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applying the McDonnell Douglas test to retaliation claims brought pursuant to California's Fair Employment & Housing Act, but section 1102.6 ’s "clear and convincing evidence standard" to section 1102.5 retaliation claims
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D073007
02-13-2018
CYNTHIA TENPAS, Plaintiff and Appellant, v. RIVERSIDE COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.
Sage Law Partners and Darrel C. Menthe for Plaintiff and Appellant. Liebert Cassidy Whitmore, Mark H. Meyerhoff and Lee T. Patajo for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1404069) APPEAL from a judgment of the Superior Court of Riverside County, Sunshine S. Sykes, Judge. Affirmed. Sage Law Partners and Darrel C. Menthe for Plaintiff and Appellant. Liebert Cassidy Whitmore, Mark H. Meyerhoff and Lee T. Patajo for Defendant and Respondent.
Plaintiff and appellant Cynthia Tenpas, a tenured faculty librarian and former college administrator, sued her employer, defendant and respondent Riverside Community College District (the District), for damages on two theories of retaliation for protected conduct. (Cal. Fair Employment & Housing Act (FEHA), Gov. Code, § 12900 et seq.; Lab. Code, § 1102.5 [unlawful for employer to retaliate against employee for disclosing to superior/agency the employee's reasonable beliefs that unlawful conduct is occurring at workplace].) Tenpas sought to prove that her administrative position as an associate dean at one of the District's campuses was eliminated through an administrative reorganization that was actually carried out as a pretext for retaliating against her for taking medical leave for disability, or reporting a hostile workplace environment. (§ 12940, subds. (h), (m).) She alternatively pled she had been subjected to unlawful retaliation for objecting to a potentially illegal student hiring decision that might have raised immigration law concerns. (Lab. Code, § 1102.5, subds. (b), (c).)
All further statutory references are to the Government Code unless noted.
The District brought a summary judgment motion on the grounds that it had acted for legitimate administrative and budgetary reasons that were nonretaliatory, and that government claims requirements had not been satisfied. The motion was granted and Tenpas appeals. (Code Civ. Proc., § 437c.) Initially, she agrees it was appropriate for the trial court to rule that she had sufficiently made her prima facie case that the actions by the District left open a question of fact on whether a pattern consistent with retaliatory intent existed. However, she asserts the court went on to misapply the burden-shifting test established for resolution of employment discrimination claims under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). In her view, she demonstrated there were triable material issues of fact on whether her administrator's contract was not renewed for retaliatory reasons, rather than on the pretext of a justifiable administrative reorganization. She points to her exercise of several types of protected conduct when communicating to her superiors about employment-related matters, as giving rise to inferences in her favor about retaliation. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins) [causal link required between protected activity and adverse employment action].)
Tenpas has failed to demonstrate the existence of triable material issues of fact on her claims of retaliatory actions taken against her because of her protected conduct. Her related contentions are not supported by the record. We affirm the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We initially outline the facts as Tenpas has set them forth in her operative pleading, the second amended complaint, and her declaration in opposition to the summary judgment motion. In its ruling, the court accepted as sufficient her prima facie case of retaliation, and it is appropriate initially to outline the facts in that manner. We defer a fuller summary of the District's position that it engaged in legitimate, nonretaliatory administrative decisionmaking, until the discussion portion of this opinion (pt. II.B, post).
A. Outline of Employment History; Student Success Act
Tenpas had been employed by the District since 1996 as a tenured faculty level librarian. After a brief absence to work elsewhere, she returned in 2006 to District employment in the position of assistant dean and then dean for library/learning resources, at one of its campuses, Moreno Valley College (MVC). At all relevant times, she retained "retreat rights," the right to return to a salaried faculty position within the District, if a managerial assignment were eliminated.
In addition to MVC, the District operates two other colleges and also various training centers, each of which has assigned administrators and deans.
As of July 2011, Tenpas began a two-year renewable contract position as the MVC dean for technology and instructional and support services (sometimes designated the TISS deanship). In that position, she was required to supervise a number of regular and student employees. While she was holding this full-time TISS deanship position, Tenpas was assigned as of July 2012 to fill, on an interim basis, an additional deanship position as the acting dean at another district campus, a law enforcement center named the Ben Clark Training Center. She was expected to serve there for about six months until its regular administrative job could be filled there, while also fulfilling her duties full time as TISS dean. At some times, she did work for those two different campuses while physically present at one or the other.
During her time as interim dean at the Ben Clark Training Center, she experienced hostility from staff members, which she believed was due to her gender. When the head of law enforcement at the center, a police captain, asked her for information about the District budget, Tenpas responded that she was not allowed to provide such budgetary information to him. He responded angrily by telling her that she was either "stupid" or a "liar." The same type of incident happened a month later. Tenpas reported the first incident to her immediate supervisor, Dr. Cordell Briggs, asking him for permission to disclose the budget and telling him that the hostile environment was causing her great anxiety. She did not file any written complaints of harassment, and left the Ben Clark Training Center at the end of her term there, in December 2012.
At the outset of 2013, Tenpas was temporarily reassigned to another interim position as dean of instruction at MVC, until a regular appointment could be made. Both this temporary additional deanship position and the one at the Ben Clark Training Center had involved a pay increase and a significant increase in responsibilities, while she was being expected to continue fulfilling her regular duties as TISS dean as well, sometimes off site.
In late 2012, the Legislature enacted the Student Success Act of 2012 (the Student Success Act or the Act), which was to become effective in 2013 subject to funding availability. (Ed. Code, § 78210 et seq.) The District was required to begin providing specialized orientation services to students and to expand its counseling, assessment, and education planning services.
B. Events Surrounding Medical Leave and Return, March 2013-August 2013
In March 2013, Tenpas requested three months of stress-related medical leave from her TISS deanship position, as she had been diagnosed with major depression and sleeplessness. The District did not dispute that these were protected disability conditions. The request was granted and the leave was extended until October 2013. In the meantime, the position of MVC dean of instruction had been filled by a regular employee.
In late April-early May 2013, Tenpas made a request for temporary reasonable accommodations of her medical needs (working from home two days a week, and limiting her work hours to 45 hours per week). In June 2013, the District denied her request for accommodation, stating that her TISS deanship duties at MVC required her to be on site there full time.
