Opinion
B322132
01-23-2024
KEVORK KAZANDJIAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Gusdorff Law and Janet Gusdorff for Plaintiff and Appellant. Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief Assistant City Attorney, Denise C. Mills, Chief Deputy City Attorney, and Timothy Martin, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV21241 Bruce G. Iwasaki, Judge. Affirmed.
Gusdorff Law and Janet Gusdorff for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief Assistant City Attorney, Denise C. Mills, Chief Deputy City Attorney, and Timothy Martin, Deputy City Attorney, for Defendant and Respondent.
WEINGART, J.
Plaintiff Kevork Kazandjian sued his employer, the City of Los Angeles (City), for retaliation under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and Labor Code section 1102.5. He alleged City engaged in various adverse employment actions, including not selecting him for promotions, in retaliation for his filing of a prior lawsuit.
City moved for summary judgment. It argued legitimate, nonretaliatory reasons existed for the alleged adverse employment actions, and that Kazandjian could not demonstrate these reasons were pretextual or that retaliatory animus contributed to City's actions. The trial court granted the motion.
On appeal, Kazandjian argues triable issues of material fact exist as to pretext and City's retaliatory animus. In particular, Kazandjian argues the trial court failed to make inferences in his favor, as required under summary judgment standards. Kazandjian further argues the trial court erred in granting certain evidentiary objections to his declaration.
We conclude Kazandjian's evidence does not give rise to rational inferences in his favor, and therefore the trial court did not err in granting summary judgment. Nor did the court prejudicially abuse its discretion in sustaining the evidentiary objections at issue. Accordingly, we affirm.
FACTUAL AND PROCEDRAL BACKGROUND
A. Kazandjian's Lawsuits
In 1999, City's Information Technology Agency (ITA) promoted Kazandjian to Senior Systems Analyst (SSA) I. On May 4, 2015, Kazandjian sued City for disability discrimination, harassment, and retaliation. In October 2016, the parties settled the matter.
On September 5, 2018, Kazandjian filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging City retaliated against him for his prior lawsuit. The complaint requested an immediate right to sue letter; DFEH issued one that same date. On January 3, 2019, Kazandjian filed an administrative claim for damages under Government Code sections 905 and 910 et seq.
On June 18, 2019, Kazandjian filed a civil complaint alleging City violated FEHA and Labor Code section 1102.5 by taking certain adverse employment actions against him in retaliation for his 2015 lawsuit. He alleged City denied him promotions to SSA II positions, equal opportunities to apply for promotions, opportunities to take promotional exams, and a workplace free from retaliation. He also asserted that City assigned him "minuscule" job duties.
B. City's Motion for Summary Judgment
On March 8, 2021, City moved for summary judgment, or in the alternative, summary adjudication. It argued it had legitimate, non-retaliatory reasons for its employment actions, including that Kazandjian was not the best candidate for the positions at issue and that he was not qualified to sit for the civil service exams in question. City further argued Kazandjian could not demonstrate the reasons for its decisions were pretextual.
In support of its motion, City submitted the declarations of multiple city personnel, including Regina Hernandez, Jeanne Holm, Roger Fernandez, and Leonard Torres. City also submitted documentary evidence, including interviewer notes evaluating Kazandjian and other candidates.
In opposition, Kazandjian argued he had adduced evidence sufficient to create a triable issue that City's alleged non- retaliatory reasons for its actions were pretextual. He claimed he performed his job in an exemplary fashion and was qualified for promotion to a SSA II position. He argued Hernandez, Torres, Holm, and Fernandez were the decision makers in the adverse employment actions and knew about his prior lawsuit. Further, even if some decision makers were not aware of his prior lawsuit, Kazandjian contended those decision makers relied on information provided to them by individuals who harbored retaliatory animus against him. Kazandjian argued that in addition to unfairly denying him promotions or opportunities to sit for civil service exams, City failed to provide him with current performance evaluations, which destroyed his ability to get promoted.
In support of his opposition, Kazandjian submitted, among other documents, his declaration, letters of recommendation, an April 30, 2014 performance evaluation, excerpts from City's discovery responses, correspondence, ITA's policies concerning annual performance evaluations and pay grade assignments, and deposition excerpts from multiple witnesses.
We summarize the evidence adduced by both parties relevant to the specific alleged adverse employment actions that Kazandjian raises on appeal, which are: (1) ITA did not select him for a SSA II position in September 2017; (2) ITA canceled an August 2, 2018 SSA II position posting after receiving Kazandjian's application; (3) ITA did not select him for a SSA II position posted on October 18, 2018; (4) ITA did not select him for a SSA II position posted on November 27, 2018; (5) City did not provide Kazandjian with performance evaluations after he filed his prior lawsuit; (6) the Los Angeles Police Department (LAPD) did not select him for a SSA II position for which he interviewed on November 18, 2016; (7) LAPD did not select him for a SSA II position for which he interviewed on January 12, 2018; (8) LAPD did not select him for a SSA II position for which he interviewed on September 5, 2018; (9) Los Angeles World Airports (LAWA) did not selected him for a SSA II position in 2016; (10) City did not permit him to take the director of systems exam in May 2017; (11) City did not permit him to take the information systems manager exam in October 2017; and (12) City assigned clerical tasks to Kazandjian.
Kazandjian's discovery requests contend LAPD interviewed him for this position "on or about December 29, 2016" (bold omitted), but there is no evidence that Kazandjian interviewed with LAPD in December 2016. Thus, we use the November 2016 date.
1. Hernandez's, Ross's and Holm's Knowledge of Kazandjian's Lawsuit and Involvement in Hiring, Promotions, and Civil Service Exams
Between 2012 and 2020, Hernandez worked in City's personnel department. In 2018, she was promoted to personnel director and managed human resources for ITA. Hernandez learned of Kazandjian's 2015 lawsuit when the City Attorney's office notified her of the settlement.
Hernandez did not interview candidates or play any role in deciding which candidate to recommend for hire or promotion. Her duties included assisting with and overseeing the process of advertising promotional and transfer opportunities within ITA, collecting applications, scheduling interviews, collecting interview and test materials after interviews, communicating the interviewers' recommendations to the ITA assistant general manager and general manager, and reviewing interview questions and supplemental questionnaires to ensure they complied with the law and City policies. During her deposition, Hernandez acknowledged her involvement included reviewing the final selection package, prepared by her staff, and signing off on it.
Ted Ross became ITA general manager in August 2015 and learned of Kazandjian's lawsuit at that time. Ross was friendly with Kazandjian and encouraged him to apply for promotional positions, just as he would have done for any employee. Other than Kazandjian, no one ever contacted Ross to discuss any of Kazandjian's applications.
Holm, who served as an ITA assistant general manager between April 2016 and May 2020, met weekly with Hernandez. Hernandez told Holm that Kazandjian's lawsuit against City had been resolved. Holm testified that the personnel department "deals with" available positions within the ITA. Ruben Vasquez was the former personnel director for ITA and responsible for those positions until 2017, when Hernandez assumed responsibility for them.
Hernandez explained that after interviewers recommend a candidate for a position within ITA, the ITA general manager must approve or reject the interviewer's recommendation. Ross and Holm declared, and Kazandjian did not dispute, that as general manager and assistant general manager their only role in filling vacant SSA II positions was to either reject or approve the interviewers' recommended candidate. According to Ross and Hernandez, Ross frequently delegated this role to an assistant general manager, and he did not recall interviewers ever presenting Kazandjian as a candidate recommended for hire. Ross and Hernandez declared that in their experience, Ross or the assistant general manager "almost always approved" the interviewers' recommended candidate. It is undisputed that it would be unusual for the general manager or assistant general manager to reject the interviewers' recommended candidate.
ITA's policy concerning pay grade assignments corroborated Hernandez's description of the hiring process. It stated, "The [p]ersonnel and [e]mployee [r]elations [d]ivision shall have the responsibility for the overall supervision and administration of pay grade assignment procedures." "The selection panel shall recommend to the [g]eneral [m]anager the appointment of one candidate for each vacant position. The [g]eneral [m]anager or [e]xecutive [o]fficer shall approve the final selection." Further, the selection panel may require candidates to submit written materials. Nothing in the record indicates this ITA policy applied to LAPD or LAWA.
Neither Hernandez, Ross, nor Holm knew that Kazandjian applied for positions outside ITA, and none of them were involved in LAPD or LAWA job opportunities. Ross and Holm did not discuss Kazandjian with anyone from LAPD or LAWA, and no one contacted Hernandez about any position Kazandjian applied for outside of ITA. Neither Hernandez, Ross, nor Holm was involved in determining whether Kazandjian met the minimum qualifications to take civil service exams.
2. Fernandez
Between 2008 and 2011, Fernandez supervised Kazandjian. Since 2016, Fernandez served as a director of systems for ITA. Fernandez and Kazandjian are also friends, and Fernandez was aware of Kazandjian's prior lawsuit. In 2016 or 2017, Kazandjian informed Fernandez that he had resolved his prior lawsuit.
