action alleged "Unlawful retaliation." His second cause of action, which alleged the City had done these things to him because of his age, was for "Employment Discrimination."
B. The Summary Judgment Motion
The City moved for summary judgment and, in the alternative, for summary adjudication of each cause of action. It did not dispute for purposes of the motion that Fitzhugh had engaged in protected activity by lodging the complaint against his superior, Knight, or that he had suffered the alleged adverse employment actions. Rather, it contended that Fitzhugh could not prevail in proving that either the protected activity or his age had substantially motivated those adverse employment actions. In support, the City introduced evidence that Fitzhugh had been receiving negative performance reviews well before he engaged in any "protected activity"; the City Attorney had no involvement with any of Fitzhugh's job evaluations or decisions about his employment; and all of the actions Fitzhugh identified were motivated by legitimate business reasons.
The City introduced evidence his job performance began declining substantially in April 2008, and he got his first negative performance review in May 2009, for the period April 30, 2008, to April 30, 2009. After that, the negative reviews continued until approximately October 2012.
The evidence of its legitimate reasons is fairly summarized at pages 13-16 of the respondent's brief and will not be repeated here.
Fitzhugh opposed the motion principally on the basis of two declarations by former co-workers attesting to their perceptions that he had been singled out for unequal treatment beginning in 2010. The City filed written objections to those declarations (on the grounds they were speculative, conclusory, lacked foundation and constituted improper lay opinion), and at the hearing asked twice for a ruling on its objections, but the record does not contain a definitive ruling on them. We address the objections below. Fitzhugh also relied on limited deposition excerpts (including his own), as well as his responses to written discovery.
The trial court entertained argument, took the matter under submission and then granted the motion, in a five-and-a-half page written decision. It ruled Fitzhugh could not prove a causal link between the protected activity and the adverse employment actions, and that there was "insufficient evidence of discrimination based on age."
Judgment was entered, and this appeal followed.
DISCUSSION
On appeal, Fitzhugh contends that a causal link was "shown" by the evidence. He does not explain whether this means the City failed to meet its initial burden as the party moving for summary judgment, or whether there were material triable issues of fact (although he asserts that both are true). Despite the imprecise manner in which Fitzhugh has framed the appellate issue, we agree that the trial court erred in granting summary judgment for the City.
Much of his opening brief addresses elements of his causes of action that the City did not challenge in its summary judgment motion (such as whether he engaged in protected activity and whether he suffered actionable adverse employment actions), and so it is unnecessary to address those arguments.
I.
Standard of Review
" 'Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment bears the initial burden of proving the "cause of action has no merit" by showing that one or more elements of plaintiff's cause of action cannot be established or there is a complete defense. [Citations.] 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 v. Regents of University of California (2000) 88 Cal.App.4th 52, 67 (Morgan).)
On review of an order granting summary judgment, " '[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)
Summary judgment is no longer a disfavored procedure, but "is now seen as 'a particularly suitable means to test the sufficiency' of the plaintiff's or defendant's case." (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.)
II.
The Scope of Our Review
Before turning to the merits, we resolve two questions the parties have raised concerning the scope of both the issues and the evidence that we may consider. We also clarify the limited nature of our inquiry in one other important way as well.
First, we confine our analysis to the factual theories of retaliation and discrimination Fitzhugh pled in his complaint. We agree with the City, which argues that the pleadings in the case determine the issues to be decided on summary judgment, and so we cannot consider factual theories in the appellate briefing that Fitzhugh did not plead. It is well-established that " '[t]he pleadings delimit the issues to be considered on a motion for summary judgment,' " and so "a 'defendant moving for summary judgment need address only the issues raised by the complaint.' " (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Here, Fitzhugh concedes that a number of his factual theories on appeal "are not specifically alleged in his complaint." His argument that we should consider them anyway because the pleadings "should not limit appellant's evidence" is conclusory, cites no law and is not persuasive. "To allow an issue that has not been pled to be raised in opposition to a motion for summary judgment in the absence of an amended pleading, allows nothing more than a moving target. For Code of Civil Procedure section 437c to have procedural viability, the parties must be acting on a known or set stage." (Laabs, at p. 1258, fn. 7.)