While Tenpas remained on medical leave, the District recruited for and hired an acting or interim TISS dean, who began such duties in July 2013. Also in July 2013, Tenpas consulted with her doctor and received permission to return to work full time and without restrictions, which she did on August 19, 2013, earlier than previously expected. Upon her return, she was required to fill out a self-evaluation of her performance, although she had completed one the previous year and she understood that administrators normally were required to do so only every three years. Tenpas also noticed that her office conditions were less favorable than when she left (inoperative voicemail, another person's business cards in her office, name removed from office door, etc.). Tenpas believed that she was being excluded from meetings of other deans, at the direction of Dr. Robin Steinback, an MVC vice-president of academic affairs. Tenpas also believed she was being left out of departmental decisionmaking when she returned (e.g., the shutdown of the MVC public access television station). Although the vice-president for business services, Norm Godin, had the authority to make such a decision, she believed she was being insulted when he failed to consult her about the shutdown.
When Tenpas returned to work in August 2013, she was offered only a one-year contract extending until June 2014, contrary to the previous two-year contract arrangement that she had accepted before. She believed that this shortened period for her contract was an indication that the administration was sending her a signal that someone there had decided to try to get rid of her.
C. Hiring Process for Student Assistant; Notification of Elimination of Position,
November-December 2013
On November 7, 2013, Tenpas received an e-mail from one of her superiors, Dr. Greg Sandoval (a vice-president of academic affairs), asking her to interview a student worker, "Marissa," for a job at the library. This student was transferring to MVC from another training center of the District, its extended opportunity program. Tenpas believed that normal employee recruitment procedures were not being followed. By e-mail on November 26, 2013, Tenpas told Dr. Sandoval that it did not appear that "Marissa" had any picture identification or social security number on file, and she questioned him about whether a potential immigration violation would occur if the hiring went through, without the student's presentation of proper work authorization papers as of the time of hiring. By e-mail dated the same day, Dr. Sandoval agreed with Tenpas that no exceptions should be made to applicable hiring laws. Less than one-half hour later, both Dr. Sandoval and Tenpas received an e-mail from the District's student employment office, advising them that it had Marissa's social security number on file. Tenpas believed that Dr. Sandoval was clearly unhappy that Tenpas had questioned whether there might be some immigration issues or concerns with that hiring decision.
Tenpas alleges facts about her objections raised in the fall of 2013 to the hiring of the student assistant, Marissa, only as general background in her FEHA retaliation cause of action. Those allegations are more fully set forth in her separate Labor Code retaliation claim. It should also be noted that the District successfully demurred to that Labor Code claim, but the second cause of action was reinstated following writ proceedings pursued by Tenpas. Both causes of action were the subjects of the District's summary judgment motion.
On December 11, 2013, Tenpas was notified at a meeting with the District's vice chancellor of human resources and the MVC president, Dr. Sandra Mayo, that due to "a necessary reorganization of the College," Dr. Mayo had decided to eliminate the administrative position of TISS dean, effective at the end of Tenpas's contract year, June 30, 2014. In confirmation, Dr. Mayo wrote to Tenpas in an e-mail that the college was reorganizing and she would be receiving an official letter about her retreat rights to a faculty position within the District.
In response, Tenpas's attorney wrote the first of his two letters to the District on January 14, 2014, explaining her views that the elimination of her position through reorganization amounted to an adverse employment action, because she would be retained in some employment but only at a substantially reduced salary and retirement entitlements. Both in that letter and in one dated February 24, 2014, her attorney requested an informal resolution of the matter, such as creation of a new job description and salary level, without the need for formal complaint and possible litigation. Counsel for the District responded, initially reiterating the reasons Dr. Mayo had given for the administrative reorganization and requesting that counsel continue to discuss the matter, such as assignment to a different campus. The District next declined to create a new job description and characterized its recent February 2014 letter from its interim vice chancellor of diversity and human resources as merely giving Tenpas notice of what her assignment would be if she chose to exercise her retreat rights, although she remained free to decide whether she wanted to retire or resign rather than retreat.
D. Filing of Complaint and Summary Judgment Proceedings; Written Ruling
Tenpas filed a complaint with the DFEH, claiming retaliation because of her engagement in protected activities, taking medical leave and reporting a potential hiring violation. Tenpas received a right to sue letter on her FEHA claim, and filed her complaint in April 2014.
As amended, the complaint first alleged a FEHA claim for retaliation, and sought damages in the form of her reduced pay and retirement benefits, and for emotional distress. Tenpas contended that her administrative position had been eliminated, on pretexts, as retaliation for four groups of her FEHA-protected conduct: (a) reporting a hostile work environment at the Ben Clark Training Center, (b) taking medical leave for work-related stress, (c) requesting temporary accommodation for disability, which was denied, and (d), experiencing a hostile environment on her return from medical leave.
In Tenpas's cause of action for retaliation under Labor Code section 1102.5 (for which no FEHA right to sue letter was required), she additionally alleged that her objections to the proposed student hiring were in the nature of whistleblowing about potential immigration violations.
After answering and conducting discovery, the District moved for summary judgment or, alternatively, summary adjudication of each cause of action. As to Tenpas's FEHA retaliation cause of action, the District applied the burden-shifting approach under McDonnell Douglas, supra, 411 U.S. 792, to argue Tenpas could not establish a causal connection between the administrative reorganization that eliminated her deanship position, and her exercise of protected conduct. Tenpas's administrator's contract provided that it was discretionary with the District to determine whether it should be renewed.
The District provided declarations and attached exhibits from the MVC president, Dr. Mayo, and its three vice-presidents, who had participated in several 2013 retreats and meetings that addressed administrative reorganization and budgetary concerns arising from the enactment of the Student Success Act. This reorganization ultimately resulted in distribution of the duties of the TISS deanship to other existing administrative positions (vice-presidents for student services and business services, and the dean of instruction), without any associated raises in pay. Later, two new deans were named for different, newly created departments, reflecting different needs developing in the District, in part due to the recent legislation.
As to Tenpas's whistleblower retaliation cause of action, the District argued she could not establish a causal connection between the decision to eliminate the TISS deanship position and her complaints to Dr. Sandoval about perceived immigration violations. The student worker involved had promptly been determined to have the proper credentials at the time. The District also contended Tenpas had not complied with government claims requirements by sending letters seeking to negotiate for a new job description.
In opposition, Tenpas submitted her own declaration and that of her attorney, each authenticating numerous exhibits and portions of her deposition transcript and those of the District administrators. Tenpas took the position that it was inferable from the evidence of different kinds of retaliatory conduct that her position alone was eliminated, on a pretext of a need for administrative reorganization.
