NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-15-545484)
Byron Gill, an African-American, began employment with the City and County of San Francisco (City) in 1996, working as a gardener. In 2013, Gill sought a promotion to district captain, without success, and then filed a complaint with the California Department of Fair Employment and Housing (DFEH). And in 2015, while still employed by the City, Gill filed a complaint against it, alleging race discrimination and retaliation, essentially arguing, as his brief puts it, that after his DFEH complaint "the City found fault with almost everything he did on the job, suspended him for minor rule violations not enforced against other workers, passed him over for promotion, and even refused to allow him to transfer away from the supervisors who were making his work life miserable."
The City brought a motion for summary judgment or, in the alternative, summary adjudication. The trial court granted summary adjudication on the discrimination claim, but denied the motion on the retaliation claim, which proceeded to a jury trial. The jury returned a verdict for the City, and Gill appeals, asserting essentially that the trial court committed prejudicial error by denying his motion to amend made late in the trial and excluding from the jury's consideration some employment actions Gill asserts were adverse. We conclude that Gill has failed to demonstrate error in any of the trial court rulings, and we affirm.
Gill, and His Complaint
Gill was hired by the City in 1996, and has worked as a gardener in the Recreation and Parks Department (RPD). In April 2015, Gill filed a complaint naming one defendant, the City, and alleging two causes of action: (1) discrimination in violation of the Fair Employment and Housing Act (FEHA), and (2) retaliation in violation of FEHA. His essential allegations are that he is African-American; that at all times he was an exemplary employee at RPD; that in June 2011, he submitted a district captain interest form, seeking to apply for a district captain position, but no one was hired for the complex at which Gill worked; that in April 2013, a "junior co-worker, Michelle Pallavicini" was appointed district captain without there being an open promotion procedure, an appointment that discriminated against him; that in May 2013, he filed a complaint with the DFEH; and that he was thereafter retaliated against in many ways, illustrations of which were set forth in 15 paragraphs.
The City's Motion for Summary Judgment/Summary Adjudication
In January 2016, the City filed a motion for summary judgment or, in the alternative, summary adjudication. Gill filed opposition, which included a three and one-half page declaration of Gill, which had attachments totaling 65 more pages. Following the City's reply, the motion came on for hearing on March 25, at which the trial court indicated it would adopt its tentative ruling, granting the motion as to the discrimination claim and denying it as to the retaliation claim.
On April 13, the trial court filed its order—an order, not incidentally, prepared by Gill's attorney—that provided in its substantive entirety as follows:
"Defendant CCSF's motion for summary judgment is granted as to plaintiff's first cause of action for race discrimination and denied as to his second cause of action for retaliation. Defendant satisfied its burden of showing no evidence of a discriminatory motive by defendant and plaintiff did not present any evidence creating a triable issue on that point. [Citations] contained [in] Defendant's Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication.
"There are triable issues as to all the elements of a prima facie case for retaliation, whether defendant took the adverse employment actions taken against plaintiff after he filed his 2013 DFEH complaint for legitimate non-retaliatory reasons and whether those reasons are pretextual. [Citations] (knowledge of Plaintiff's DFEH and EEO claims), [citations] (Rebutting Defendant's Reasons), [citations] (Pretext) contained in Separate Statement of Disputed Material Facts by Plaintiff in Opposition to Defendant's Motion for Summary Judgment."
The Retaliation Claim Goes to Trial
Gill's claim for retaliation proceeded to a jury trial, presided over by a most experienced trial judge, the Honorable Suzanne R. Bolanos. The trial began on April 25, 2016, and the issue here first surfaced on April 27, in the hearing on motions in limine, in one of which the City moved to exclude evidence of claimed wrongs suffered by Gill that did not rise to the level of adverse employment actions. Specifically, the City sought to preclude Gill from arguing that the RPD's denial of his January 2015 attempt to transfer to another work location and the removal of some of his tools were adverse employment actions. Judge Bolanos heard extensive argument on this, at the conclusion of which she said: "[T]he evidence has to be evaluated in terms of the totality of the circumstances. So it is difficult at this juncture to actually rule on as a matter of law that the denial of the tools is an adverse employment action, but the denial of a transfer is not. Vice Versa. So I will have to evaluate the evidence as it comes in on this and then we'll have further discussions about this before it goes to the jury."