It also is contrary to Fitzhugh's discussion in his opening brief of the standards governing summary judgment. He acknowledges a defendant's motion must be directed to "the allegations contained in the [c]omplaint," and that the defendant's duty is to "negate[] all theories of liability pleaded by [the] plaintiff."
Second, the parties disagree as to whether we may consider the two declarations by Fitzhugh's former co-workers that he filed in opposition to the City's summary judgment motion to which, as noted, the City had objected on multiple grounds (they lacked foundation, were conclusory, speculative and constituted improper lay opinion). The City argues the trial court properly sustained its objections to those declarations "impliedly." Fitzhugh argues the court didn't sustain the City's objections and they should be considered. We agree with Fitzhugh.
The trial court did not sustain the City's objections but, at most, neglected to rule on them. Along with the City's written evidentiary objections, the City lodged a separate proposed order on its evidentiary objections, listing each one beside blank spaces for the court to indicate whether each objection was "sustained" or "overruled," and it asked twice at the hearing for a ruling on the objections. But after taking the matter under submission, the court did not issue an order in the format proposed by the City, nor indeed any written order on the objections.
Its written decision does not clearly sustain the objections either. In its ruling, the court said the following: "The Declarations provided in opposition to the motion for summary judgment are recitations of the opinions of two co-workers. However, the Declarations are lacking in any real foundation based on observed facts or events. Neither describe with any particularity instances of Plaintiff being 'singled out' and/or given a hard time. The Defendant's objections are well taken. " (Italics added.) In the very next sentence, it concluded that, "The Court cannot find, based on the evidence presented, that the Plaintiff can establish a causal link between the described protected activity and the adverse employment actions." (Italics added.) The court explained that even if Fitzhugh "could make a prima facie case for retaliation," he "has not brought forth 'substantial responsive evidence' to show the [City's] actions were pretextual."
At most, the court's written decision is ambiguous. The court did not say the City's objections were "sustained" but just "well taken." It said it was ruling "based on the evidence presented," a description that encompasses all the evidence. The only objection it specifically alluded to was its observation the declarations were "lacking in any real foundation." But in context, it appears the court simply ruled that the conclusory nature of the declarations made them substantively insufficient to overcome summary judgment, not inadmissible. Given the lack of any specific ruling on specific objections, combined with the court's ambiguous comments which tend to indicate the court did consider the declarations, this record does not show the court sustained the City's objections. Had the City sought clarification from the court about the status of its evidentiary objections we might take a different view, but the City did not do so.
Because the trial court did not rule on the City's objections, we must presume they were overruled and that the trial court considered the evidence in ruling on the merits of the summary judgment, but the City's objections are preserved for appeal. (Reid v. Google (2010) 50 Cal.4th 512, 534.) This means we have the power to consider the City's evidentiary objections on their merits. (See ibid.)
The City has not demonstrated any error, however. Even construing the City's argument that the objections were properly sustained as an argument the trial court erred in overruling them, it has not demonstrated these declarations were inadmissible. In attacking them, the only legal authorities it cites address the sufficiency of evidence to withstand summary judgment in various contexts, not evidentiary issues of admissibility.
See Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [affirming summary judgment for religious branch of Catholic Church under statute of limitations applicable to victims of childhood sexual assault because plaintiff failed to introduce evidence Church was on notice of priest's sexual misconduct; "speculation . . . is grounds for granting summary judgment"]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King) [affirming summary judgment for employer in disability discrimination suit; noting that "plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations"]; Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564 (Kerr) [plaintiff demonstrated no triable issue of fact concerning parent company's tort liability for subsidiary's failure to rehire plaintiff after layoff in violation of subsidiary's employment policies; " 'suspicions of improper motives . . . primarily based on conjecture and speculation' are not sufficient to raise a triable issue of fact to withstand summary judgment"].)
Because the City has shown no error in the admission of these declarations, we will consider them. However, in doing so, we will accord them whatever weight they are due. Statements contained in them that clearly are speculation or hearsay will be disregarded (see Kerr, supra, 216 Cal.App.3d at p. 1564; Code Civ. Proc., § 437c, subd. (d)) and warrant no discussion.