The court required the District to submit exhibits that had been inadvertently omitted from its initial filing, and took the matter under submission after receiving the reply papers. No requests for a reported hearing were submitted.
At the outset of its written ruling, the trial court took judicial notice of the prior writ proceedings on demurrer, and made various evidentiary rulings that have not been effectively challenged on appeal. (See fn. 3, ante.) In addressing the FEHA retaliation cause of action, the court initially determined Tenpas had sufficiently established the elements of her prima facie case, that at least one protected activity (medical leave) had taken place, along with an adverse employment action and a causal link between the two.
The court next turned to the issue of whether the District had been able to articulate legitimate and nondiscriminatory reasons for its decision to eliminate the position of TISS Dean, as part of an administrative reorganization. The court observed that Tenpas "does not seem to dispute that the reasons stated by the District may be legitimate, nondiscriminatory reasons but claims they are pretextual." The District had presented credible evidence that as early as mid-2012, when Dr. Mayo took office, she considered consolidating the TISS deanship duties with other departments. During a March 2013 senior administrators' retreat held by Dr. Mayo with the three MVC vice-presidents, reorganization was discussed but no final decision was made. The court found persuasive the evidence presented by the District that the new obligations imposed by the Student Success Act had resulted in the elimination of the TISS position. These obligations included the expansion of the student services branch to comply with its directives. In Dr. Mayo's declaration, she stated that MVC needed to reallocate resources from academic affairs to student services, to comply with the Student Success Act.
The court then examined the rebuttal evidence provided by Tenpas on whether the above District decisions were pretextual, and found it was not supportive of her contentions. Tenpas did not dispute that the Student Success Act required MVC to reevaluate its positions and budget in order to achieve compliance with it. Although there was evidence that an additional dean was hired after she was notified of her own demotion, and that more deanship positions have since been added, Tenpas could not provide any evidence regarding the job duties of those deans or the means of funding their positions. Tenpas could not show that she was qualified to perform the functions of the remaining deanship positions. The court noted she had not provided any evidence that her position had been reinstated or that retaliation had occurred, and found that her beliefs otherwise had not been substantiated.
Instead, the evidence was evaluated by the trial court as showing that during her medical leave, Tenpas's job "was held open for her and was given back upon her early return. [She] was even given a contract extension while on medical leave." She was permitted to remain on as a faculty member. The court thus found no substantial or specific evidence raised triable issues of fact that the District's decisions were pretextual.
With respect to the claim that Tenpas was subject to retaliation as a whistleblower, the court first ruled that the January and February 2014 letters her attorney sent to the District were inadequate to show she had substantially complied with Government Claims Act requirements. (§ 810 et seq.) The letters did not include any precise claim for monetary damages or any estimate of the amount of prospective injury or loss. The court also declined to find that the District came under a duty to notify Tenpas of the inadequacies in her "claim as presented," pursuant to sections 910.8 and 911. Overall, her two attorney letters had requested negotiation of an ongoing dispute, rather than constituting a claim for damages that had been presented. The court found the Labor Code section 1102.5 claim was barred by governmental claims requirements.
However, even assuming there had been substantial compliance with claims requirements, the court said it would have found there were no triable issues about this type of alleged retaliation. The evidence of e-mails between Tenpas, Dr. Sandoval, and the student employment office about "Marissa" did not mention the term "immigration," but did serve to raise factual issues about whether the student was currently authorized to work at that time, pursuant to state and federal regulations. Nevertheless, the court determined that for the same reasons that the District had been able to set forth legitimate nondiscriminatory reasons for the termination of the TISS deanship position, the District was likewise able to show that the administrative dean contract would not have been renewed, even if Tenpas had not allegedly engaged in the protected activity of whistleblowing. Moreover, by alleging only that she believed Dr. Sandoval was unhappy or angry with her on the subject, Tenpas was unable to show that he was responsible for retaliating against her. Summary judgment was entered accordingly, and Tenpas appeals.
DISCUSSION
A defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's cause of action or shows that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) "On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz, supra, 24 Cal.4th 317, 334.)
We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 (Wiener)), and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Aguilar, supra, 25 Cal.4th at p. 850; Loggins, supra, 151 Cal.App.4th 1102, 1109.) We do not decide factual issues on summary judgment "but may only identify the presence or absence of factual issues." (Id. at p. 1110.)
I
SUMMARY JUDGMENT IN CONTEXT OF FEHA PROTECTIONS
Pursuant to the burden-shifting test set forth in McDonnell Douglas, supra, 411 U.S. 792, the District's summary judgment motion on Tenpas's FEHA retaliation claim undertook to present admissible evidence that the employment action it took, administrative reorganization, was based on legitimate, nondiscriminatory factors. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309 (Sandell).) In opposition, Tenpas argued she could show the timing and motivations for the decision were retaliatory, and she sought to produce " ' " 'admissible evidence which raises a triable issue of fact material to the defendant's showing. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion. . . .' " ' " (Ibid.; italics omitted.)
Under section 12940, subdivision (h), it is unlawful for an employer to "discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA]," or due to the filing of a complaint or assisting in a proceeding that is authorized by FEHA. To establish a prima facie case of retaliation in violation of FEHA, a plaintiff must show (1) he or she was engaged in protected activity, (2) the employer subjected him or her to an adverse employment action and (3) there is a causal connection between the protected activity and the employer's action. (Loggins, supra, 151 Cal.App.4th 1102, 1109.)
An employer's retaliatory motive can be " ' "proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter." [Citation.] "The causal link may be established by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.' " ' " (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70 (Morgan); Tomasso v. Boeing Co. (3d Cir. 2006) 445 F.3d 702, 706 [employee must " 'demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," and hence infer "that the employer did not act for [the asserted] non-discriminatory reasons" ' "].)
"While state and federal legislation concerning [age] discrimination differs in some respects, their objectives are identical, and courts of this state have looked to federal law to aid in the interpretation of analogous provisions of California statutes." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002, fn. 1 (Hersant).)
The McDonnell Douglas framework for resolving claims at the summary judgment stage allows a showing of temporal proximity between a protected act, and an adverse employment action, to operate to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action. However, more is needed to satisfy the secondary burden borne by the employee, to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual. (Loggins, supra, 151 Cal.App.4th 1102, 1112-1113.) "[T]emporal proximity, together with the other evidence, may be sufficient to establish pretext." (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353-354 (Arteaga); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [evaluation of whether employee and employer meet initial burdens is a question of law, not fact].)