And so the evidence began, to be introduced over six trial days, during which Gill put on seven witnesses and over 50 exhibits were introduced. The evidence was extensive, but most of it is not pertinent to the issue before us, and we will not set it out in detail. Rather, we summarize the respective positions, some of which we quote from the parties' briefs, starting with Gill's.
Gill put on evidence that he had a "long, outstanding service record as a City gardener," including that he "worked as a groundskeeper at professional baseball and football games at Candlestick Park for many years, handled every phase of gardening at some of the City's most challenging parks, and served as lead gardener and acting supervisor for 11 years prior to 2013." Gill also claimed that the parks under his care received superior evaluations, and that prior to 2014 he personally had received only positive evaluations.
Gill's evidence also included that in 2011 he had submitted an "interest" form to be a district captain; and that the City denied him, leaving the position unfilled. Then, in 2013, Gill again applied for a captain position. This time, the City filled the position, with Gill's supervisor Adrian Field selecting Michelle Pallavicini, someone Gill claimed was less qualified.
Following Pallavicini's appointment, Gill filed a complaint with the DFEH claiming race discrimination, following which the City retaliated against him in many ways: yelling at him; changing the parks at which he worked; increasing the RPD's "scrutiny" of him; and "papering [him] with an unusually high number of counseling memoranda." He also claimed that the City refused to provide him tools, equipment, and supplies—indeed, that Pallavicini actually took tools from his cargo container. Gill's evidence also included a September 26, 2014 annual evaluation by Field (for fiscal year 2013) that ranked Gill "1.5" overall, the effect of which was that he was precluded from transferring to another park.
In April 2015, Gill filed an Equal Employment Opportunity (EEO) charge of retaliation with the City. Also that month, Gill submitted another DFEH claim for discrimination and retaliation. The following month, May, Pallavicini took away Gill's work truck, and then, according to Gill, improperly suspended him from using his own truck. That same month, Pallavicini prepared a performance improvement plan (PIP) for Gill that included strict requirements for taking breaks, talking to the public and co-workers, lateness and absences.
Pallavicini issued similar PIPs in November 2015 and February 2016.
In June 2015, Pallavicini issued a notice of proposed disciplinary action that contained proposed discipline based on violations that were not imposed on other gardeners. The City also rejected his request for reassignment to Glen Park, based on a blanket rule that allowed the City to override seniority. And Pallavicini gave Gill a performance evaluation with an overall rating of "1."
Finally, in January 2016, the City threatened Gill with a 20-day suspension, for, in Gill's words, "minor offenses of a type not brought against any other gardeners." In April 2016, the City suspended him for 20 days.
The City, of course, had a version of events that told a different story, a story that begins with Gill's assignments, and the parks at which he worked. That is, Gill was a gardener in the Hunter's Point area, and was then moved to the Mission area, also known as the Park Section area, where he was specifically assigned to James Rolph Park and Garfield Park. His supervisor was Field, the Park Section supervisor. Field testified that from approximately 2007 to 2012 he was not very focused on the details of Gill's work performance, as the maintenance of Rolph Park and Garfield Park was not a priority. However, beginning in mid-2013, RPD management directed that there be increased focus on the maintenance of Rolph Park for two reasons: (1) the renovation of the baseball diamonds and field led to an increase of permits and activity there; and (2) the clubhouse began to be used for preschool and after-school activities. Field thus decided to reduce Gill's responsibility so he could focus on Rolph Park, and substituted Mission Recreation Center, a small facility, in place of Garfield Park. And, as Pallavicini, Field, and others would testify, Gill's performance at Rolph Park did not measure up.
The City's evidence included many memoranda between September 2013 and May 2014 instructing that Gill complete specific maintenance at Rolph Park, instructions that Gill failed to meet in numerous ways. These included that Gill failed to: weed and trim shrubs and overgrowth; clean debris and trash; check and maintain the irrigation system and irrigate appropriately; and report alcohol and drug use and graffiti. Illustrations of the City's position included a November 19, 2013 counseling memorandum from Field for unsatisfactory conditions at Rolph Park, attached to which was an October 28 memorandum that listed eight items of maintenance for Gill's immediate attention, and a November 5 memorandum noting that he had not completed any of the items in the October 28 memorandum. The counseling memorandum set forth several examples where Field had asked that Gill complete specified work assignments as a priority that he had failed to do.