Fernandez never discussed Kazandjian's 2015 lawsuit with Hernandez, Ross, or Holm, and only mentioned it to Vasquez when informing Vasquez that Fernandez would be deposed in that matter.
Fernandez was unable to testify whether Kazandjian was qualified for promotion from SSA I to SSA II, because he "would have to see the specific group['s SSA II requirements] because different groups have different requirements." Fernandez was the hiring manager within the customer service and support division of the ITA (customer service division) and interviewed Kazandjian for a position in that division posted on November 27, 2018. According to Fernandez, the personnel department's role in selecting a person to promote from a SSA I to II is to "provide guidance on the procedures," while the final decision rested with the assistant general manager or general manager. Fernandez did not know whether Hernandez ever sat on an interview panel relating to an open SSA II position. Fernandez only had one position open, and Hernandez was not part of the interview panel.
3. Kazandjian's Work and Performance Evaluations
Between December 2008 and July 2010, Kazandjian worked as a project manager on a portfolio management system for ITA. Several letters of recommendation lauded Kazandjian's abilities and work on the project, including one that acknowledged Kazandjian "worked in the capacity of" a SSA II and that "budgetary constraints precluded advancement of his position."
The record includes three letters of recommendation for Kazandjian's work between 2011 and 2013. One letter dated May 24, 2012, said Kazandjian "meticulously performed duties extending far above and beyond those specified in his current classification," and that "[b]udgetary circumstances . . . unfortunately hindered his promotional pace." The other two letters came from Fernandez, dated August 12, 2011 and October 1, 2013. The letters referred to Kazandjian's work as the project manager of a $10 million project (which we refer to as BTOP); they touted his poise, efficient and effective interpersonal and communication skills, intelligence, and abilities to quickly learn, work well under pressure, and produce a high volume of work while maintaining high standards. Fernandez explained that "[f]or the last 40 months," Kazandjian "worked easily at the capacity of a [SSA] II," and "led high ranking employees on his project team," which was "a true testament to his extraordinary leadership and project management skills." The October 1, 2013 letter described the BTOP project as "recently completed."
On June 28, 2013, City adopted a resolution in appreciation for Kazandjian's leadership and dedication for his successful completion of the BTOP project on time and on budget.
In April 2014, Kazandjian received a performance evaluation for the rating period July 1, 2013 through April 30, 2014. He was evaluated mainly as "meets standards," meaning he consistently performed at a satisfactory level. Kazandjian refused to sign the evaluation.
Although the evaluation referred to Kazandjian's work "re-arranging the folder structure for storing BTOP . . . records," it did not refer to his work completed in mid-2013 as a BTOP project manager.
Kazandjian declared he did not receive a performance evaluation after the 2014 evaluation, and that the "lack of current performance evaluations . . . hindered [his] ability to promote within the City."
City policy requires full-time employees to receive annual performance evaluations. Vasquez testified, "In theory, employees are supposed to be evaluated once a year, but that doesn't always happen" as "some supervisors [were] a little lax, and some supervisors [were] very good and they completed the chore. Some . . . didn't."
ITA's policy in this regard states, "All full-time employees are to receive an annual performance evaluation (referred to in City regulations as a service rating)." Fernandez testified that not providing annual performance evaluations violated City policy.
Ross testified that when he became general manager, he requested performance evaluations be performed annually. However, "each year, there [was] a percentage of employees who [did] not have performance evaluations." There is no specific evidence in the record concerning annual performance evaluations for any employee other than Kazandjian or any evidence of how often Kazandjian received performance evaluations prior to 2014.
Vasquez testified that ITA interviewers do not rely on a candidate's performance evaluation when deciding whether to select a candidate for a position. Interviewers are to evaluate the candidates based solely on the questions and rating criteria. Interviewers do not have access to the candidates' personnel files and are not provided with such files.
William Wnuck served as a senior communications engineer between 2007 and May 2017, when he retired. Beginning in 2015, Kazandjian reported directly to Wnuck, and Kazandjian's job duties included supporting training requirements for the division, which was comprised of approximately 90 people. Wnuck believed Kazandjian performed his job "[v]ery well" and that he was qualified to perform the duties of a SSA II. He attempted to give Kazandjian a "good rating" on a performance evaluation. Before Wnuck could provide an evaluation, however, ITA procedure required another supervisor to sign the evaluation. ITA director Greg Steinmehl declined to sign and gave Wnuck the impression the evaluation "was too positive." After a week and some prodding, Steinmehl returned two out of three employee evaluations to Wnuck but did not return the evaluation concerning Kazandjian. Wnuck did not testify whether the other two employee evaluations were positive.
According to Kazandjian, after his 2015 lawsuit settled, Ross arranged a meeting between Kazandjian and Holm. Holm offered Kazandjian a project manager role for a broadband connectivity-digital inclusion project. William Imperial supervised Kazandjian on this project. Kazandjian claims that soon after beginning the project, he realized he was being assigned clerical tasks instead of project manager duties. Kazandjian complained, "but [his] complaint was determined to be unfounded." Kazandjian asserted that Imperial bullied him and that City ignored Kazandjian's complaints about this bullying.
Holm testified that she discussed with Kazandjian his participation in the broadband connectivity-digital inclusion project. She expected that for that project, he would produce website content concerning opportunities for people to get lowcost internet, do research, attend and contribute to meetings, write and collect documentation as needed, and bring his expertise from his prior work to "thoughtfully contribute to how we could improve digital inclusion in Los Angeles." She did not recall Kazandjian telling her that Imperial was bullying him. If he had, she would have spoken to Hernandez and Ross about it. Holm did speak with them about Kazandjian's concern that he was being given clerical work and that Kazandjian did not want to report to Imperial. She knew an investigation into Imperial bullying Kazandjian had been opened because she was interviewed for it.
Imperial testified that he supervised Kazandjian for three months. Imperial was out of the office "for a while." When he returned, Imperial learned that Kazandjian did not want to work with him. Holm, Imperial's boss, took over supervising Kazandjian. Imperial further testified that although Kazandjian was assigned a title of "project manager," "being called project manager just meant that you assisted whatever the project needed."
4. ITA Promotional or Transfer Positions
a. September 2017 SSA II
On August 24, 2017, City's personnel department requested advertisement of a transfer opportunity for a SSA II. The advertisement stated, "The [ITA] has a [t]ransfer [o]pportunity for [SSA] II for the [i]nformation [s]ecurity [o]ffice."
At his deposition, Kazandjian confirmed this was a transfer position, meaning a person who already held a SSA II classification could transfer to the posted position. He further acknowledged he was not a SSA II, but believed he was qualified for the position because he "worked in the capacity" of a SSA II, and Ross and ITA chief information security officer Timothy Lee encouraged Kazandjian to apply for the position when he expressed interest in it. Kazandjian did not know whether Timothy Lee knew that Kazandjian was a SSA I at the time. Kazandjian declared no one ever told him he was unqualified for the position, and he was never contacted about or interviewed for it.
In discovery responses dated April 2, 2020, City explained Kazandjian was not selected for the position because he did not meet the requirements. On July 17, 2020, City issued supplemental responses in which it stated Kazandjian was not selected for the position because he did not submit his resume for consideration. However, a contemporaneous City email confirmed receipt of Kazandjian's resume for the position. Hernandez acknowledged at her deposition that based on the email, Kazandjian submitted his resume for the position and the discovery response stating otherwise was inaccurate. On December 2, 2020, City served supplemental responses in which it stated Kazandjian was not qualified for the position, which was a transfer opportunity for persons who were already SSA IIs.
b. August 2, 2018 SSA II and November 27, 2018 SSA II Positions
On August 2, 2018, City posted a promotional opportunity to SSA II within the customer service division. The posting required applicants to answer a supplemental questionnaire.
Prior to that posting, on July 31, 2018, Hernandez sent an email to, among others, Fernandez, who would be the hiring manager for the position. She stated, "I do not see a problem with the [s]upplemental [q]uestionnaire that will be sent to the eligibles .... [¶] I . . ., however, would like to make the following recommendations: [¶] 1) Because you currently have employees in the class of [SSA] (I know of one in particular), I think that the position should also be open as a transfer and/or paygrade advancement opportunity to these employees . . . [who] will also be subject to the same requirement of completing the supplemental questionnaire, and participating in the competitive interview process, the same way the eligible list candidates would. [¶] 2) In order to reduce if not eliminate the perception of bias, I also would recommend using an outside rater . . . who can provide a fair assessment of each candidate's qualifications and/or skills set, and assist in selecting not only the most qualified candidate, but the best fit for the position. [¶] You have the discretion to agree or disagree with the recommendations. I do believe, however, that we have to be careful in handling this package, as this could potentially result in a discrimination complaint." Fernandez forwarded the email to Kazandjian.