" 'Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case.' " (Guz, supra, 24 Cal.4th at p. 362.) A court may grant summary judgment for an employer "where, given the strength of the employer's showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred." (Ibid.) In this context, " 'legitimate' reasons . . . are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.' " (Id. at p. 358.)
If the employer meets its initial burden, the burden shifts to the employee to demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action. (Batarse v. Service Employees Intern. Union Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).) Tenpas had to establish either that the District's proffered explanation " ' "is unworthy of credence" ' " or that " ' "a discriminatory reason more likely motivated [it]." ' " (Ibid.)
II
FEHA RETALIATION CLAIM
A. Issues Presented and Overview of Protected Conduct
Tenpas's complaint and opposing separate statement of material facts outlined her theory that her administrative position was eliminated in retaliation for her participation in protected activities. In its ruling, the trial court mainly focused on her actions in taking medical leave for disability, and on her perception that she was left out of decisionmaking when she returned to work (not being invited to deans' meetings and not being involved in decision to shut down the TV station). With respect to those allegations, the court determined she had adequately made out her prima facie case of retaliation. The court accordingly declined to address two alternative allegations of protected conduct for which she believed she had been unfairly penalized, (a) her reports of a hostile working environment at the Ben Clark Training Center, and (b) the District's denial of her May 2013 requests for temporary reasonable accommodations of her medical needs (working from home part time, and limiting her work hours). (Gov. Code, § 12940, subd. (m) [unlawful for an employer to fail to reasonably accommodate an employee's known physical or mental disability, unless the accommodation would produce a demonstrable undue hardship].)
On appeal, Tenpas alleges it was error for the trial court to fail to make more specific rulings on those alternative allegations (including the adverse conditions upon her return). "[W]e are not bound by the trial court's stated reasons for its ruling on the [summary judgment] motion; we review only the trial court's ruling and not its rationale." (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.) Since the court ruled that as a matter of law she had satisfied the prima facie case requirement, and since the parties have briefed each alternative FEHA theory on appeal, we may discuss them as necessary in this de novo review (e.g., denial of her accommodation request; part II.C, post). In any case, the court did address the problems Tenpas encountered upon her return, as part of the prima facie determination about her exercise of protected conduct, taking medical leave.
Further, Tenpas asserts in her opening brief, "The Court incorrectly viewed the ability of Ms. Tenpas to exercise her 'retreat rights' and return [to] a faculty position as a kind of benefit provided for Tenpas by [the District] that tended to negate any retaliatory motive." There is no apparent dispute that (a) Tenpas retained her previously negotiated existing rights of retreat, but (b) exercising them would result in a reduced level of salary and retirement benefits. The District's respondent's brief states that it did not and does not rely on any performance-related reasons in deciding to renew Tenpas's administrator's contract for one year only, or in eliminating that administrative position. It is appropriate to address the parties' conflicting positions on the importance of job performance in connection with Tenpas's arguments on appeal that despite the District's protestations, the record shows that potential performance-related concerns may have arisen as part of the motivations for adverse and/or retaliatory employment conduct, as alleged. Regardless, our focus on review must be upon the District's process of elimination of her administrative deanship position, without any reference to her admitted, continued fitness for a faculty assignment.
B. Employer's Showing on Motion
The District's motion aimed to provide evidence "that there was a legitimate, nonretaliatory reason for the adverse employment action." (Loggins, supra, 151 Cal.App.4th at p. 1109.) If this burden of production can be carried, the courts do not presume retaliation occurred, and the employee bears the burden of supplying " 'substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual." (Ibid.)
The District provided declarations and deposition testimony from the MVC president, Dr. Mayo, and from three of its vice-presidents (sometimes referred to as the cabinet), about the decisionmaking process that led to the elimination of the TISS deanship. We discuss the showing made by the District in terms of not only the reasons it gave, but also the timing of its decisions with relation to the notification to Tenpas that the administrative position was being eliminated.
1. Administrative Reorganization
Dr. Mayo's declaration stated that during the summer of 2012, when she had just assumed the role of MVC president, she began to question whether the duties of the TISS deanship position should be consolidated into other positions. At other institutions where she had worked, decisions had been made to absorb the tasks of the technology and instructional support services position, such as managing the library, into a dean of instruction position, as a means of centralizing institutional management. She questioned whether the TISS deanship position was necessary. The District was experiencing budget issues and she wanted to use existing staff and resources to reorganize or consolidate duties at MVC. Early in 2013, Dr. Mayo consulted the vice-president of academic affairs, Dr. Steinback, on the issue of renewing Tenpas's TISS deanship contract for the next year. Dr. Steinback undertook to assess Tenpas's performance in her role of TISS dean.
The Student Success Act became effective on January 1, 2013. (Ed. Code, § 78210.) As stated in Education Code section 78211.5, the purpose of the legislation was to "increase California community college student access and success by providing effective core matriculation services, including orientation, assessment and placement, counseling, and other education planning services." This meant that new standards and requirements were being imposed on MVC, that would require expansion of its existing student services programs, through reallocation of resources from the academic affairs division. The District was also required to conduct institutional research to evaluate the effectiveness of the new student services programs.
Tenpas took her medical leave starting in March 2013. Because her deanship position was vacant, the District started the recruitment process in June 2013 for an interim TISS dean, and hired one in July 2013. However, at about the same time, Tenpas notified the District she was able to return to work and resumed her duties in mid-August 2013.
In March 2013, Dr. Mayo held a senior administrators' retreat for formal discussions on how the Act's mandates would be met, with attendees MVC academic affairs vice-presidents Steinback and Sandoval, and Norm Godin (vice-president of business services). One of the proposals dealt with Dr. Mayo's existing concerns about the TISS deanship duties and the requirements of the Act, to reorganize the administrative structure at MVC by transferring personnel and resources to student services.
More discussions on reorganization were held at another cabinet meeting in July 2013, when this group of senior administrators decided to recommend to the District that the TISS deanship position would be eliminated and its job requirements absorbed into other offices. The existing dean of instruction would supervise the library, tutorial services would report to the vice-president of student services, and the business services vice-president would supervise the instructional media center. There would be no pay raises for the recipients of these tasks.