Gill took issue with Field's criticisms, which led to a series of correspondence between them about Gill's performance. Meanwhile, Field's concerns continued, and he sent Gill similar counseling memoranda in March, May, and August 2014.
The City's evidence also included memoranda manifesting concern about Gill's excessive absenteeism, and another memorandum discussing what the City claimed was the unusually high level of sick leave days the previous year.
As noted, Pallavicini had become Gill's supervisor and in her performance review for fiscal year 2014-2015 gave Gill an overall performance rating of "1." The review specifically mentioned that Gill failed to notice and report features in poor or failing condition at Rolph Park, that he was observed routinely exceeding scheduled break time policies, and that the quantity, and quality, of his work product was below standards.
This led to Gill being placed on a PIP, which set forth several instances of poor performance, not to mention affirmative misconduct from May to October 2015. These included that during June and July the GPS tracking on Gill's vehicle indicated he was present at unknown locations for extended periods of time and parked at facilities for lengthy periods when he was not scheduled to be at that facility; that he refused to accept direction from his supervisor or manager; and that he ignored his supervisor's request to move equipment into onsite containers. The PIP also mentioned consistent tardiness.
The City's evidence also included the reasons for Pallavicini's June 4, 2015 written reprimand for Gill's insubordinate behavior in May: his repeated neglect of Pallavicini's directives regarding how Gill was to conduct his duties.
On August 14, 2015, the City served Gill a notice of suspension for 10 days, including, among other charges, for insubordination. These charges were based on a pattern of conduct culminating in an incident on June 2 in which Gill parked his personal vehicle on the turf at Rolph Park despite a written directive to never do so, and that Gill refused to remove it, despite specific direction to do so.
On January 26, 2016, the City served Gill a 20-day suspension for failing to adhere to his PIP, insubordination, and dishonesty.
The City's evidence also included the reason Gill was not selected for district captain in 2013 and why Pallavicini—highly recommended for the position—was: her qualifications and work performance, as she had exhibited an excellent work ethic, had past supervisory experience outside the RPD, and was selected for the "William Hammond Hall" award, the highest honor given to a gardener, a selection made jointly by Local 61 and the RPD.
Finally, both Field and Pallavicini testified that Gill's filing of a May 2013 DFEH charge had no bearing on their actions towards him. Although both Field and Pallavicini had heard that Gill had filed a complaint in 2013, Pallavicini was unaware it was a DFEH complaint.
As indicated above, at the conclusion of the hearing on motions in limine, the question of what was, or was not, an adverse action was left for trial. On May 6, the sixth day of trial, a related issue came up, in the course of a session addressing jury instructions, when Gill argued that in addition to the May 2013 DFEH complaint, the jury should be allowed to consider Gill's April 2015 DFEH complaint as protected activity for purposes of the jury instruction defining retaliation. The City objected, arguing that Gill's complaint—filed a mere two days after the April 2015 complaint—failed to allege any facts supporting this argument. The City also contended that because of this, it did not address the issue in its motion for summary adjudication. In response, Gill's attorney stated that Gill had the right to bring a separate action alleging the April 2015 DFEH charge as an operative protected activity for a future claim. Judge Bolanos agreed, and also noted that the order on the City's motion—as noted, prepared by Gill's attorney—specifically referenced the 2013 DFEH complaint as the protected activity, not the 2015 DFEH complaint. Following all that, Gill's attorney moved to amend the complaint to include the April 2015 DFEH charge as a protected activity. Judge Bolanos denied it.
On May 9, Gill submitted a supplemental trial brief, arguing that the jury should be allowed to consider: (1) the April 2015 EEO complaint and the April 2015 DFEH charge as protected activities for purposes of his retaliation claim; and (2) a list of 15 alleged workplace wrongs as adverse employment actions. That day, Judge Bolanos heard argument on the first item, and after considering the briefing and additional argument, again determined that Gill's claim of protected conduct was limited to the 2013 DFEH charge, again noting that there was no allegation in the complaint that Gill was retaliated against based on the filing of the 2015 DFEH charge, and that the City could not have addressed this claim on summary judgment.