Fernandez shared this email with Kazandjian because he believed the parenthetical "I know of one in particular" referred to Kazandjian. Fernandez also testified that he sent the email because he felt his supervisor, Holm (but no one else), was trying to force him to hire someone other than the person he would ultimately want to hire. Prior to this testimony, Fernandez testified, "at one point, they were trying to force me to hire females." Counsel then asked Fernandez, "You felt as though you wanted to share this e-mail with Mr. Kazandjian because you felt, at that time, you were being forced to select candidates other than Mr. Kazandjian; correct?" Fernandez responded, "Correct." In his declaration, Fernandez stated that before accepting applications for the position, he felt pressure from Holm to recommend a woman for the position. Ultimately, however, he recommended a man other than Kazandjian because that person was the best qualified candidate, and Holm accepted his recommendation. Fernandez stated he "never felt pressure from anyone in ITA or outside of ITA[ ] to specifically not recommend . . . Kazandjian for the [position]."
According to Fernandez, he prepared "the entire contents" of the supplemental questionnaire to elicit information relevant to the position. Fernandez acknowledged the personnel department suggested use of a supplemental questionnaire and that he and Hernandez were "responsible for preparing" it. Fernandez observed that in his experience, such questionnaires were commonly used for this purpose, "[a]lmost every single time," and provided important information from candidates. Fernandez testified the questions "related to the daily job functions of the position." He did not prepare the questionnaire to harm Kazandjian. Out of the four people who interviewed for the position, three of them "met all the requirements [of the] supplemental questionnaire."
During her deposition, Hernandez did not recall whether the parenthetical phrase "I know of one in particular" referred to Kazandjian. She further testified that her caution that they "have to be careful in handling this package as this could potentially result in a discrimination complaint" was "a normal precautionary recommendation that [she] usually make[s] to managers." Hernandez confirmed that prior to her July 31, 2018 email, the position was only available to "individuals [on] the eligibility list" "at the request of the hiring manager," and that "there [were] times where [human resources] would make a recommendation to use both the eligible list and also open it up to other employees within the [d]epartment who could apply as a transfer candidate or a paygrade advancement opportunity." Whether to include a supplemental questionnaire was a joint decision between human resources and Fernandez.
On September 21, 2018, Susan Bautista emailed Kazandjian to inform him that City cancelled the request to fill the SSA II vacancy. Bautista noted that City was "looking into reviewing the current position to see if the duties are properly allocated to the right job class" and "[u]ntil we reach a determination, the position will not be filled."
A few months later, on November 27, 2018, ITA again posted the promotional opportunity to a SSA II position within the customer service division, open to all SSA I's. The posting was nearly identical to the August 2, 2018 posting, and again required applicants to answer a three-question supplemental questionnaire. Kazandjian did not submit responses to the supplemental questionnaire.
In his declaration, Kazandjian opined the "supplemental questionnaire required [him] to possess very specific experience despite such experience not being necessary for the subject SSA II position." He further declared he was qualified for the position and felt the "questionnaire was prepared to ensure that [he] lacked the required experience for this position." The trial court sustained City's objections to these statements, and Kazandjian does not challenge this ruling on appeal.
Fernandez interviewed Kazandjian nonetheless, in early December 2018; James Lee also participated in the interview. Fernandez gave Kazandjian a final rating of 70 out of 100, and James Lee gave him a rating of 72. They each determined Kazandjian lacked the skills and experience to make him a strong candidate for the position. Fernandez declared that neither his knowledge of Kazandjian's lawsuit nor his friendship with Kazandjian affected his evaluation. As for James Lee, at no time prior to filling the position did he know that Kazandjian had a prior lawsuit against City or any work issues. No one contacted James Lee about Kazandjian. Fernandez and James Lee declared that they each based their rating of Kazandjian on his application and interview, and that no one attempted to influence their evaluations of Kazandjian for the position.
Fernandez and James Lee also interviewed three other applicants. One ranked lower than Kazandjian, but two ranked higher. The applicant to whom City offered the position had the highest final average score of 90.5. Fernandez's signed notes dated December 10, 2018, indicate that, among other things, the top-rated applicant had 15 years of experience supervising 13 employees, supported nine departments, and demonstrated excellent experience and knowledge in desktops, software, data storage, and print and mobile devices. In comparison, Kazandjian did not supervise any employees, although he supervised eight employees at a training center 12 years ago, and demonstrated some experience and understanding of desktops, software, data storage, and print and mobile devices.
Hernandez confirmed the person selected for this position was not a SSA I at the time. Holm approved the selection of the top-rated candidate for hire. Fernandez discussed his recommendation for the position with Holm, but they did not discuss Kazandjian's prior lawsuit, his grievance, or any work issues concerning Kazandjian.
Fernandez testified that the personnel department's involvement with respect to this position was to "guid[e] [him] through the process," which included working with him and James Lee to prepare 10 to 12 interview questions. Fernandez further testified that Kazandjian was not the best candidate. Fernandez may have told Kazandjian that his hands were tied, and meant by that that Fernandez was not the one making the decision because his involvement was only to score interviewees.
City's April 2, 2020 discovery responses listed Hernandez as a person who participated in making the decision to not select Kazandjian for this position. The term "participated" was not defined. Hernandez did not disclaim that she participated in the hiring process but testified that she did not provide any input into who would be hired for this position.
By a letter dated December 12, 2018, Hernandez informed Kazandjian he was not selected for an unspecified SSA II position within ITA. She stated, "Although the selection board was impressed with your experience and training, there were other candidates who had qualifications more specifically suited for the position."
On February 8, 2019, Kazandjian emailed Hernandez "to memorialize" that he was not selected "due to continued retaliation that [he has] been subjected to by the City since filing [his] FEHA action." He claimed the supplemental questions, interview, and selection process were "rigged and unfair." He claimed no one contacted him about this complaint.
During her deposition, Hernandez did not recall whether any action was taken in response to Kazandjian's allegation of retaliation; she testified that she might have had a conversation with Bautista to look into it. Hernandez observed the email referred to a FEHA complaint and that, "Once there is a filing with FEHA, we don't normally investigate it unless the employee files a formal complaint with [human resources] . . ., and to my knowledge, I don't think [Kazandjian] filed a formal complaint."When asked whether she agreed it would violate the City's policies if she "took no action whatsoever after being notified of an employee's complaint of discrimination and retaliation," Hernandez responded, "I believe so."
There is no evidence in the record contradicting Hernandez's testimony concerning City's practices with respect to requiring a formal complaint with human resources after a FEHA complaint is filed.
c. October 18, 2018 SSA II
On October 18, 2018, ITA posted a promotional opportunity with the information security office open to all SSA I's. The position required the person hired to, among other things, develop and maintain information security policies and standards. Kazandjian declared he was "more than qualified" for the October 18, 2018 ITA SSA II position. The trial court sustained City's objection to this bald assertion, and Kazandjian does not challenge this ruling on appeal.
On November 7, 2018, Timothy Lee and Port of Los Angeles chief information security officer Tony Zhong interviewed Kazandjian for the position. They also interviewed two other candidates. They gave Kazandjian a final average score of 41 and the two other applicants final average scores of 44 and 60. They observed Kazandjian "lacked the information security skills and experience to make him a strong candidate for th[e] position." Timothy Lee also noted Kazandjian did not have experience with security breaches. Timothy Lee and Zhong did not recommend any of the candidates for the position.
It is undisputed that at no time prior to conclusion of the selection process did Timothy Lee or Zhong know that Kazandjian had filed or settled a lawsuit against City or that he had any alleged work issues. Nor did anyone attempt to influence Timothy Lee's or Zhong's evaluations of Kazandjian. Rather, their ratings of Kazandjian were based solely on his application and interview.
On April 2, 2020, City served responses to discovery in which Kazandjian asked for the name of each person "who participated in making" this hiring decision. City listed Timothy Lee, Zhong, and Hernandez. Hernandez testified that she did not provide any input into who would be hired for this position.
5. Positions with LAPD a. Kazandjian's Evidence that Hernandez "Participated" in LAPD Hiring Decisions
In its April 2, 2020 discovery responses, City identified Hernandez as a person "who participated in making" alleged adverse employment decisions that LAPD not hire Kazandjian in November 2016 and January 2018, but not September 2018. On September 9, 2020, City provided amended responses, removing Hernandez as a person who participated in LAPD's decisions to not hire Kazandjian. Hernandez verified the April 2, 2020, and amended September 9, 2020, discovery responses on the same day, August 27, 2020.
Kazandjian refers to this interview as occurring "on or about December 29, 2016." (See fn. 1, ante.)
b. November 18, 2016 SSA II Position
On November 18, 2016, LAPD employees Jeffrey Jantz and Kathy Takahata interviewed Kazandjian and another candidate for a SSA II position. Prior to the interview, Jantz had never met Kazandjian, nor had he heard anything about him. Takahata knew Kazandjian as a colleague from when she worked at ITA in 2001 through 2011, but she never worked with him. Neither Jantz nor Takahata knew that Kazandjian had sued City. Based solely on Kazandjian's application and interview, Jantz rated him 1.5 out of 3 and Takahata rated him 1. They interviewed another candidate that same day, who Jantz rated a "2+" and Takahata rated 2. They recommended the other candidate for hire.
c. January 12, 2018 SSA II Position
On January 12, 2018, LAPD employees Takahata and Karen Bottancino interviewed Kazandjian for a SSA II position. Bottancino had never met Kazandjian prior to the interview, had never spoken to anyone about him or heard anything about him, and was not aware that he had filed a lawsuit against City. Takahata also still did not know of Kazandjian's prior lawsuit, nor did anyone other than Bottancino discuss Kazandjian with her or attempt to influence her rating of Kazandjian. Based solely on his application and interview, Takahata rated Kazandjian 1 out of 3, and Bottancino rated him 1.5.