Finally, the third point we clarify relates to the fact that Fitzhugh's two causes of action appear to encompass multiple theories of liability. He alleges seven adverse employment actions taken against him because of either unlawful retaliation (his first cause of action) or age discrimination (his second cause of action), including getting passed over for four job openings between 2010 and 2015, suffering a demotion (in 2014) and, ultimately, getting terminated from his job. Moreover, his first cause of action for retaliation alleges two distinct reasons he was retaliated against: because of the complaint he filed against his direct supervisor, Mike Knight, in 2010, and also because of how he handled himself as a witness in later litigation brought against the City.
Given the procedural posture in which this case comes to us, it is unnecessary to examine every allegedly adverse employment action taken against him, or both theories of retaliation (such as his theory that he was retaliated against because of what transpired with the City Attorney). As an alternative to summary judgment, the City asked for summary adjudication of each cause of action only in their entirety. It did not move for summary adjudication of any specific theory of liability encompassed within either cause of action (such as Fitzhugh's allegations he was retaliated against because of his role in the lawsuit, or any particular adverse employment action that was allegedly motivated by unlawful intent). Nor does it argue on appeal that such relief is appropriate. "[G]enerally a summary adjudication motion 'shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) However, a cause of action for purposes of a summary adjudication motion 'means " 'a group of related paragraphs in the complaint reflecting a separate theory of liability.' " ' " (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 257.) Since the City challenged each cause of action in its entirety, we need not consider whether the City might have been entitled to summary adjudication of any particular liability theory within one of the stated causes of action if another one is viable. If any material issue of disputed fact exists on any theory encompassed by either cause of action, the City was not entitled to summary adjudication of the entire cause of action. Those are the questions to which we next turn.
III.
The First Cause of Action for Retaliation
A. Legal Principles
In Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th 1028, our Supreme Court explained the elements of a cause of action for retaliation and the parties' respective burdens of proof. "[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation." (Id. at p. 1042.) This final step requires the employee to show the employer's legitimate explanation "is merely a pretext for retaliation." (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138; see also, e.g., Yanowitz, supra, 36 Cal.4th at p. 1062 [summary judgment for employer wrongly granted where "there exists a genuine issue of material fact as to whether [defendant's] articulated, nonretaliatory reasons for its actions were pretextual"], italics omitted.)
Pretext, in turn, can be demonstrated in one of two ways, and the amount of evidence needed to withstand summary judgment differs depending on which way the plaintiff tries to prove it. As this court has explained: " '[T]he plaintiff may establish pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." ' [Citations.] Circumstantial evidence of ' "pretense" must be "specific" and "substantial" in order to create a triable issue with respect to whether the employer intended to discriminate' on an improper basis. [Citations.] With direct evidence of pretext, ' "a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." [Citation.] The plaintiff is required to produce "very little" direct evidence of the employer's discriminatory intent to move past summary judgment.' " (Morgan, supra, 88 Cal.App.4th at pp. 68-69, fn. omitted, italics added.)
The kinds of conduct that can prove a causal link are varied. For example, "[a] long period between an employer's adverse employment action and the employee's earlier protected activity may lead to the inference that the two events are not causally connected. [Citation.] But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection." (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 (Wysinger), italics added.) So, for example, Wysinger affirmed a jury verdict for the plaintiff in a workplace retaliation case even though the plaintiff's protected activity (filing an EEOC claim) took place three or four years before he was denied a sought-after job transfer. The court held the jury could conclude the employer's action was motivated by retaliatory animus despite the passage of time, because the employee was not invited to serve on management committees or to apply for management positions after lodging his complaint and there was evidence the employee had repeatedly been "treated with 'coldness.' " (Id. at pp. 421-422.) Treating an employee in an unusual manner can be evidence of a causal link. (See, e.g., Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 394 [affirming jury verdict where employer engaged in pattern of conduct consistent with retaliatory intent by counseling plaintiff about his job performance after plaintiff had filed formal complaint and subjecting plaintiff to "unusual" treatment by requiring plaintiff to get doctor's note after just one-day illness].) And so can soliciting negative feedback about an employee. (See Yanowitz, supra, 36 Cal.4th at p. 1062 [error in granting summary judgment for defense because of triable issue of material fact as to whether employer's articulated, non-retaliatory reasons were pretextual, in part because manager's "active solicitation of negative information concerning [plaintiff] . . . strongly suggests the possibility that her employer was engaged in a search for a pretextual basis for discipline, which in turn suggests that the subsequent discipline imposed was for purposes of retaliation"].)