After the close of evidence, Judge Bolanos then considered the second item in Gill's supplemental brief, his position that the jury consider all of the allegedly adverse employment actions in support of his retaliation claim. Doing so, she initially noted as follows: "Well, I think the jury needs some guidance because these 15 separate bullet points are not all adverse employment actions related to the May 2013 DFEH complaint. [¶] So I understand that your theory is that it was a combination of different actions, and so for that reason, I am not going to define a specific action for the jury, and I will let you argue it to them. But the flip side of that is that we can't just throw a list of 15 different items, some of which are clearly not related to the protected activity, and let them wildly speculate."
Judge Bolanos then heard argument for an additional 37 pages that day, in the course of which she did some research during a break. The argument continued for the next day, May 10. Following all that, Judge Bolanos ruled that three specific claims of adverse employment actions would go to the jury: (1) Field's increased monitoring of Gill beginning in Fall 2013; (2) the denial of Gill's request for transfer in January 2015; and (3) the 1.5 performance appraisal report in September 2014.
The closing arguments took place that same day, May 10. And following concluding instructions, the case was in the hands of the jury at 12:20 p.m. Shortly after returning from lunch, the jury sent a question to Judge Bolanos that read as follows: "City's Agenda question: [¶] We need clarification on the City's 3 points[:] 1) Increase monitoring by Adrian Field[;] 2) 2013-2014 P-Par rating of 1.5. 3) Denial for bid to transfer. Is this a direction from the court that those are the only things we can consider as adverse employment options that we can consider."
Following discussion with counsel, Judge Bolanos responded with this hand-written answer: "Dear Jurors: It is a question of fact for you to determine whether any or all of the actions listed above are adverse employment actions. These are the only potential adverse employment actions before you. With regard to the first point, 'Increased monitoring by Adrian Field,' this includes visits, photos and/or interruption of projects by or at the direction of Adrian Field. [¶] Thank you. [¶] Judge Bolanos."
After some four and one-half hours of deliberation, the jury returned its verdict early the next day. The jury found that Gill had engaged in protected activity and had suffered adverse employment actions. But the jury answered "No" to the question of whether Gill's 2013 complaint to the DFEH was a substantial motivating reason for the City's behavior.
Gill's notice of appeal states that he appeals both the jury verdict and the order granting summary adjudication on the discrimination claim. Gill's brief has no argument addressing the discrimination claim, and we thus treat the issue waived. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' [Citation.]" (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523; accord, People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1200; Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1411, 1416.)
The Law of Retaliation
Government Code section 12940, subdivision (h), makes it illegal "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." "[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ' " 'drops out of the picture,' " ' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); accord, Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476; see generally CACI No. 2504.)
Element No. 3 of the prima facie case requires that the protected activity be a substantial motivating reason for the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479.)
Gill's Argument, and the Standard of Review
Gill's brief lists one argument, which is this: "This court should reverse the judgment as to the retaliation cause of action." The argument begins with a brief statement of the claimed standard of review, followed by a brief discussion of the "legal standards for retaliation." The argument then asserts this: "The jury found that the City took adverse employment action against Gill by (1) Adrian Field's increased monitoring, (2) the 2013-2014 PPAR rating of 1.5, and/or (3) denial of Gill's bid for a transfer. The jury was not allowed to consider other adverse employment actions against Gill, including: subjecting him to discipline for minor offenses for which other gardeners received little or no discipline, taking away his work vehicle, skipping his turn for overtime, suspending him in 2015, passing him over for a captain position, and imposing an additional suspension in 2016." And the argument continues: "3. Causal Link [¶] Based on the trial court's limitations on the evidence the jury was allowed to consider, the jury was unable to find that the City's adverse employment actions were causally linked to Gill's protected activity. A complete new trial is required because the jury was not permitted to consider all the relevant evidence of protected activities and adverse employment actions."