Bottancino commented on her interview worksheet that Kazandjian was "unable to provide solid project management methodologies" and that his "[p]erformance eval[uation] indicates the level of responsibilities differ from that expressed during the interview." Bottancino testified that typically LAPD administrative staff asks interviewees for their application and most recent performance evaluations, which are then provided to interviewers to review as part of the interview process. Bottancino considered performance evaluations to be part of the application. She explained that the application includes a section where applicants can describe their job duties and some applicants list jobs that cover a span of 10 years while others attach resumes. Bottancino also testified that she would take into consideration the date of the performance evaluation in relation to the interview date. She would not give much weight to a performance evaluation that was dated three to four years prior to the interview. If the candidate told her that since the performance review the candidate has had other experience, she would take their word for it.
Bottancino commented on her worksheet that the other candidate had "project [management] experience spanning [three] different entities .... Communicated a thorough knowledge of project [management] methodology as well as supervis[ory] experience." Takahata and Bottancino each rated the candidate 2 out of 3 and recommended the higher-rated candidate for hire.
d. September 5, 2018 SSA II Position
On September 5, 2018, Bottancino interviewed Kazandjian for another SSA II position. She gave him a "1" or "satisfactory" rating. She did not discuss Kazandjian with anyone other than the other interviewer, LAPD employee Monique Turner, and no one attempted to influence her evaluation of Kazandjian. Bottancino rated Kazandjian solely on his application and interview. Turner gave Kazandjian a final rating of "1," which she based solely on his application and interview. Both Bottancino and Turner interviewed another applicant for the position and rated that applicant a "3" or "outstanding." They recommended the higher-rated candidate for the position. It is undisputed that at no time prior to the position being filled were Bottancino or Turner aware of Kazandjian's lawsuit.
6. Civil Service Exams
In 2017, Torres worked for City's personnel department, employment services section. His duties included a second-level review of applicants' qualifications to take civil service exams. Torres's supervisor at the time, Janell Ishii Hata, reviewed employee appeals of decisions barring them from taking the exams. Both Ishii Hata and Torres knew Kazandjian had previously filed a lawsuit against City because they had gathered documents for the lawsuit. Each declared, however, that this did not affect their review of Kazandjian's exam applications or his appeals relating thereto. Neither knew about or were involved in evaluating Kazandjian's applications for SSA II positions with ITA or in any other City agency.
a. 2017 Director of Systems Exam
The bulletin posting the director of systems position and exam required applicants to have two years' experience as a SSA II. Experience as a SSA I was "nonqualifying." On May 24, 2017, City denied Kazandjian's application to take the exam because, according to Ishii Hata, his "application did not indicate sufficient experience as a [SSA] II level as required."
According to Fernandez, in 2013 and 2014, he signed work verification forms for Kazandjian at Kazandjian's request. Fernandez understood that Kazandjian needed these forms to show that he had performed work at a SSA II level so that he could qualify for the director of systems and information systems manager civil service exams. The April 11, 2013 verification for the director of services exam stated that Kazandjian had "managed, planned, directed, and reviewed work of professional technical staff which included [SSA] II's" and had "[a]pplied sound supervisory techniques." Torres declared, and Kazandjian did not dispute, that the 2013 verification form did not specifically state that Kazandjian had two years' work experience at a SSA II level.
Fernandez believed Kazandjian was qualified to take the director of systems exam as he had performed many duties under Fernandez's purview for two to three years at the SSA II level. He found it odd that Kazandjian was denied the opportunity to take the director of systems exam in May 2017, despite the fact that Fernandez provided him with a verification form in 2013. Fernandez said that in May 2017, Torres called him "to persuade [him] [to] chang[e] [the] verification form." Fernandez believed Torres was "targeting" Kazandjian, but never formed an opinion as to the reason why. Fernandez played no other role in determining whether Kazandjian met the minimum qualifications to take the two civil service exams.
Torres testified that he contacted Kazandjian (as was customary) to let him know that he did not qualify to take the director of systems exam. Torres did not recall speaking to Holm, Hernandez, Bautista, or Ross about Kazandjian other than in an effort to try to reach Kazandjian.
Kazandjian appealed the denial. Torres's custom was to investigate such appeals and discuss his recommendation with Ishii Hata. Personnel department assistant general manager Raul Lemus, who made the final decision concerning such appeals, asked Torres to speak with Fernandez. During his conversation with Fernandez, Torres did not try to convince Fernandez to change his verification, and Fernandez confirmed that Kazandjian had performed work at the SSA II level for at least two years.
Based on the information Fernandez provided, Lemus determined Kazandjian should be permitted to take the director of systems exam. Kazandjian sat for the exam. It is undisputed that 35 people scored higher than Kazandjian on the exam, and thus would "be considered first" ahead of him to fill director of systems positions.
b. 2017 Information Systems Manager Exam
The September 1, 2017 bulletin for the information systems manager exam stated that the minimum qualifications included, "[t]wo years of full-time paid supervisory experience in a position at the level of . . . [SSA] II which provides experience in the analysis, design, implementation, operation or maintenance of computer based information systems, network, and computerized data and/or software."
The July 31, 2014 verification form, relating to the information systems manager exam and executed by Fernandez, described Kazandjian's duties between January 2010 and December 2014 as, "$10 [m]illion [d]ollar [b]udget [p]roject [m]anager with [10] or [m]ore [p]roject [s]taff." Fernandez observed that when he filled out the form in 2014, Kazandjian had been permitted to take the information systems manager exam, but after his lawsuit, in October 2017, he was not. Fernandez conceded, however, that to his knowledge, Kazandjian "never supervised any other employees[,] meaning, he has never assigned and reviewed work of other employees, approved vacation o[r] sick time . . ., completed and signed employee evaluations, or acted as the first level of review in a grievance brought by an employee."
In an unsigned letter dated October 20, 2017, City denied Kazandjian's application to take the exam because "[a]lthough we have documentation indicating you have performed at the level of [SSA] II for a certain period of time in the past, this experience was not as a supervisor. This examination's requirement specifies that any qualifying experience must include supervising employees while at the appropriate level of [SSA] II. [¶] To the City's standard, a 'full-time supervisor' performs the full range of supervisory duties, which include assigning and reviewing work, approving vacation and sick time, completing and signing employee evaluations, and serving as the first level of review in the grievance process." The letter also stated City's decision to permit Kazandjian to take the exam in 2014 was an error.
According to Ishii Hata, after reviewing Kazandjian's application and appeal to take the exam, the denial was sustained. In a letter dated October 27, 2017, City explained, "Although a [v]erification of [w]ork [e]xperience (VWE) form was approved for verifying your experience working at a higher pay grade while employed as a [SSA] I, this VWE (and subsequent discussion with the supervisor who signed it) does not indicate you were a supervisor during" the period January 2010 to December 2014. The letter further provided that Kazandjian's documentation submitted in support of his claim that he worked in a supervisory capacity between 1999 and 2006 did not indicate it was as a SSA II, and City had made the same finding based upon this documentation in determining he could not sit for the exam on March 21, 2008 and May 5, 2008.
On October 27, 2017, Kazandjian emailed Ishii Hata about City's denial to allow him to take the information systems manager exam. Kazandjian stated that project managers are sometimes not given the choice or opportunity to "supervise" and instead must "lead and delegate." He also stated that he was a full-time supervisor on a prior project and that "I included a letter of recommendation stating that I have performed at a [SSA II] capacity with full-time supervisory experience," which included "assigning and reviewing work, approving vacation and sick time, completing and signing employee evaluations, and serving as the first level of review in the grievance process." Kazandjian did not identify this letter by author or date. He further stated he had been "subjected to [d]isability and [California Family Rights Act/Family and Medical Leave Act-]based [h]arassment, [d]iscrimination and [r]etaliation[ ] by the executive recruitment division. I believe this is retaliation for my past complaints ...."
On November 7, 2017, Ishii Hata responded to Kazandjian's letter. She explained, "During our review for the [d]irector of [s]ystems appeal, we contacted Mr. Fernandez who confirmed that [your duties between January 2010 to December 2014] did not include supervisory experience." Further, the letter of recommendation to which Kazandjian referred discussed his supervisory role performed at a level of SSA I and not at the level of SSA II, as required to take the information systems manager exam.
7. Alleged Adverse Employment Actions Not Specifically Identified in Kazandjian's Discovery Responses
In response to interrogatories asking for all facts that Kazandjian was denied various promotions and for him to list all adverse employment actions, Kazandjian responded that he was denied a "LAWA [SSA] II paygrade advancement position for which [he] interviewed for on or about February 12, 2019," but did not identify any position with LAWA that he pursued in 2016. Nor did Kazandjian state that he had not been provided with annual performance evaluations or assigned to clerical work. City did not raise these adverse employment actions in its motion or adduce evidence specifically to address them.