B. The Issues Here
This case requires some sorting out. On appeal, Fitzhugh does not contend the City failed to meet its burden to show legitimate, non-retaliatory and non-discriminatory reasons for the adverse employment actions it took (and the City also demonstrates this, without contradiction, at pages 13-16 of its respondent's brief with one exception discussed below). And for the most part, Fitzhugh also does not try to cast doubt on the legitimacy of those reasons by attacking them as " ' "unworthy of credence" ' " or by showing " ' "that a discriminatory reason more likely motivated the employer" ' " than its proffered, legitimate reasons. (Morgan, supra, 88 Cal.App.4th at pp. 68-69.) He just argues that the evidence "shows a causal link" in various ways. But ferreting out exactly what that means, and what the City has to say in response, is no easy task.
The City did not assert below in its summary judgment motion, nor does it argue now, that the requisite decision-makers had no knowledge of Fitzhugh's complaint against Knight, which is " '[e]ssential to a causal link' " (Morgan, supra, 88 Cal.App.4th at p. 70), and so we will assume for purposes here that they did.
By contrast, the City does assert Fitzhugh admitted in deposition he doesn't know if his supervisor, Gerving, knew about his conversation with the City Attorney, but it is unnecessary to consider that theory of liability for the reasons we have discussed. We also note that Fitzhugh introduced Gerving's deposition testimony that he, Gerving, was personally concerned that Fitzhugh might testify untruthfully against the City (because Fitzhugh had a grudge against the City, told Gerving he was motivated to do so, and told Gerving he could give damaging testimony), and that Gerving was present for Fitzhugh's testimony and believed Fitzhugh had lied on the stand.
C. Analysis
In this case, the evidence is not overwhelming. But on this record there is the thinnest evidence of retaliatory motive sufficient to withstand summary judgment on the issue of causation on Fitzhugh's cause of action for retaliation. We evaluate this issue based on the theories and arguments Fitzhugh has advanced in his opening brief.
First, Fitzhugh contends "the timing shows a causal link" between his protected activity and adverse employment actions, in two ways.
One is because "there were almost no complaints or negative evaluation[s]" about him until he accidentally sent an email complaining about his supervisor to his supervisor, which he says took place shortly before a very negative performance evaluation that sparked his May 2010 complaint against his supervisor. We do not agree this shows a causal link. This theory about the errant email was not the protected activity alleged in the complaint. (See Laabs, supra, 163 Cal.App.4th at p. 1258.) Nor is an errant email to one's spouse protected activity.
In addition, there is nothing suspect about the timing of Fitzhugh's negative reviews. Fitzhugh received his first negative performance evaluation in May 2009, about a year before he complained about Knight. It identified shortcomings in "critical areas of responsibility" for the period April 2008 to April 2009. The City also introduced evidence that Fitzhugh received two more negative performance evaluations after that, in February 2010 (for the period April 2009 to December 2009) which was still before Fitzhugh had complained about his boss, and again on May 11, 2010, before Knight knew that Fitzhugh had lodged a formal complaint against him. It was not until October 2012 that Fitzhugh was able successfully to correct the problems he'd been exhibiting on the job, through a performance improvement plan his new supervisor, Brian Gerving, put in place after yet another negative review of his work for a one-year period ending April 2012. Given this evidence that Fitzhugh's performance had been suffering for more than a year before he engaged in any allegedly protected activity, no rational fact-finder could conclude that the negative evaluations he received after complaining about Knight or discussing his trial testimony with the City Attorney reflect that his supervisors harbored retaliatory animus against him. On the contrary, his new boss, Gerving, gave him the opportunity to correct his performance problems, and he did so.