Apparently changing subjects, Gill's argument then asserts that Judge Bolanos "fatally prejudiced Gill's case by precluding him from offering his January 2015 EEO Complaint, and April 2015 DFEH Complaint as additional protected activities. The Court also refused to allow Gill to [sic] leave to amend the complaint to specify that the 2015 DFEH complaint was a protected activity for purposes of the retaliation cause of action."
Then returning to claimed adverse employment actions, Gill's argument concludes that the jury should have been allowed to consider 12 additional items as potential adverse employment actions.
As to how we review Gill's argument, he asserts our review is de novo, arguing that Judge Bolanos erred "in questions of law." The City contends we apply an abuse of discretion standard, as Gill challenges rulings that decided what "claims were permitted to go to the jury, the form of jury instructions, and the admissibility of evidence."
We fundamentally agree with the City, as evidentiary rulings are reviewed for abuse of discretion, though instruction errors are not. But we see no error, regardless of what standard of review we use.
Gill Demonstrates No Error
The Denial of the Amendment Was Not an Abuse of Discretion
As indicated, on May 6, Gill made an oral motion to amend, to include his April 2015 DFEH claim as a protected activity for purposes of the jury instructions, a position also asserted in his May 9 supplemental trial brief. Judge Bolanos denied it, because the proposed amendment involved new facts and legal theories, and would have prejudiced the City in its ability to defend itself against matters on which it had not had an opportunity to conduct discovery or prepare for trial.
The statutes authorizing amendment of pleadings are "construed liberally so that cases might be tried upon their merits in one trial where no prejudice to the opposing party or parties is demonstrated." (Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254; Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.) This liberal policy applies to amendments " 'at any stage of the proceedings, up to and including trial,' " but with one caveat—it must be without prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; see Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354-355.)
So, the principle favoring Gill, liberality in amendment, is offset by the principle favoring the City, prejudice. And resolution of the competing interests rests in the sound discretion of the trial court, and is subject to reversal only for abuse of that discretion. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 383; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378.) Gill has shown none.
Rejecting Gill's oral motion to amend, Judge Bolanos noted that the order denying the City's motion for summary adjudication of the retaliation claim—drafted, as noted, by Gill's attorney—specifically identified the 2013 DFEH charge as the only operative protected activity; that Gill had not alleged in his complaint that he had suffered retaliation for filing the 2015 charge; and that all of the acts Gill alleged in his complaint predated the April 2015 DFEH charge.
In this last regard, we note that at the time he filed his complaint, Gill could not have established the required causal link for his retaliation claim. Gill filed his complaint only two days after he filed his April 2015 DFEH complaint, some two weeks after he filed his EEO claim with the City. And most of the allegedly adverse employment actions Gill challenged had already occurred by the time Gill filed his 2015 DFEH charge. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614-615 [adverse employment action must come after the complaint].)
Finally, Judge Bolanos noted that not only could Gill bring a second lawsuit based on the April 2015 protected activity, but that the amendment would have prejudiced the City by denying it the opportunity to conduct discovery specifically on how Gill was retaliated against for filing the 2015 DFEH charge.
Superimposed on all this is the timing of Gill's motion, made late in the trial, which delay is a valid reason to deny any amendment. As one court put it, " ' "[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial." ' " (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097; Duchrow v. Forrest, supra, 215 Cal.App.4th at pp. 1377-1378; P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; see also City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1564 ["A party who waits 18 months before attempting to amend, and then does so only after trial has commenced, and who offers no excuse for the failure, can hardly complain when the request to amend is denied."].)
Finally, we note that it is difficult to see how the refusal to allow Gill to assert two new claimed protected activities could have been prejudicial, as his case did not founder on his inability to show that element of his retaliation claim. To the contrary, he lost because he could not prove causation.
Judge Bolanos Ruled Correctly as to the Specific Claims of Adverse Employment Actions
Gill's remaining argument addresses 12 specific items of evidence that Judge Bolanos ruled would not be considered adverse employment actions—items, we conclude, Judge Bolanos ruled on properly. Before discussing why, we briefly set forth some applicable legal principles, beginning with this from Yanowitz, supra, 36 Cal.4th at pp. 1054-1055: "As the high court recognized in Harris [v. Forklift Systems, Inc. (1993) 510 U.S. 17], the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor 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 or 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(a) and 12940(h)." Or, as Yanowitz earlier described it, in discussing Title VII, an "employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity." (Id. at p. 1051.)