While the administrators were having these ongoing discussions about administrative reorganization, Tenpas's contract was up for renewal in June 2013, in preparation for the upcoming school year. The administrators renewed Tenpas's TISS deanship employment contract for one year as of June 2013, while she was out on medical leave. Dr. Mayo believed that issuing Tenpas a one-year contract was proper because she wanted Tenpas to improve aspects of her performance in addressing MVC's technological needs, and Dr. Mayo considered the future of the TISS deanship position to be uncertain at the time. Tenpas did not notify the District that she was concerned about receiving only a one-year contract, as of the time she received it.
On December 11, 2013, Dr. Mayo notified Tenpas of the recommendations being made to the District to eliminate her TISS deanship position as part of an administrative reorganization. They exchanged e-mails about it that day. The District's vice chancellor sent Tenpas a letter on February 20, 2014, to confirm the District's board of trustees' determination not to re-employ her as TISS dean for the next year, but offering her a faculty position under her retreat rights. No showing has been made that the District has reinstated the TISS deanship position. According to Dr. Mayo, its duties are being performed by other administrators, without budgetary consequences.
According to Dr. Steinback, in early 2013, there was a vacant deanship position and the MVC administrators and vice-presidents were spread thin to cover all the necessary work. Dr. Steinback testified in her deposition that she thought an interim (not permanent) dean of institutional effectiveness was appointed in August 2014 and that a dean of career and technical education was appointed in April 2015. During 2014-2015, the District had established those two new deanship positions in partial response to the requirements of the Student Success Act. Business services vice-president Godin confirmed that the dean of career and technical education started at the District after the TISS position was eliminated. Overall, he believed that in 2016, there were more deanship positions than there were in 2013.
Dr. Sandoval testified that after the enactment of the Student Success Act, he understood that MVC would be getting additional state funding to be used for support staff and increasing counseling services. He did not discuss whether funding for administrative positions would be increased. Dr. Sandoval left the employ of the District in April 2014.
Tenpas argues from this evidence that her own position must have been eliminated on a pretext, since the District was able to appoint different deans later. However, she did not show that the duties for those positions were comparable or cost any particular sum, such that there must have been a retaliatory reason to reorganize her position out of existence. The trial court's ruling evaluated Tenpas's opposition in this respect as follows: "Plaintiff has not provided any specific or substantial evidence to show the . . . decisions were pretextual. Plaintiff attempts to cast doubt by claiming that an additional dean was hired within weeks of her being demoted and that there are more deans than there were in 2013. However, without more, this evidence does not support Plaintiff's contentions. Plaintiff has not provided any evidence regarding the job duties of these various deans or the means of funding/budget. More importantly, Plaintiff has presented no evidence that she was qualified or could otherwise perform the functions of these dean positions. Further, just because [the District] has more deans now, there is no evidence that Plaintiff's position was reinstated or how this fact evidences that [the District] actually eliminated the position in retaliation for her medical leave (or reasonable accommodation or harassment)."
2. Timing Factors
The District relies on evidence that it reached the decision to eliminate the TISS deanship over a period of about one and one-half years, to assert that it had no improper retaliatory purpose to force out Tenpas. With respect to the timing of its decision, it points out that although Tenpas apparently experienced a hostile environment at the Ben Clark Training Center, she did not file any reports or claims about it. Dr. Mayo did not recall that Tenpas had consulted her about it at the time, as Tenpas said. Dr. Briggs had responded to her concerns to some extent, and Tenpas was able to complete her six-month assignment there.
The District argues that its grant to Tenpas of medical leave, together with her recovery and ability to return to work, do not support inferences that retaliation nevertheless occurred. It asserts it had legitimate nondiscriminatory reasons for denying her the requested accommodation of working from home two days a week, because the TISS deanship position job description required on-site supervision of student and regular workers. According to Dr. Steinback, she had learned while working for a different district that a policy of allowing administrators to work from home could expose employers to liability, and she discouraged the practice, even though the human resources department asked her about it in this instance. In Dr. Mayo's experience, the nature of the deanship job, being in charge of a team of people who needed day-to-day supervision, required incumbents to be regularly physically available to staff on site.
The District started recruiting for an interim TISS dean in June and appointed one on July 22, 2013, to fulfill the duties that Tenpas was unable to carry out at the time, such as supervising workers on site. When Tenpas learned that the District was denying her request to work at home, based on its understanding of the TISS job description, she did not raise further objections at the time.
While Tenpas remained on leave, her employment contract for the TISS deanship position was renewed for the 2013-2014 school year only. Tenpas did not know of any written requirement that MVC administrators should receive a two-year contract, but had heard of only one other employee who received a one-year contract.
Although she was not scheduled to return until October, she started work again in August 2013 without requesting any further accommodations. She resumed her former TISS deanship duties. Since the District had hired a permanent MVC dean of instruction in May 2013, Tenpas was no longer serving as an interim in that position, upon her return from leave. The bare timing of these events does not support an inference that the granting of leave or the denial of the requested accommodation were retaliatory in nature.
To the extent that Tenpas claims that the District changed its attitude toward her and she began to experience a hostile work environment upon her return from medical leave, we disagree with her that the trial court's ruling failed to take those events into account. Rather, they were considered as part of the overall medical leave issue. In any event, a hostile work environment allegation must be supported by a showing that the terms and conditions of employment were materially adversely affected. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers).) The types of inconveniences that Tenpas reportedly suffered on her return to work were not objectively of comparably great magnitude (e.g., only being invited to attend meetings that included the associate deans, not higher level administrators).
Also, when Godin, the MVC vice-president of business services, recommended to the District that the campus shut down its public service television station, he testified that the reason for doing so was the excessive cost of replacement of its outdated equipment. During the shutdown, his department handled the removal of old televisions from the cafeteria area. At her deposition, Tenpas acknowledged that the decision to shut the station down was not personal to her, although she believed she should have been consulted and felt slighted when she was not. Such evidence falls short of demonstrating the District had a retaliatory animus toward her.
Tenpas next contends that it was retaliatory for the District to require her to perform a self-evaluation, upon her return from leave. The District cited to its management guidelines that set forth a schedule for management evaluations, providing they should be done annually the first two years of employment, with a comprehensive evaluation to be completed every three years. Apparently, the District did not always enforce its own requirements, but such evidence does not support a strong inference that the District was motivated to retaliate against Tenpas in asking her to complete a self-evaluation.