Facts in the record relating to City's failure to provide performance evaluations and Kazandjian's assignment to clerical work have been summarized above. Evidence relating to the 2016 LAWA SSA II position is summarized below.
Kazandjian states in his declaration that he interviewed with LAWA for a SSA II position "[s]ometime in 2016." On January 18, 2018, a LAWA senior business analyst emailed Kazandjian to inform him that LAWA would start hiring for SSA II positions "again." The sender also stated, "I know you had interviewed for that [SSA] II position here a few years back. It was pretty common knowledge that the position was yours so everyone was confused when you didn't accept it. What happened?" City objected to the business analyst's January 18, 2018 email; the trial court sustained the evidentiary objection, and Kazandjian does not challenge this ruling on appeal.
C. The Trial Court's Ruling
The trial court found City had produced evidence of legitimate, nonretaliatory reasons for its decision to not hire or promote Kazandjian, and that Kazandjian failed to demonstrate a factual dispute of retaliatory intent. The court further found City's failure to provide recent performance evaluations did not constitute an adverse employment action, and even if it did, Kazandjian did not demonstrate a causal link between that failure and his prior lawsuit. As to the 2017 director of service exam, the court found that because Kazandjian had the ability to contest and correct this issue through City's internal grievance procedures that action did not ripen into an adverse employment action. As to the 2017 information systems manager exam, the court rejected Kazandjian's argument that Torres acted out of retaliatory intent in preventing him from taking that exam because Kazandjian did not adduce evidence of such intent or that Torres was the one who prevented Kazandjian from ultimately taking the exam.
The trial court also granted summary judgment as to Kazandjian's Labor Code section 1102.5 claim finding that he failed to show retaliatory animus was a" 'contributing factor'" to the employment-related decisions at issue and observed Kazandjian's showing rested on speculation.
City made 26 evidentiary objections to Kazandjian's declaration. The trial court overruled 15 of those objections and sustained 11 of them. The trial court entered judgment in favor of City. Kazandjian timely appealed.
DISCUSSION
A. Legal Principles
1. General Summary Judgment Framework and Standard of Review
A trial court properly grants a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) "An issue of fact can only be created by a conflict of evidence. It is not created by 'speculation, conjecture, imagination or guess work.' [Citation.] Further, an issue of fact is not raised by 'cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation]. 'Thus, while the court in determining a motion for summary judgment does not "try" the case, the court is bound to consider the competency of the evidence presented.' [Citation.]" (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.)
We review the trial court's summary judgment ruling de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) We liberally construe the evidentiary submission of the party opposing summary judgment while strictly scrutinizing the moving party's showing and resolve any evidentiary doubts or ambiguities in the opposing party's favor. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083.)
2. Standard and Burdens for FEHA Retaliation Claims Government Code section 12940, subdivision (h) prohibits employer retaliation against an employee who engages in certain protected activity. California courts employ the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] to FEHA-based retaliation claims. (See Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) This test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354.)
Under this test, the plaintiff must first establish a prima facie case of retaliation. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) To do so, the" 'plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.' [Citation.]" (Ibid.) If the plaintiff makes this showing, the burden shifts to the employer to provide evidence of a "legitimate, nonretaliatory reason for the adverse employment action." (Ibid.) If the employer does so," 'the presumption of retaliation"' "drops out of the picture," '"' [citation]" (ibid.), and the plaintiff must "raise a triable issue of fact regarding intentional retaliation" by "offer[ing] evidence sufficient to allow a trier of fact to find either the . . . stated reasons were pretextual or the circumstances' "as a whole support[ ] a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus."' [Citation.]" (Light v. Department of Parks &Recreation (2017) 14 Cal.App.5th 75, 94.) "[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 [or retaliatory]." (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 361, fn. omitted.)
In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, our Supreme Court held a FEHA" 'plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision.'" (Id. at p. 232.)
We have previously articulated the order of the McDonnell Douglas burdens in the summary judgment context as somewhat reversed. (See Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344.) Specifically,"' "[i]f the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing." '" (Ibid., italics omitted.)
3. Standards and Burdens for Labor Code Section 1102.5 Retaliation Claims
Labor Code section 1102.5, subdivision (b) states, "An employer . . . shall not retaliate against an employee for disclosing information . . . to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties."
Causes of action under Labor Code section 1102.5 are subject not to the McDonnell Douglas framework, but to a two-step framework set forth in Labor Code section 1102.6. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707.) Under that framework, "[f]irst, it must be 'demonstrated by a preponderance of the evidence' that the employee's protected whistleblowing was a 'contributing factor' to an adverse employment action. [Citation.] Then, once the employee has made that necessary threshold showing, the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities." (Id. at p. 712, quoting Lab. Code, § 1102.6.)
B. Analysis
Kazandjian pleaded the same alleged adverse employment actions under both his first cause of action for retaliation under FEHA and second cause of action for retaliation under Labor Code section 1102.5. Thus, we consider the alleged adverse employment actions under both statutes.
1. LAWA's 2016 Decision Not to Hire Kazandjian
Kazandjian's claim that he interviewed for a SSA II position with LAWA in 2016 and was not selected is insufficient to establish a prima facie showing of retaliation. There is no evidence indicating who interviewed him, who was responsible for selecting a candidate, whether these persons knew of his 2015 lawsuit, what qualifications were required for the position, who else interviewed for the position, or why Kazandjian was not selected. Accordingly, to conclude Kazandjian was not given this job in retaliation for his 2015 lawsuit would be entirely speculative. (E.g., Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 429 [affirming summary judgment where there was no evidence that anyone involved in the adverse employment decision knew about the plaintiff's complaint or that it factored into their determination].) There was no triable issue of fact as to this alleged adverse employment action.
2. ITA Positions a. September 2017 SSA II Position
City adduced evidence that it did not select Kazandjian for the September 2017 SSA II position because it was a transfer position open only to persons who were already classified as SSA IIs. Kazandjian conceded that the position was a transfer opportunity for current SSA IIs, meaning that it was only open to persons in that class, and that he was not classified as a SSA II.
Kazandjian nevertheless suggests the jury can infer retaliatory animus in his non-selection for this position because (1) Hernandez knew of the 2015 lawsuit and (2) City changed its reason why it did not select him for this position in its discovery responses. As stated above, City first stated Kazandjian was not selected because he did not meet the requirements for the position, then stated he was not selected because he did not submit his resume for consideration, and then reverted to stating Kazandjian was not qualified for the position because he was not a SSA II.
In Guz v. Bechtel National Inc., supra, 24 Cal.4th 317, our Supreme Court acknowledged that "[p]roof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons" (id. at p. 361) and that "an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions" (id. at p. 363). However, "summary judgment for the employer may . . . be appropriate where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory [or retaliatory] motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Id. at p. 362.) Thus, notwithstanding shifting and inconsistent reasons, the Guz court concluded the employer was entitled to summary judgment where there was no direct and little, if any, circumstantial evidence that the employer's proffered reasons were false and where the plaintiff "made substantial concessions to the truth" of the employer's proffered reasons. (Id. at pp. 363, 364, 366, 369370, italics omitted [observing the plaintiff's "evidence raised, at best, only a weak suspicion that discrimination was a likely basis" for the adverse employment action]; see also McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532 ["Logically, disbelief of an [e]mployer's stated reason for a termination gives rise to a compelling inference that the [e]mployer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one"].)
Guided by these principles, we conclude Kazandjian's evidence is insufficient to raise a rational inference of retaliatory animus. First, City's reasons for not selecting Kazandjian for this position were not provided to Kazandjian contemporaneously with the filling of the position. Rather, these reasons were provided in discovery two to three years after the fact and thus subject to weaknesses in memory and record keeping. Second, City stated only two different reasons. City's statement that Kazandjian did not meet the requirements for the position and its later statement that he was not qualified are synonymous. City offered only one other and incorrect reason before reverting to its original explanation. Third, because Kazandjian "made substantial concessions to the truth" (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 363) of City's proffered reasons when he admitted it was a transfer position for SSA IIs and that he was not a SSA II, City's showing of an innocent reason for its employment action is strong. Finally, given Kazandjian's concession that he did not meet the qualification for this position, Hernandez's knowledge of his prior lawsuit was irrelevant; the evidence further shows her involvement in the hiring process was administrative and she did not play a role in recommending any candidate. Thus, Kazandjian has not adduced evidence sufficient to create a rational triable inference that his 2015 lawsuit caused or was a contributing factor in City's decision to not select him or that City would not have made the same decision even in the absence of his 2015 lawsuit.