CACI No. 2509 provides:
"[Name of plaintiff] must prove that [he/she] was subjected to an adverse employment action.
"Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]'s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action."
In Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511, the court noted that " '[w]ork places 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.' " The court continued, an adverse employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits [or] significantly diminished material responsibilities . . . .' [Citation.] The employment action must be both detrimental and substantial." (Ibid.; accord Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 ["Not every change in the conditions of employment, however, constitutes an adverse employment action. ' "A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." . . .' "].)
In light of that law, we set forth the 12 items that Gill claims the jury should have been allowed to consider—and why Judge Bolanos ruled on them properly. The items are set forth in boldface, using the exact descriptive language in Gill's brief:
August 2013—taking tools out of cargo container—3 months to replace them
The evidence on this was that Pallavicini cleaned out Gill's tool container because it was in disarray, taking tools that were broken and installing a tool rack. And as Gill concedes, any tools that were taken were replaced three months later. Judge Bolanos ruled that Gill could not argue this as an adverse employment action, noting that there was no evidence Gill suffered any job consequence because Pallavicini took some of his tools.
September 1, 2013—changed assignment—took away Garfield Park
As noted, the evidence on this claim was that Gill's assignment was reduced in September 2013, and Gill's work area limited to Rolph Park and the smaller Mission Recreation Center, instead of both Rolph Park and Garfield Park. Judge Bolanos determined that "there's no evidence to support the notion that reducing [Gill's] scope of responsibility from two parks to one park was somehow an adverse employment action. So that cannot be argued to the jury."
September 2013 to October 2014—counseling memos
Gill argued that the jury should be allowed to consider some memoranda written by Field to Gill regarding work tasks (sometimes referred to as "instructional" memos during trial). Judge Bolanos noted that these memoranda were not adverse employment actions, as they simply identified "[p]riority tasks" for Gill to complete. Doing so, Judge Bolanos heard extensive argument on this issue and considered both Yanowitz and Sanchez v. California (E.D. Cal. 2015) 90 F.Supp.3d 1036 in holding that instructional and counseling memoranda were not adverse employment actions as a matter of law.
After 2013—less overtime
This claim was not raised below.
The evidence on this was that in May 2015, Gill drove his personal vehicle onto the park grass area, in violation of park rules, and that a photograph of his truck in the park was taken, leading to a written reprimand. Judge Bolanos held that events in May 2015 were "too far afield" from the operative protected activity.
Gill also argues that Judge Bolanos wrongfully held that Gill could not argue seven other items constituted adverse employment actions, specifically:
May 2015 and thereafter—put on PIPS
June 4, 2015—written reprimand from Pallavicini
October 2015—10-day suspension imposed
December 2015—denied use of bathroom
January 2016—notice of 20-day suspension
April 2016—denial of captain position
May 2016—20-day suspension imposed
Judge Bolanos ruled that all of these incidents were too remote in time from the May 2013 DFEH charge to constitute operative adverse employment actions. Not only was Judge Bolanos correct, it must be noted that some of the items of which Gill complains are not adverse employment actions, including, for example, these: a transfer of duties, at least if no pay is lost (Malais v. Los Angeles City Fire Department, supra, 150 Cal.App.4th at p. 356); written warnings and performance plans do not materially affect the terms and conditions of employment (Kortan v. California Youth Authority (9th Cir. 2000) 217 F.3d 1104, 1113); and a written counseling and cease and desist memorandum that "did not affect the terms, conditions and privileges of Plaintiff's employment." (Sanchez v. California, supra, 90 F.Supp.3d at p. 1057.)
Moreover, we fail to see how their rulings could have prejudiced Gill. The jury heard all the evidence and returned a verdict based on the adverse actions before it, the most serious of the things Gill claimed the City did to him. As noted, Gill lost on causation, the jury obviously determining that what the City did was because Gill's conduct and performance—perhaps more accurately, failure of performance—warranted it.
The judgment is affirmed. The City shall recover its costs on appeal.