The showing set forth by the District was adequate to demonstrate it had substantive reasons for its administrative reorganization, eliminating the TISS deanship, that were facially unrelated to unlawful retaliation. (See Guz, supra, 24 Cal.4th at p. 358.) The burden was accordingly shifted to Tenpas to show that those articulated nonretaliatory reasons for its actions were merely pretextual.
C. Employee's Opposition to Motion
We examine the opposition provided by Tenpas on whether it amounted to " 'substantial responsive evidence' " that the employer's proffered reasons for the elimination of the administrative position were untrue or pretextual. (Loggins, supra, 151 Cal.App.4th at p. 1109.) Tenpas emphasized portions of the evidence from the District's officials, to argue the decisionmaking process that led to the elimination of the TISS deanship showed a pattern of retaliatory intent. She also contends that her own declaration and deposition testimony should independently suffice for denial of the District's motion, when construed liberally as required under summary judgment standards. (Wiener, supra, 32 Cal.4th at p. 1142 [court liberally construes opposing evidence]; see Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 [party " 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture' "].) In addition to addressing the District's given reasoning for and timing of its decisions with relation to the elimination of the TISS deanship, we discuss Tenpas's claims that the trial court omitted to rule on essential issues and evidence.
1. Administrative Reorganization
Tenpas was not privy to the discussions among the cabinet administrators that led to the decision to reorganize the divisions, which apparently extended from March through July and December 2013. She points out that she was the only dean whose position was eliminated, and argues the District was not acting as if it intended to eliminate the position when, in July 2013, it hired an interim TISS dean while her leave was ongoing. The duties of that position then included supervising up to 10 employees and student assistants at the instructional media center, and other full-time and part-time employees at the library. The District showed a legitimate reason to hire an interim dean of TISS, since there were existing duties that Tenpas could not fulfill while she was on medical leave. While Tenpas still had a contract to hold the position, and there had been no final decision or approval by the District's board to eliminate it, the hiring of an interim dean as a substitute does not alone show pretext.
To the extent that the District suggested that Dr. Mayo had begun thinking about reorganizing the administration when she started work in 2012, Tenpas claims that such an explanation is inconsistent with the District's reliance on the Student Success Act to explain the reorganization as a response to the imposition of new financial pressures. However, this argument does not account for the evidence on the complicated nature of the administrative decisionmaking and the inability of any one administrator to enact policy, without District approval.
Tenpas further argues that the cabinet members gave different explanations about their understandings of the financial consequences of the Act. According to Dr. Sandoval's deposition, MVC anticipated getting more state funding in connection with the Act, to increase the counseling services operations and support positions. The next year, the District was able to create two new deanships for divisions entitled "Institutional Effectiveness" and "Career and Technical Education." Tenpas contends that the District's failure to set forth more specific budgetary information about the Student Success Act undermines its claim that its enactment motivated any of the decisionmaking about administrative reorganization. Dr. Mayo's declaration stated that the TISS deanship duties were reallocated to existing administrative staff members, consistent with the lack of any known additional funding sources for administrative staff, as opposed to student services.
"Proof 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." (Guz, supra, 24 Cal.4th at p. 361; Batarse, supra, 209 Cal.App.4th 820, 834; Morgan, supra, 88 Cal.App.4th 52, 68.) The trial court was not persuaded by the arguments Tenpas made about pretext for eliminating the TISS deanship. There was no evidence supplied about the job duties of the newly appointed deans, the means of funding them, or Tenpas's qualifications for filling them. The new deanships were apparently designed to address different student needs.
The trial court found it significant that the TISS deanship was not reinstated, apparently because the duties had been otherwise distributed. We agree that the reallocation of the duties of the TISS deanship position to other current administrators' portfolios was shown by the District to be substantially responsive to the notice it received, about a need to reallocate available resources to student services, because of the demands of the Student Success Act. The District's evidence provided objective, not just subjective, criteria for its determination that the TISS deanship position should be eliminated. (Sandell, supra, 188 Cal.App.4th 297, 322.) Tenpas was not able to supply evidence that the elimination of the position was more significantly motivated by a plan to retaliate against Tenpas for taking leave in March 2013, or for her claims at different times of encountering a hostile work environment.
2. Timing Factors and Concerns About Job Performance
Tenpas points to several factors about the process of the District's decisionmaking as showing the timing was uncertain and amounts to evidence of a pretextual nature. Even though the District represents on appeal it is not relying on any failure by Tenpas to adequately perform the duties of the TISS deanship, Tenpas continues to argue that the evidence gave rise to inferences that she was retaliated against on performance grounds. For example, she had never received negative performance evaluations and was able to perform two full-time deanship positions for several months before she went out on medical leave (Ben Clark Training Center and MVC dean of instruction). When Tenpas was performing two deanship positions while at the Ben Clark Training Center, she said it was sometimes difficult to do day-to-day supervision of workers while she was not present on site, but generally it was not a serious concern. While acting as MVC dean of instruction, Tenpas supervised approximately eight individuals and her duties also included meeting with department chairs, scheduling classes and overseeing student registration.
The District's evidence included reported statements by Dr. Mayo that one of the reasons to give Tenpas only a one-year contract extension was to encourage her to work on her job performance, because a contract for only a year "provides the opportunity to get the attention of the employee that they must make some changes." Dr. Steinback testified at deposition that, based on her experience elsewhere, granting a one-year contract to an administrator could reasonably be interpreted as being a signal that the employee should look into getting another job.
Tenpas thus contends that the mid-2013 renewal of her contract for only one year shows the pretextual nature of the administrative reorganization. Although the reorganization was discussed at a cabinet meeting in May 2013, and again in July 2013, its status was still that of a recommendation to the District's board, until December 2013 and the confirmation letter to Tenpas in February 2014. The contract itself showed that the District retained discretion to decide whether to renew an administrator's contract. The District thus outlined some neutral reasons for making the decision about reorganization in phases, based on the administrative structure of the District, and the grant of a one-year contract renewal is not persuasive evidence that retaliation was taking place.
Tenpas also points to the circumstances of her return from medical leave in August 2013, when she found logistical difficulties that she viewed as harassment or a hostile work environment (inoperative voicemail, another person's business cards in her office, name removed from website, etc.). Her office conditions were less favorable than when she left, even though she otherwise had the same professional qualifications and previously had been paid extra for performing extra work at the same level. Tenpas also relies to some extent on a theory that she was retaliated against for reporting, around December 2012, that she encountered harassing conduct at the Ben Clark Training Center. She argues that the trial court failed to recognize that the District's treatment of her in these respects was retaliatory, giving rise to reasonable inferences that the elimination of her administrative position was unwarranted by any performance or planning concerns.