In that three-page written memorandum, Knight faulted Fitzhugh for failing in his managerial-level responsibilities in a number of ways (principally, in the area of budget preparation and developing a plan to help improve code enforcement efforts). It summed up by stating that the "needs improvement" category "is primarily due to your apparent lack of follow through on specific direction in critical areas of responsibility that have come to my attention this year. This lack of follow through on specific written and verbal direction well overshadows your other technical strengths. These strengths are important but are less significant for a manager who must focus on higher level matters." (Italics added.)
We do agree, though (partly), with the second way Fitzhugh says "the timing shows a causal link." He argues that less than two months after filing his complaint in May 2010 against his supervisor, Mike Knight, he was passed over for a promotion to succeed Knight as the City's chief Building Official by someone much less qualified, despite having been told the job would be his. The City opted instead to promote Gerving, his former colleague, to the position sometime in 2010 (the record does not say precisely when), and Knight took part in that hiring decision. But Fitzhugh cites no competent evidence Gerving was in fact "less qualified" than he was. On the other hand, the City's evidence that Gerving was chosen because he was more qualified is conclusory. It proffered a declaration by Knight, who said only that Gerving "was the person who previously had to assume Mr. Fitzhugh's code compliance duties because Mr. Fitzhugh failed to get them done," and "[u]ltimately" was determined to be "the most qualified, successful candidate, considering all of the information that we had received." (Italics added.) Even assuming that a declaration so scant on detail or reasons is enough to shift the burden to Fitzhugh to show a triable issue of fact, it is notable for what it does not say. Noticeably absent from Knight's declaration is a denial the hiring panel took into consideration Fitzhugh's complaint against Knight as part of the "information" that led it to pass Fitzhugh over for the promotion. Knight's declaration is silent on that subject.
He cites the assertion by one former co-worker, Michele Carlson, that he was "more qualified at the time of hiring than Mr. Gerving to take over the Chief Building Official position." But her declaration contains no factual foundation for that conclusory opinion. Even assuming that statement is admissible, it is not sufficient to create a triable issue of fact. An opinion is only as good as its reasons and she provides none. (See Evid. Code, § 802.) Likewise, Fitzhugh also cites a statement by his other former colleague, Michael Frick, that "I always believed Mr. Fitzhugh would replace Mike Knight as the chief building official and would have done a great job." That statement lacks foundation too and is purely conjectural.
The omission is all the more notable when contrasted with the declaration of Gerving who was one of the decision-makers involved in a hiring decision some years later, and expressly denied that Fitzhugh's age or protected activity was a factor in that decision.
To begin with, the closeness in time between Fitzhugh's complaint and the promotion decision supports an inference of causation. (See, e.g., Flores v. City of Westminster (9th Cir. 2017) 873 F.3d 739, 749-750 [upholding jury finding that plaintiff's filing of administrative complaint against superiors was a substantial motivating reason for adverse employment action taken five months later; " '[d]epending on the circumstances, three to eight months is easily within a time range that can support an inference of retaliation' "].)
Furthermore, our review of the record reveals a factual issue as to whether, as Fitzhugh alleged, Dave Tyson, the city manager, had been intending to promote Fitzhugh to the Building Official position in 2008, before Fitzhugh lodged his complaint against Knight. Knight stated in his declaration he was not "aware" that Tyson promised Fitzhugh that he would be the next Building Official, and that in 2008 Tyson would have consulted Knight about that to solicit his recommendation but never did.