Kazandjian conceded this by his description in his trial brief that "[i]t went from not qualified, to not submitting a resume, to back to not qualified."
b. August 2, 2018 and November 27, 2018 SSA II Positions i. August 2, 2018
As the parties have done, we assume, without deciding, that Kazandjian made a prima facie showing that City's decision to temporarily suspend hiring for an August 2, 2018 SSA II position with the customer service division constituted an adverse employment action. Nonetheless, City offered contemporaneous evidence of a legitimate, nonretaliatory reason for suspending the position in the form of an email dated September 21, 2018, from Bautista to Kazandjian. Baustista stated, "The [d]epartment is looking into reviewing the current position to see if duties are properly allocated to the right job class. In light of recent operational changes, there may be or may have been changes in the responsibilities of the position ...."
An adverse employment action" 'materially affect[s] the terms and conditions of employment.'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161, italics omitted.) "In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, italics omitted.)" 'A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.]" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)
Kazandjian argues Hernandez's July 31, 2018 email, Fernandez's testimony that Holm was trying to force him to hire someone other than Kazandjian, Fernandez's statement that his "hands were tied," and the creation of a supplemental questionnaire all raise triable issues of material fact of retaliatory animus and that his 2015 lawsuit contributed to City's decision to suspend hiring. We do not agree.
In the July 31, 2018 email, Hernandez states, "Because you currently have employees in the class of [s]enior [s]ystems [a]nalyst (I know of one in particular), I think that the position should also be open as a transfer and/or paygrade advancement opportunity to these employees." She further recommends that they use an outside interviewer to avoid the perception of bias and states, "we have to be careful in handling this package, as this could potentially result in a discrimination complaint." Assuming that "I know of one in particular" refers to Kazandjian, this does not indicate retaliatory intent, but the opposite; it indicates Hernandez wanted to ensure Kazandjian had the opportunity to apply for the promotional position. Similarly, Hernandez's recommendation that they use an outside interviewer to reduce or eliminate the perception of bias does not indicate retaliatory intent but its opposite. Further, given the context of the email, Hernandez's statement "to be careful in handling this package, as this could potentially result in a discrimination complaint" is not an acknowledgment that City was acting with retaliatory intent, but an expression that City should act in a manner not to provide a basis for any such complaint.
Fernandez's testimony that he felt Holm was trying to force him to hire someone other than Kazandjian also fails to create a triable issue of material fact. Taken in context, the rational inference from Fernandez's testimony is not that Holm harbored retaliatory intent against Kazandjian but a preference for women. Fernandez further testified he "never felt pressure from anyone in ITA or outside of ITA, to specifically not recommend . . . Kazandjian for the [position]." Further, Fernandez clarified that when he told Kazandjian that "his hands were tied" he meant that his involvement was only to score interviewees. There is no evidence that Fernandez meant he would be forced to give Kazandjian a lower rating in evaluating him than Kazandjian deserved.
As to the supplemental questionnaire, both Fernandez and Hernandez acknowledged that Hernandez helped decide on using a supplemental questionnaire and in preparing it. However, Fernandez testified that he prepared "the entire contents" of the questions, which were relevant to testing candidates' qualifications for the daily job functions of the position. He further testified that in his experience supplemental questionnaires are used "[a]lmost every single time." Indeed, ITA's paygrade advancement policy itself recognized that the selection panel may require candidates to submit written materials, an indication that such questionnaires were not an anomaly. Notably, Hernandez's July 31, 2018 email suggests the supplemental questionnaire was already completed and, thus, predated her recommendation that the position be opened to SSA Is, including Kazandjian. Moreover, although Kazandjian did not submit a response to the questionnaire, Fernandez still chose to interview him for the position.
Kazandjian suggests a jury could infer pretext from City's decision to post the same promotional opportunity "without any changes" approximately three months later, on November 27, 2018. Such an inference does not follow and is speculative; indeed, that the November 27, 2018 position remained open to Kazandjian and did not require any additional qualifications indicates the opposite.
Thus, Kazandjian's evidence does not raise a triable issue of material fact that retaliatory animus relating to his 2015 lawsuit caused or was a contributing factor in City's decision to suspend hiring for the August 2, 2018 position.
ii. November 27, 2018
City also submitted evidence of a legitimate, nonretaliatory reason for not hiring Kazandjian for the November 27, 2018 ITA SSA II position within the customer service division. Interviewers Fernandez and James Lee evaluated four candidates for the position. Fernandez was Kazandjian's friend. James Lee did not know Kazandjian had filed a lawsuit against City, and no one tried to influence James Lee's evaluation of Kazandjian. Following the interview, Fernandez and James Lee gave Kazandjian a combined score of 71 out of 100. Only one other candidate ranked lower than he. Another candidate, who had considerable supervisory experience and superior knowledge and skills, scored 90.5. Thus, City selected the better qualified candidate for the position.
Kazandjian argues he submitted sufficient evidence to create a triable issue of material fact that retaliatory animus caused or contributed to City's decision to not select him for the position. He contends City used the supplemental questionnaire to prohibit him from obtaining the position, that City overstated how often it used supplemental questionnaires, and that the employee who ultimately was selected was not a SSA I. None of this evidence creates a triable issue.
First, we have already described above that the supplemental questionnaire is not evidence of retaliatory animus. Kazandjian argues that Fernandez's statement that questionnaires were common is contradicted because the record contains only one such questionnaire. But there was only one SSA II position available in Fernandez's division, explaining why there was one questionnaire. Further, nothing suggests that the single supplemental questionnaire in the record is the only one City produced or identified in the litigation as having been used in hiring decisions.
Based on two versions of an unrelated job posting, one of which refers to a supplemental questionnaire and one that does not, Kazandjian also contends City "doctored" evidence to make it appear that it uses such questionnaires frequently. But City never referred to this job posting as evidence of its questionnaire use or relied on it. There is no basis to conclude City doctored evidence. Nor does the discrepancy between the posting for this unrelated job give rise to a genuine dispute of material fact in Kazandjian's case.
Kazandjian points to the person who was hired not being a SSA as demonstrating retaliatory animus. But Kazandjian does not explain the import of this fact or demonstrate that the individual in another classification was not better qualified for the position. Notably, that City hired someone outside the SSA class tends to corroborate its reason for canceling the August 2, 2018 posting-that it was unsure whether SSA was the proper classification for the position.
Kazandjian further argues that Hernandez's failure to investigate his complaint of retaliation as set forth in his February 8, 2019 letter to her is evidence that she harbored retaliatory animus towards him. Kazandjian sent the letter nearly two months after receiving Hernandez's correspondence that he was not selected for the position. Given the alleged adverse employment actions relating to the August 8, 2018 and November 27, 2018 positions occurred several months before Kazandjian's letter, any inference of retaliatory animus is attenuated. Moreover, Kazandjian's letter sought only to "memorialize" that he was not selected for the November 27, 2018 customer service division posting as a result of retaliation, did not identify any other instances of retaliation, and, although authored several months after Kazandjian filed his complaint with DFEH and government claim for damages, did not request a formal investigation into the issue. Thus, Hernandez's failure to conduct an unrequested formal investigation into the very decision that she reported to him does not support a reasonable inference of retaliatory animus. Further, as described above, there is no evidence that Hernandez influenced the interviewers' selection.
c. October 18, 2018 SSA II Position
City adduced evidence both that Kazandjian could not demonstrate a triable issue as to causation under FEHA or Labor Code section 1102.5 and that it had a legitimate, nonretaliatory reason for not selecting Kazandjian for the October 18, 2018 ITA SSA II position.
First, with respect to causation, City produced evidence that ITA's customary hiring process was for interviewers to evaluate the candidates and make a hiring recommendation to the assistant general manager or general manager. Kazandjian did not dispute that it would be unusual for the general manager or the assistant general manager not to select the interviewers' recommended candidate. Further, it is undisputed that the interviewers for the October 18, 2018 position-Timothy Lee and Zhong-had no knowledge of Kazandjian's 2015 lawsuit or any work issues. (See Arnold v. Dignity Health, supra, 53 Cal.App.5th at p. 429.)
Second, out of the three candidates, Kazandjian scored the lowest: 41 out of 100. Timothy Lee and Zhong determined that Kazandjian was not a strong candidate for the position and concluded that even the better scoring candidates were not qualified to be selected for the position. Thus, City demonstrated a legitimate reason for not selecting Kazandjian.
Kazandjian argues that City's discovery responses indicated that Hernandez, who knew about his 2015 lawsuit, "participated" in the alleged adverse employment action decisions. But Kazandjian offers no evidence that this participation, which was undefined in the discovery responses, included any influence of the selection process. In contrast, Hernandez did not deny participation but declared it was limited to procedural and administrative tasks and that she was not involved in the selection process.
Kazandjian claims that in accepting Hernandez's testimony as true, the trial court improperly made a credibility determination. Not so. Summary judgment standards do not require a court to assume the movant's evidence is false, and the court may consider all admissible evidence in granting summary judgment unless the parties' submissions demonstrate a conflict. Here, Kazandjian's evidence that Hernandez "participated" in the employment action decisions, without more, does not conflict with City's evidence that Hernandez's participation was limited and did not include influencing the selection process. Indeed, Timothy Lee and Zhong declared that no one attempted to influence their evaluation of Kazandjian and that they evaluated him based solely on his application and interview. Accordingly, there was no triable issue of material fact as to the October 18, 2018 ITA SSA II position.