An employee claiming harassment based on a hostile work environment must show that the conduct complained of was so severe and pervasive as to alter the conditions of employment, based upon "the totality of the circumstances." (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.) In retaliation or discrimination cases, "[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940[, subdivision] (a) and 12940[, subdivision] (h)." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055.) "[T]he significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee." (Id. at p. 1055.)
Under these standards, the incidents Tenpas relied upon to show retaliatory intent do not demonstrate the existence of triable material issues of fact. (Akers, supra, 95 Cal.App.4th 1441, 1455 ["[T]o be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff's employment. A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient."].) The trial court adequately considered the August 2013 allegations in terms of the prima facie showing, and there was no erroneous disregard of those claims.
3. Denial of Reasonable Medical Accommodation
Once Tenpas inquired about a reasonable accommodation while on leave, the District informed her that she needed to submit information from her doctor regarding work restrictions. The request was denied after the human resources department's staff consulted with Dr. Mayo and Dr. Steinback, who each took the view that the TISS deanship position required the dean to be on site while supervising employees and interacting with other faculty and staff. The job description required the incumbent to supervise and direct employees and faculty in an interactive manner.
Tenpas contends the court erroneously failed to make sufficient findings on the retaliatory nature of the denial of her request for reasonable medical accommodation to return to work at home two days a week and to limit her hours. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971 ["[E]lements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.' "].) In her view, she had already been working remotely to supervise employees, with District approval, while she was carrying two deanships and could not be physically present at both the MVC and Ben Clark Training Center campuses. She learned that Godin, the vice-president for business services, had been allowed to work from home for a few weeks while recovering from surgery several years ago.
Also to show retaliation occurred, Tenpas relies on the temporal proximity of events that occurred in June 2013 while she was on leave, (a) Dr. Mayo's decision to deny her accommodation request, (b) the renewal of her contract only for a shortened one-year period and (c) the recruitment of an interim TISS dean. Temporal proximity, without more support from other evidence, is insufficient to establish pretext for an adverse employment decision. (Loggins, supra, 151 Cal.App.4th 1102, 1112-1113; Arteaga, supra, 163 Cal.App.4th 327, 353-354.)
Because the relevant circumstances included the District's approval of her medical leave for the six to seven month period requested, and her decision to return to work before that period expired, it is difficult to conclude that there was an actionable failure to make reasonable accommodations for her disability. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 [keeping employee's position open while return is foreseeable and likely to occur may be enough of a reasonable accommodation].) Tenpas did not present any evidence that sufficiently connected her request for accommodation with the administrative decision to eliminate the TISS deanship position. It is not enough for her to speculate about discriminatory motives or to deny the credibility of the employer's witnesses. (Loggins, supra, 151 Cal.App.4th 1102, 1110-1113.) Overall, her showing against the FEHA portion of the summary judgment motion remained "too weak to raise a rational inference that discrimination occurred." (Guz, supra, 24 Cal.4th at p. 362; see Hersant, supra, 57 Cal.App.4th at pp. 1004-1005 [key issue is whether employer's motivation for its decision was discriminatory animus, not whether the decision seems wise].)
III
SECOND CAUSE OF ACTION: LABOR CODE SECTION 1102 .5 RETALIATION
Labor Code section 1102.5, subdivision (b) precludes an employer from retaliating against an employee for disclosing information to a superior or to a governmental agency, concerning facts which the employee has reasonable cause to believe disclose a violation of state or federal statute, or noncompliance with a state or federal rule or regulation. Labor Code section 1102.5, subdivision (c) likewise precludes an employer from retaliating against an employee for refusing to participate in an activity that would violate state or federal statutes, or would be in noncompliance with state or federal rules or regulations. The evident purpose of these provisions "is to 'encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287.)
Tenpas contends the trial court erroneously found that the letters written by her attorney to District officials in January 2014, and in February 2014 to the District's outside counsel, failed to amount to substantial compliance with governmental claims requirements. (§ 810 et seq.) She further argues that the trial court inadequately addressed the issues of statutory waiver and estoppel under applicable provisions of that statutory scheme. (§§ 910.8, 911.)
Further, assuming substantial claims compliance could be found, Tenpas argues that the District failed to bring forward clear and convincing evidence that the adverse job action would have occurred for a legitimate, independent reason, even if she had not engaged in the protected conduct of whistleblowing on federal immigration issues. (Lab. Code, § 1102.6 [clear and convincing evidence standard applies to causation questions under related Lab. Code, § 1102.5].) We discuss each aspect of the ruling granting summary judgment on this claim.
A. Relevant Facts
In November 2013, Tenpas engaged in a dialogue with then-academic vice-president Dr. Sandoval, when he requested that she look into hiring a student worker who was coming to MVC from another District training center. As already described, Tenpas sent him an e-mail on November 26, 2013, telling him that her information was that "Marissa" did not have any picture identification or social security number on file, and she questioned him about whether the student was therefore unable to present proper work authorization papers as of the time of hiring. By e-mail dated the same day, Dr. Sandoval agreed with Tenpas that no exceptions should be made to applicable hiring laws, and he expressed confusion on why the student worker did not have proper identification documents, since she had previously worked for the District elsewhere. These e-mails did not expressly use the term "immigration issue" in discussing the hiring process. The same day, the District's student employment office sent an e-mail to both Dr. Sandoval and Tenpas, telling them that the office had Marissa's social security number on file.
At deposition, Tenpas was asked whether she believed that Dr. Sandoval had retaliated against her because of the issues raised about hiring Marissa. Tenpas responded, "No, I think he was angry with me for pointing out that it was possible that this could be an immigration issue." Tenpas now contends that this answer did not amount to any kind of concession that she was not claiming retaliation occurred against her for her insistence on compliance with applicable hiring laws, within the meaning of the whistleblower statutory scheme. Instead, she continues to argue that the nonrenewal of her TISS deanship was in part attributable to her voicing of concerns about the District's compliance with immigration law.