On appeal, the City somewhat obfuscates about Fitzhugh's contrary testimony. Citing to portions of Fitzhugh's deposition testimony, the City asserts that Fitzhugh "admits that he does not have any information that the reason that he did not receive the . . . position was because of retaliation"—which is irrelevant, because employees often are not privy to an employer's unlawful workplace animus based on direct, personal observation. Under the City's own legal authority, an "admission" of this sort in deposition is not enough to carry a defendant's burden on summary judgment because the plaintiff could not be expected to have personal knowledge of such matters. (See Villa v. McFerren (1995) 35 Cal.App.4th 733, 748-749 [plaintiff's deposition testimony that he was personally unaware of communications between doctor and insurer held insufficient to meet doctor's burden of proof to show conspiracy cause of action had no merit; "[t]here was no basis for believing plaintiff would have been present during those communications"].) Indeed, direct evidence of intentional discrimination is "rare," which is why such claims usually have to be proved circumstantially. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
The City also asserts Fitzhugh admitted in his deposition that "Tyson[] did not tell [him] that he would receive that position . . . ." But one reasonable inference from Fitzhugh's deposition testimony the City cites—if not the only reasonable inference—is that Tyson implied Fitzhugh would be promoted. We quote that deposition testimony in full:
"Q: Okay. So did you ever have a direct communication with Dave Tyson in which Mr. Tyson told you that would be the next building official?
"A: He never offered me the job; otherwise, I would've taken it and been the building official. [¶] But he said good things were going to be happening for me.
"Q: When did David Tyson tell you that good things were going to be happening for you?
[¶] . . . [¶]
"A: 2008, maybe. I don't know exactly.
"Q: So Mr. Tyson never told you that you would become the next building official did he?
"A: Not directly like that, no. It was kind of common knowledge." (Italics added.)
Because we are required to draw all reasonable inferences in Fitzhugh's favor as the party opposing summary judgment (see Husman, supra, 12 Cal.App.5th at p. 1180), we construe his deposition testimony as evidence Tyson implied he would be promoted though Tyson did not say so directly. If a jury believed that Tyson previously had been intending to promote Fitzhugh to fill Knight's post, then in light of this entire record it could reasonably conclude that a substantial motivating reason Fitzhugh lost out on that opportunity was because, irrespective of his qualifications and performance issues, he lodged his complaint against Knight.
Fitzhugh also cites to evidence that in September 2008, Knight told him "Got good news, the building official position is coming up, Dave wants you to have it." That statement, however, is not set forth in a declaration sworn under penalty of perjury. Rather, it is contained in the investigator's written report of Fitzhugh's claim against Knight, and as such it is hearsay. Fitzhugh might be able to testify about that statement at trial, but the statement recorded in the investigator's report is not competent evidence to oppose summary judgment. (See Kerr, supra, 216 Cal.App.3d at p. 1564; Code Civ. Proc., § 437c, subd. (d).)
Second, Fitzhugh testified in deposition that (at some unspecified point after his 2010 complaint against Knight), "I was told by Brian Gerving not to really bother applying for jobs because there's not going to be any," even though "[p]ositions did come open, and promotions were made within the office." He testified this is why he believed that when he didn't get hired in 2015 for the position of Deputy Public Works Director—Field Operations, the reason had to do with his 2010 complaint against Knight. Although Fitzhugh's opinion is irrelevant, and Gerving stated in his declaration that Fitzhugh didn't get that position because another candidate was more qualified, the evidence he was discouraged from applying for other positions is evidence of retaliatory intent. (See Wysinger, supra, 157 Cal.App.4th at pp. 421-422 [affirming jury verdict for plaintiff based on evidence, inter alia, plaintiff was not invited to serve on management committees or to apply for management positions]; Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 743 [evidence employer falsely told plaintiff no job positions existed is evidence of discriminatory intent sufficient to withstand summary judgment].)
Although this testimony is not quoted or specifically discussed in Fitzhugh's brief, he provides record citations to it at page 18 of his opening brief.