3. Director of Systems and Information Systems Manager Exams
Citing McRae v. Department of Corrections &Rehabilitation, supra, 142 Cal.App.4th 377 for the proposition that "a disciplinary employment action will not ripen into an actionable adverse action while the employee retains the power to contest and correct it through internal grievance procedures" (id. at p. 382, fn. 1), the trial court determined that because City eventually permitted Kazandjian to take the 2017 director of systems exam, Kazandjian could not prove an adverse employment action as to the initial denial of that opportunity. Kazandjian does not contest this finding on appeal. Instead, he argues that Torres's attempt to convince Fernandez to change his 2013 director of systems verification is evidence of Torres's retaliatory animus concerning the information systems manager exam.
Torres participated in gathering information relevant to the information systems manager exam. However, there is no evidence that the information purportedly reported by Torres- that Kazandjian did not have the requisite supervisory experience-was false or exaggerated. To the contrary, Fernandez's 2014 work verification for Kazandjian did not state that he had such experience, and Fernandez stated the same. City's correspondence to Kazandjian on both October 20, 2017 (unsigned) and October 27, 2017 (from Ishii Hata after completing a review of his appeal) consistently explained that Kazandjian did not have the requisite two years of full-supervisory experience at the SSA II level for the information systems manager exam. Nor is there any evidence that Torres participated in making the decision to deny Kazandjian's application or appeal relating to the information systems manager exam.
Kazandjian argues a jury could reasonably reject City's proffered reason because, even without the supervisory experience, Kazandjian had been permitted to take the exam in 2014. However, the 2017 bulletin posted for the exam was clear that supervisory experience at the SSA II level was required and the record is devoid of any evidence that City's practice in 2017 was to disregard the exam requirements.
Kazandjian also argues that a jury could reasonably infer retaliatory animus on the part of Ishii Hata based on her failure to investigate his complaint of retaliation in his October 27, 2017 letter. In that letter, Kazandjian noted that he received a voicemail that his application to take the exam was denied, argued that he should be able to take the exam even if he did not have the supervisory experience, provided examples of when he was a supervisor, and concluded by stating that he believed "this is in retaliation for my past complaints." On November 7, 2017, Ishii Hata responded to Kazandjian's letter, explaining why City decided he was not qualified to take the exam.
Kazandjian argues that, "Rather than interview [Kazandjian] about how he believed he was experiencing retaliation, and whether there was a pattern of [City]'s unjust obstacles to preclude [Kazandjian] from promoting, Ms. Ishii[ ]Hata only emailed him back regarding the denial of his appeal to take the [i]nformation [s]ystems [m]anager examination and offering a reason for the denial."
However, the only alleged act of retaliation in the letter was City's denial of Kazandjian's application to take the test. Thus, Ishii Hata did not need to contact Kazandjian to determine "how he believed he was experiencing retaliation" as it was already clear from the letter. Moreover, as the person responsible for employee appeals relating to civil service exams, Ishii Hata had already investigated whether the decision to deny had been proper. By describing the reasons for Kazandjian's denial, Ishii Hata both demonstrated that she investigated the basis for his retaliation claim and addressed that basis. Kazandjian's letter did not request a formal investigation. Given these circumstances, that she failed to conduct a further investigation is not sufficient to raise an inference of retaliatory animus, and Kazandjian has not demonstrated his 2015 lawsuit was a contributing factor to City's decision to deny his application to take the information systems manager exam.
4. Lack of Recent Performance Evaluations
Kazandjian did not identify City's failure to provide more recent performance evaluations as an alleged adverse employment action in his complaint or in responses to interrogatories asking him to identify adverse employment actions. In ruling on City's motion, the trial court observed that it was limited to considering theories raised in Kazandjian's complaint. We agree. "The pleadings play a key role in a summary judgment motion and '" 'set the boundaries of the issues to be resolved at summary judgment.'"' [Citation.] 'A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,' and '[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.' [Citation.]" (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170-171.)
On appeal, Kazandjian argues that his failure to refer to the lack of performance evaluations in his complaint was "immaterial" and explains "it was evidence of retaliatory intent and . . . formed one of the grounds on which [City] denied [Kazandjian] a promotion, which he did allege as [an] adverse employment action." Because Kazandjian did allege that City denied him an equal opportunity to promote, we consider City's failure to provide performance evaluations not as an adverse employment action standing alone, but as it relates to his ability to promote. We assume for this purpose without deciding that failing to provide performance evaluations is an adverse employment action.
Kazandjian argues it is undisputed that City's policy and practice is not to review performance evaluations when considering a candidate for hire or promotion. The evidence in the record, however, is that this was an ITA practice and not a City-wide policy.
The evidence Kazandjian cites in support of his statement is Vasquez's deposition. Vasquez testified in the context of his understanding of hiring practices that he obtained "[a]s a [p]ersonnel [d]irector II within the ITA." Vasquez did not discuss his experience, if any, with LAPD, LAWA, or any other City agencies and their hiring and interview policies.
Because ITA's practice is not to provide performance evaluations to interviewers, Kazandjian cannot demonstrate that by their failure to provide Kazandjian with a more recent evaluation, his ITA supervisors and others who worked on behalf of ITA sought to obstruct his ability to promote within ITA. Stated differently: written performance evaluations are irrelevant to the ITA promotional process. Nor, as we describe below, is there any evidence that ITA provided performance evaluations to any other City agency. And, finally, there is no evidence in the record that ITA supervisors or decision makers knew that-contrary to ITA's practice-other City agencies like LAPD would consider Kazandjian's performance evaluations as would be necessary to rationally infer retaliatory animus.
Accordingly, there was no triable issue of fact as to the alleged adverse employment action of not providing more recent performance evaluations.
5. LAPD Positions
City offered evidence that none of the LAPD interviewers (Jantz, Takahata, Bottancino, and Turner) knew about Kazandjian's 2015 lawsuit. Further, each of these interviewers declared they evaluated Kazandjian solely on his interview and application and that no one other than their interview partners attempted to influence their evaluation of him. Hernandez, Ross, and Holm, who knew about Kazandjian's lawsuit, also declared they were not involved in hiring or promotional opportunities for LAPD, and Hernandez testified that no one that she supervised was involved in hiring for SSA II positions for LAPD. Accordingly, City adduced evidence that there was no causal link between his 2015 lawsuit and LAPD's decision not to hire Kazandjian for the positions for which he interviewed on November 18, 2016, January 12, 2018, and September 5, 2018. (See Arnold v. Dignity Health, supra, 53 Cal.App.5th at p. 429.)
Kazandjian attempts to create a triable issue by pointing to a mistake in City's April 2, 2020 discovery responses, where City listed Hernandez as a person who "participated" in the decision to not hire Kazandjian for the November 18, 2016 and January 12, 2018 positions. However, Hernandez did not verify these responses until four months later, on August 27, 2020, the same day she also verified amended responses removing her name as a participant with respect to these positions. A responding party is permitted to amend their discovery responses, and nothing in the record indicates City was bound by its original unverified response (see Code Civ. Proc., § 2030.310, subd. (b)) or that City's original response was anything other than a mistake.
City also adduced evidence that LAPD had legitimate, nonretaliatory reasons for not selecting Kazandjian for these three positions. The evidence in the record demonstrates that there were better qualified candidates for each position and that the interviewers who scored the candidates did not know about Kazandjian's lawsuit.
Kazandjian does not dispute that there were better qualified candidates or that the LAPD interviewers had no knowledge of his lawsuit. Rather, Kazandjian argues a jury could reasonably infer Hernandez, Holm, or Ross affected the outcome of the LAPD's selection process out of retaliatory animus. He argues Hernandez "was the main person within personnel for the ITA" and subject to direction from Ross or Holm, who also knew about his lawsuit. Further, City's "policies prohibit interviewers . . . from considering or relying upon the candidate's performance evaluations as part of the interview process," and Takahata and Bottancino somehow each obtained a copy of his 2014 performance evaluation. Thus, Hernandez, Ross, or Holm either directly or indirectly provided Kazandjian's performance evaluation to Takahata and Bottancino to "sabotage [his] advancement prospects."
The record does not support such an inference. First, although Hernandez was the main human resources personnel for ITA, and Ross and Holm held senior positions within ITA, there is no evidence any of them had any contact with or influence over LAPD, a separate agency, or that they knew Kazandjian was interviewing with LAPD. Second, as described above, the performance evaluation policy to which Kazandjian refers is ITA's practice, not an LAPD policy. Third, Bottancino testified that it was typical for LAPD administrative staff to ask interviewees for their most recent performance evaluations and provide those evaluations to the interviewers. Kazandjian himself never denied giving his 2014 performance evaluation to LAPD. Thus, it is not reasonable to infer simply from a dearth of evidence concerning who provided the performance evaluation to Takahata or Bottancino that they were only able to obtain it as a result of retaliatory animus harbored by Hernandez, Ross, or Holm. Kazandjian's argument to the contrary is speculation, insufficient to create a triable issue. (See Sinai Memorial Chapel v. Dudler, supra, 231 Cal.App.3d at pp. 196-197.)