B. Claims Requirements; Provisions for Waiver
Under section 915, subdivision (a): "A claim . . . shall be presented to a local public entity by either of the following means: [¶] (1) Delivering it to the clerk, secretary or auditor thereof. [¶] (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office." After Tenpas received the December 2013 notice from Dr. Mayo that her TISS deanship contract was not being renewed, her attorney wrote the first of two letters to the District on January 14, 2014, explaining her views that the elimination of her position through reorganization amounted to an adverse employment action, because she would be retained in some employment but only at a substantially reduced salary and retirement entitlements. This letter was sent to the MVC president, Dr. Mayo, and to the president of the District's board of trustees. The District hired outside counsel to respond to her attorney's initial letter to the District, and that firm directed that further communications occur between counsel.
Pursuant to section 915, subdivision (a), a plaintiff bears the burden of ensuring that the claim is presented to the appropriate public entity, and to the proper recipients (by "(2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office"). (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991-992.) Summary judgment for the public entity is proper if that burden is not met. (Id. at pp. 991-993.)
In both the first letter and in a second, dated February 24, 2014 (now addressed to counsel for the District), her attorney requested an informal resolution of the matter, such as creation of a new job description and salary level, without the need for a formal complaint and possible litigation. Tenpas argues that the District recognized the initial letter as a governmental tort claim. She points out that the letter gave details about the District's adverse employment action against her, argued that violations of law had occurred, and identified a potential damages amount, in the form of her "substantially reduced salary and with a dramatic reduction in future benefit entitlements," if she agreed to exercise her retreat rights.
Next, her attorney's second letter continued the same discussion, indicating that no resolution had been reached, although further discussions were invited on the proposals by Tenpas that a new job description should be created for her to include some of the administrative duties that would justify a higher salary, without significant diminution from a dean's salary level. Counsel's second letter was answered by the District's attorney by declining to create a new job description, and reiterating to Tenpas that she had been given notice of what her assignment would be if she chose to exercise her retreat rights.
The trial court ruled that the January and February 2014 letters her attorney sent to the District were inadequate to show she had substantially complied with governmental claims requirements. (§ 810 et seq.) The letters did not present any precise claim for monetary damages or any estimate of the amount of prospective injury or loss. The attorney's letters chiefly requested negotiation of an ongoing dispute, rather than constituting a claim for damages that had been presented.
The court then declined to find the District was placed under a duty to notify Tenpas of the inadequacies in her "claim as presented," pursuant to sections 910.8 and 911. The Labor Code section 1102.5 claim was deemed to be barred by governmental claims requirements.
Tenpas objects to this ruling, on the ground that the letters adequately set forth her position that she was making a claim, and contained the relevant information to allow the District to be able to investigate it, even though she was still an employee under her retreat rights and she remained open to negotiation. Under section 910, subdivision (f), a claim must not list a dollar amount if more than $10,000 will be at issue. The relevant inquiry is whether the communication "disclosed to the [state entity] that they had a claim against it which, if not satisfactorily resolved, would result in their filing a lawsuit." (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 709-710 (Phillips).)
As explained in Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1354 (Green), when a submitted claim for damages fails to comply substantially with statutory requirements, the public entity has a duty under sections 910.8 and 911 to notify the potential claimant of the claim's insufficiency, with particularity. However, the contents of the claim must be clearly set forth to impose a statutory duty on the entity to give written notice of any apparent defects. (§§ 910.8, 911.) If such notice is required but not given, the public entity is deemed to have waived its defenses as to the sufficiency of the claim, based upon such defect or omission.
Also in Green, supra, 34 Cal.App.4th 1348, the court analyzed earlier cases (including Phillips, supra, 49 Cal.3d 699) and enunciated "the following legal standard to apply in determining whether correspondence is a claim that triggers the notice-waiver provisions of the Act. We hold that to be sufficient to constitute a trigger-claim under section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation." (Green, supra, at p. 1358.)
Utilizing this standard, it is not reasonably possible to read Tenpas's attorney's letters as strongly implying that litigation will follow if the parties cannot satisfactorily resolve the matter. (Green, supra, 34 Cal.App.4th 1348, 1358-1359.) From the letters, it is not "readily discernible that appellant was making a compensable claim against the District or that the failure to satisfy it would result in litigation." (Id. at p. 1359.) Tenpas was still a faculty employee at the time and apparently wanted to remain so, and the letters were mainly asking for internal District remedies, such as reclassification or reassignment.
On these limited issues about claims requirements, the trial court was correct in determining that there was no substantial compliance in presenting a recognizable claim, and that the District had not waived its objections to the inadequacy of the letter as a claim. The whistleblower portion of the lawsuit was accordingly barred. However, the trial court went on to determine that even if it could be assumed that substantial compliance with claims requirements had occurred, no triable issues remained about this type of alleged retaliation.
C. Analysis
As did the trial court, we address the validity of this cause of action as a whole, under the applicable standards. The trial court's ruling acknowledged that the evidence in the e-mails between Tenpas, Dr. Sandoval, and the student employment office about "Marissa" did not mention the term "immigration," but it nevertheless operated to raise factual issues about whether the student was currently known to be authorized to work at that time, pursuant to state and federal regulations.
Despite that finding, which was analogous to a prima facie case determination on the FEHA cause of action, the trial court concluded that the same reasons that the District had set forth, on its legitimate nondiscriminatory reasons for the termination of the TISS deanship position, were equally applicable here. The District adequately showed that Tenpas's administrative deanship contract would not have been renewed, even absent any such engaging in the protected activity of whistleblowing, because of the proven rationale by the District that it needed to reallocate resources in that manner. It had determined the TISS deanship was no longer essential or beneficial to the operation of MVC. In testifying that she believed Dr. Sandoval was unhappy or angry with her about the hiring process, Tenpas had failed to show that he or others were responsible for retaliating against her. Also, Tenpas was not able to substantiate that she had a reasonable belief that immigration violations were occurring, merely because Marissa was applying to be transferred within the District and her papers were not on file with one department or another. Within the same day that Tenpas raised her objections by e-mailing Dr. Sandoval, the student employment office confirmed that Marissa had a Social Security number on file.
In conclusion, the District set forth legitimate nonretaliatory reasons for the alleged actions taken against Tenpas, and the trial court correctly ruled that there was no "substantial or specific evidence creating a triable issue of fact that the decisions of [the District] were pretextual" relative to the whistleblower actions. (Batarse, supra, 209 Cal.App.4th 820, 834 [burden on plaintiff to establish either that the employer's proffered explanation " ' "is unworthy of credence" ' " or that " ' "a discriminatory reason more likely motivated [employer]." ' "].)
DISPOSITION
Summary judgment is affirmed. Each party to bear its own costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. HALLER, J.