Finally, Fitzhugh cites the declarations of his former co-workers Frick and Carlson, "who both stated that starting sometime in approximately 2010," which was around the time of Fitzhugh's complaint against Knight but a year before the City Attorney incident, "they noticed City management treating him poorly, singling him out and looking for excuses to fire him." Those declarations contain some statements that clearly consist of those individuals' subjective beliefs and speculation about their employer's motives, which are not sufficient to raise a triable issue of fact. (See Kerr, supra, 216 Cal.App.3d at p. 1564; King, supra, 152 Cal.App.4th at p. 433.) But construing those declarations in the light most favorable to Fitzhugh, in substance they reflect that beginning in approximately 2010, they observed a noticeable change in attitude toward Fitzhugh by the City's management personnel, who they said began treating him "poorly" compared to other employees and it seemed "he was being singled out" for worse treatment than other City employees. Frick cited as an example his observation that Knight, and later Gerving, appeared to be "pushing Mr. Fitzhugh's buttons" and "giving him a hard time" to get him to lose his temper as if they were trying to get him to "do something improper so they could fire him" or get him to quit. And Carlson cited as an example the fact that, at some unspecified point, she was asked to start monitoring the time Fitzhugh spent away from his desk but was not asked to monitor anyone else. (See, e.g., Hawkins v. City of Los Angeles, supra, 40 Cal.App.5th at p. 39 [departing from ordinary business practice by requiring plaintiff to get doctor's note after short absence]; Flores v. City of Westminster, supra, 873 F.3d at p. 750 [evidence that workplace policies were inconsistently applied to plaintiff "permits a finding of intentional retaliation" under FEHA].) While there may be a plausible, non-retaliatory explanation for either situation, including the request of Carlson to start monitoring Fitzhugh's work schedule, a jury could infer from either Carlson's or Frick's descriptions of the workplace environment, if it believed them, that the City was "engaged in a search for a pretextual basis for discipline." (Yanowitz, supra, 36 Cal.4th at p. 1062.) Moreover, the very fact that two co-workers observed Fitzhugh's superiors treating him harshly, with no apparent justification, is evidence of "a pattern of conduct consistent with a retaliatory intent." (Wysinger, supra, 157 Cal.App.4th at p. 421; see Yanowitz, at p. 1062 [berating plaintiff in the presence of others]; see also Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 677-679 [reversing summary adjudication of retaliation cause of action under federal law; evidence that head basketball coach began "ratchet[ing] up pressure" on players who complained of race discrimination and singling them out for worse treatment, including yelling at and correcting one player more, held sufficient to establish a causal link].) The witness's description of what they observed was within the province of permissible lay opinion testimony and, as explained above, the City has not demonstrated otherwise.
For example, Frick stated: "From 1997 until approximately 2010, the City management appeared to treat Mr. Fitzhugh with respect equal to that of the other City employees. In approximately 2010, based on my observations, City Management, started treating Mr. Fitzhugh poorly. In fact, it seemed as though he was being singled out and treated worse than the other City employees, something I believed was completely uncalled for. It looked and felt as though Mike Knight, and later, Brian Gerving, were giving him a hard time in hopes Mr. Fitzhugh would lose his temper and do something improper so they could fire him. It also felt as though they were pushing Mr. Fitzhugh's buttons attempting to get Mr. Fitzhugh to quit. . . . [¶] I never understood why Mr. Fitzhugh was treated so poorly by City Management because [he] did his job so well and was such a great employee." Carlson's declaration was similar.
None of Fitzhugh's negative performance evaluations that preceded his May 2010 complaint against Knight expressed concern with his time-keeping habits; they consistently rated him as "competent" in the areas of "punctuality" and "attendance," the most recent one ending on April 1, 2010. It appears that time-management issues began to surface shortly before Fitzhugh lodged his complaint. The first indication we could locate is in a May 11, 2010 performance evaluation by Mike Knight, which states: "In April after several omissions on your time card I specifically asked that you keep me informed when you are out of the office for more than a few hours. You acknowledged the request and agreed to do so. However, this pay period you were out two consecutive Friday afternoons without informing me of your absence as requested and required."