Kazandjian argues a jury could infer Holm harbored retaliatory animus because she requested that Torres contact Fernandez to convince Fernandez to change his verification form concerning the director of systems exam qualifications. There is no evidence to support that Holm provided any such instruction. Although Holm was an assistant general manager for the ITA, and Torres stated that his "AGM" instructed him to contact Fernandez, there is no evidence that Holm was Torres's assistant general manager. To the contrary, Torres did not work for ITA. He worked for the personnel department, employment services section, for whom the assistant general manager was Lemus. Torres specifically declared Lemus instructed him to contact Fernandez.
Kazandjian argues his 2014 performance evaluation did not include his current experience, and, thus, harmed his chances of LAPD hiring him. Because he cannot demonstrate a causal link between his 2015 lawsuit and LAPD's use of his 2014 performance evaluation, we need not consider whether or how the lack of a more recent evaluation affected his prospects for hire within LAPD.
6. Assigned Clerical Tasks and Miniscule Duties
Kazandjian argues that following his 2015 lawsuit, he was assigned miniscule and clerical tasks to prevent him from garnering the experience required to advance his career and to drive him to quit. Specifically, he argues that although he was supposed to be a project manager for the digital inclusion project, he was assigned clerical tasks instead of project manager tasks.
Holm testified that for the project, she expected Kazandjian to produce website content about opportunities for people to get low-cost internet, to do research, to attend and contribute to meetings, to write and collect documentation (as needed), and to bring his expertise from his prior work to "thoughtfully contribute to how we could improve digital inclusion in Los Angeles." Although Kazandjian cites to Holm's testimony, he does not articulate whether he believed her testimony represented the clerical tasks or the project manager tasks he had hoped to have assigned to him. There is no other evidence in the record describing what "clerical" or "miniscule" tasks Kazandjian had to perform or what portion of his work such tasks comprised.
Kazandjian's conclusory statement that he was assigned "clerical" tasks is insufficient to demonstrate a prima facie case of an adverse employment action as there is no way to determine whether being assigned to any particular task caused materially adverse consequences." '" '[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.' . . . If every minor change in working conditions or trivial action were a materially adverse action then any 'action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' . . ." . . . The plaintiff must show the employer's . . . actions had a detrimental and substantial effect on the plaintiff's employment.' [Citations]." (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357-358.)
7. Failure to Investigate Retaliation as Evidence of Retaliatory Animus
Kazandjian lastly argues he made several complaints of retaliation that City failed to investigate, and that this evidences retaliatory animus. These complaints include his October 27, 2017 email to Ishii Hata, his February 20, 2018 letter to Ross, his September 5, 2018 DFEH complaint, his January 4, 2019 government claim for damages, his February 8, 2019 email to Hernandez, a letter dated August 27, 2019 to "Honorable Elected Officials," and a similar letter dated September 25, 2019 to the mayor, the council president, the city attorney, and a councilmember.
As described above, City's failure to conduct further investigations as a result of Kazandjian's letters to Ishii Hata and Hernandez does not demonstrate retaliatory animus.
Turning to the letter to Ross, this letter does not state City retaliated against Kazandjian and did not request an investigation. Instead, Kazandjian requested that he be considered next in line for a promotion. He also noted that he filed a civil complaint and a grievance, and explained, "These issues should not overshadow my long career of consistent and substantive contributions to the ITA." Moreover, there is no evidence that any of the interviewers presented Ross with Kazandjian's name as a candidate recommended for hire or promotion and, thus, no evidence he participated in any alleged adverse employment action.
With respect to the letters to the elected officials, Kazandjian authored these letters after he filed this lawsuit, and he does not develop any arguments that City's failure to investigate retaliation with respect to these letters demonstrates retaliatory animus by any of the relevant decision makers.
In separate discovery responses served on April 2, 2020, City responded "[n]o investigation was conducted" to requests asking that City produce documents related to any investigation that it conducted in connection with Kazandjian's FEHA complaint filed on September 5, 2018, or his government claim for damages. Kazandjian provides no evidence, however, that the persons who made the alleged adverse employment actions described herein would have been responsible for investigating Kazandjian's FEHA complaint or government claim for damages. Thus, such evidence fails to demonstrate a triable issue as to any relevant retaliatory animus.
C. Evidentiary Objections
Kazandjian contends that the trial court erred in sustaining objections to his declaration and specifically challenges four of these objections. We find no prejudicial error in the court's evidentiary rulings.
Relying on Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, Kazandjian first argues the court erred by sustaining "blanket" objections to his declaration. The plaintiff in Twenty-Nine Palms Enterprises Corp. submitted 33 objections spanning 48 pages in length to a seven-page defense declaration. (Id. at p. 1447.) The trial court summarily sustained them all. (Ibid.) Noting that it appeared the trial court did not consider the objections individually, the appellate court found the trial court's evidentiary rulings an abuse of discretion, albeit a harmless one. (Id. at pp. 1447-1449.)
Here, City's objections and the trial court's ruling do not compare to what occurred in Twenty-Nine Palms Enterprises Corp. City made 26 objections, spanning eight (instead of 48) pages, to Kazandjian's seven-page declaration. The trial court did not summarily rule on them as a group, but parsed through them, sustaining 11 out of the 26 objections or less than half. While the basis for the court sustaining the objection is not always clear, as some objections targeted particular passages on more than one ground, our review indicates that each passage as to which an objection was sustained contains objectionable material justifying the court's ruling. We presume the trial court followed applicable law, and it is plaintiff's task-not this court's-to show the trial court prejudicially erred. (See Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956.) Kazandjian has not done so.
Kazandjian next argues the trial court prejudicially abused its discretion with respect to four particular objections. First, Kazandjian argues the court erred in excluding statements in his declaration that Fernandez forwarded Hernandez's July 31, 2018 email to him, that Fernandez told him that he felt the email concerned him, and that during the same conversation, Fernandez told Kazandjian he could not give him the position because his hands were tied. The trial court did not sustain City's objection to the email itself, and any error as to the remainder was harmless because other evidence (namely Fernandez's testimony) was admitted setting forth the facts stricken from Kazandjian's declaration.
Kazandjian next argues the court erroneously excluded his statements about who was selected for the November 27, 2018 ITA SSA II position and that this person was a systems programmer rather than a SSA I. Again, we need not address whether this ruling was error because any relevant facts in this passage were otherwise admitted. Fernandez stated in his declaration who was selected for the position and Hernandez testified the selected candidate was not a SSA I at the time he was hired for the position. As to the fact that the selected candidate was a systems programmer, Kazandjian does not describe why this is relevant. Accordingly, the trial court did not prejudicially err.
Third, Kazandjian argues the trial court erred in sustaining City's objections to the following paragraph: "Shortly after I resolved my first lawsuit against [City], I was approached by Ted Ross to discuss whether I was satisfied with the outcome of my first lawsuit against [City]. I responded with something along the lines of, 'I am just happy it's over and behind me.' After that, Mr. Ross inquired into whether I wanted to 'do more for the [d]epartment?' I of[ ]course answered with a yes. Shortly after that, Mr. Ross'[s] office setup a meeting between myself and [a]ssistant [g]eneral [m]anager, Jeanne Holm. At this meeting, Ms. Holm offered me a 'project manager' role for the [b]roadband [c]onnectivity and [d]igital [i]nclusion [p]roject. I was excited for the opportunity and looking forward to performing project manager duties. During my time on this project, I was supervised by William Imperial and Ms. Holm. Shortly after beginning to work on this project, I realized that I was being assigned clerical type duties instead of project manager duties. I complained about being assigned these clerical type duties, but my complaint was determined to be unfounded. Mr. Wnuck [sic] [was] also verbally and emotionally abusive to me during this time. I complained about Mr. Imperial's bullying conduct, but my complaints were ignored similar to my retaliation complaints."
Much of what is contained in this paragraph is irrelevant to Kazandjian's retaliation claims, such as his innocuous discussion with Ross. Other portions of this paragraph are duplicative of other admitted evidence, such as Holm placing him on the digital inclusion project, that Imperial supervised him, and that Kazandjian complained that he was given clerical duties. Other portions are conclusory. Kazandjian claims he was assigned clerical duties without any description of what those duties were, how often he performed them, and how they differed from the duties he believed he should have been performing. Accordingly, we conclude that the trial court's exclusion of this paragraph was not a prejudicial error.
Finally, Kazandjian argues the trial court erred in sustaining City's objection to the paragraph in his declaration in which he describes his complaints of retaliation that City failed to investigate. We considered these complaints above regardless of the court's evidentiary ruling and found them insufficient to create a triable issue of retaliatory animus. Thus, the trial court's exclusion of this evidence was harmless.
DISPOSITION
The judgment is affirmed. City is awarded its costs on appeal.
We concur: ROTHSCHILD, P. J. CHANEY, J.