A lay witness may testify in the form of an opinion as long as it is based on his own perception (People v. McAlpin (1991) 53 Cal.3d 1289, 1306; see also Evid. Code, §800, subd. (a)), " 'when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on "subtle or complex interactions" between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations.' " (People v. Sánchez (2016) 63 Cal.4th 411, 456.) Although " '[a] lay witness generally may not give an opinion about another person's state of mind, [the witness] may testify about objective behavior and describe behavior as being consistent with a state of mind.' " (Ibid., italics added; see, e.g., People v. Weaver (2012) 53 Cal.4th 1056, 1086 [witness to robbery-murder allowed to testify defendant was " 'more hostile' " toward one of the victims than others and was "really angry" at him]; People v. Chatman (2006) 38 Cal.4th 344, 397 [witness who saw defendant kick someone repeatedly allowed to testify defendant "seemed to be enjoying it"]; Price v. Northern Electric Ry. Co. (1914) 168 Cal.173, 181 [witness allowed to testify work foreman was giving orders " 'in a hurry up style' " and " 'it was a rush' "; "the witness was entitled to give his conclusions, for the same reasons that a witness may testify as to the appearance of another"]; People v. Manoogian (1904) 141 Cal. 592, 595 [error to exclude testimony as to whether defendant appeared to be acting rationally or irrationally; the questions did not call for an expert opinion "as to the mental sanity of the defendant, but for the result of [witness's lay] observations"]; People v. Deacon (1953) 117 Cal.App.2d 206, 210 [testimony that voices sounded angry held admissible; "[a]nger, like speed or sobriety, must be described as a conclusion" but "[a]nger is [a] fact"].)
For all of these reasons, we conclude the trial court erred in ruling that the retaliation claim was foreclosed as a matter of law. "Proof of discriminatory intent often depends on inferences rather than direct evidence. [Citation.] And because it does, 'very little evidence of such intent is necessary to defeat summary judgment.' [Citation.] Put conversely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283; accord, Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 935.) " '[A]n 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.' " (Husman, supra, at p. 1182 [reversing summary judgment].) The evidence here is sufficient to permit a rational inference that the City acted with an unlawful motive in connection with one or more adverse decisions that it took, and that retaliatory animus was more than "a remote or trivial" reason (CACI No. 2507) for at least some of its decisions.
IV.
The Second Cause of Action for Age Discrimination
Fitzhugh argues the court erred in directing judgment for the City as a matter of law on his age discrimination claim, because "when looking at all adverse employment actions, it becomes apparent the City was doing everything in its power to rid itself of appellant's employment and would use any opportunity it came across to terminate appellant's employment because of his age." The only evidence he cites is that he "received multiple comments from city employees regarding his age."
That evidence fails to raise any triable issue of fact regarding age discrimination. None of the cited comments refer to his age; they relate to his computer skills, which is a matter of legitimate, non-discriminatory business concern. (See, e.g., Guz, supra, 24 Cal.4th at p. 360 [evidence of employer's reasons for terminating plaintiff were "manifestly unrelated to intentional age bias," including plaintiff's poor computer skills].) In addition, in one instance, the individual who was supposedly promoted ahead of him because of age discrimination was over 40 too. It is "simply speculation" to attribute any of the adverse employment actions taken against him to age bias. (See Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009 [affirming summary judgment for employer on age discrimination claim]; see also Guz, at pp. 369-370 [affirming summary judgment for employer who "presented a plausible, and largely uncontradicted, explanation" it took the challenged actions "for reasons unrelated to age"].)
He cites his own deposition testimony describing comments by "probably" Mike Knight that he wasn't "tech savvy," he should use a typewriter and not a computer, and that his colleague Brian Gerving was better with computers than he was. He testified that he believed these comments had something to do with his age because Gerving was "young. And might be more savvy with computers." --------
Although the trial court erred in granting summary judgment, we conclude the City is entitled to summary adjudication of Fitzhugh's second cause of action. (See People ex rel. Government Employees Ins. Co. v. Cruz (2016) 244 Cal.App.4th 1184, 1197 ["[i]f a trial court erroneously grants summary judgment when a factual dispute exists but affects fewer than all causes of action, the appellate court may direct the trial court to enter an order granting summary adjudication of the unaffected causes of action if the moving party alternatively moved for summary adjudication"].)
DISPOSITION
The judgment is reversed. The matter is remanded with directions that the trial court vacate the order granting the City's motion for summary judgment and enter a new order denying the City's motion for summary adjudication of Fitzhugh's first cause of action for unlawful retaliation and granting the City's motion for summary adjudication of the second cause of action for age discrimination. Appellant shall recover his costs.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.