Opinion
D075557
12-13-2019
PARDIS AMIRHOUSHMAND, Plaintiff and Appellant, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
Law Offices of Joseph Y. Avrahamy and Joseph Avrahamy for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten, Lindsay M. Stevens, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC1601595) APPEAL from a judgment of the Superior Court of Riverside County, Gloria Connor Trask, Judge. Affirmed. Law Offices of Joseph Y. Avrahamy and Joseph Avrahamy for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Christine Mersten, Lindsay M. Stevens, Deputy Attorneys General, for Defendant and Respondent.
Plaintiff and appellant Pardis Amirhoushmand, a psychologist employed by defendant and respondent California Department of Corrections and Rehabilitation (CDCR), was rejected from a probationary term as chief psychologist. She filed a complaint alleging discrimination based on her national origin and religion, and retaliation. She appeals from a summary judgment in favor of CDCR. We have reviewed the record and conclude that summary judgment was properly granted. Amirhoushmand did not meet her burden of producing substantial evidence that her rejection on probation was motivated by a discriminatory or retaliatory animus.
The complaint named the State of California and Does I through 50, inclusive, as defendants. CDCR answered the complaint and is the only defendant in the suit.
BACKGROUND
Statement of Case
Amirhoushmand filed a complaint on February 9, 2016, alleging that her employer, CDCR, had failed her on a probationary term as chief psychologist due to discrimination. She stated three causes of action: (1) discrimination in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) on the basis of her national origin and religion; (2) retaliation in violation of FEHA; and (3) failure to take reasonable steps to prevent discrimination. CDCR answered the complaint, denying the allegations and stating affirmative defenses.
Further statutory references are to the Government Code unless otherwise specified.
CDCR moved for summary judgment or in the alternative for summary adjudication. After opposition, reply, and hearing, the trial court granted summary judgment for CDCR. The court found no support for Amirhoushmand's claim that her failure to pass her probationary term was motivated by discriminatory or retaliatory animus. It found there was insufficient evidence that her supervisor knew that Amirhoushmand was an Iranian Muslim. The court further found that the employer had made multiple attempts to assist Amirhoushmand. Amirhoushmand was counseled and given additional attempts to pass her probationary period but failed. The court found no triable issue of fact on the claims in the complaint.
Amirhoushmand's supervisor, Dr. Carin Kottraba, chief of mental health at California Institute for Women (CIW) said in her deposition that she did not know Amirhoushmand's ethnicity before this case was filed. She thought Amirhoushmand was born and raised in America. Amirhoushmand stated that she had a light accent and that she spoke about her Iranian background and her Muslim faith in group settings, less than five times during her entire employment at CDCR. She thought Kottraba was in these group meetings once or twice. Amirhoushmand never discussed her religion or background with Kottraba personally.
Judgment in favor of CDCR was entered on October 30, 2017, and Notice of Entry of Judgment was filed on December 6, 2017. Amirhoushmand timely appealed.
Statement of Facts
Amirhoushmand is an Iranian Muslim. She obtained a Ph.D. in clinical psychology in 2006, and worked since 2007, except for a 10-month period in 2012, as a psychologist for CIW, a facility under CDCR. She was first promoted to a formal supervisory position, senior psychologist supervisor, in November 2014. Kottraba was her supervisor.
Amirhoushmand applied for a promotional position as chief psychologist just two months after having become a supervisor. Kottraba recommended Amirhoushmand for the position and served as a reference for her. James Elliot, the CEO of CIW, and a regional chief psychologist, interviewed candidates. Elliot selected Amirhoushmand for the position. Amirhoushmand began her position as chief psychologist on March 1, 2015. She was on probation for one year, as required in civil service positions.
Further dates occurred in 2015 when the year is not otherwise specified.
Celebratory Lunch Cancelled
Soon after Amirhoushmand started her new position, one of her subordinates sent an e-mail proposing a small in-house lunch celebrating Amirhoushmand's promotion. Kottraba responded that the other chiefs and all staff should be invited, not just a few, to avoid the appearance of favoritism, or else the gathering should be held off the grounds or after hours. Amirhoushmand cancelled the lunch. Kottraba wrote to Amirhoushmand that a lunch was well deserved and a great idea. Amirhoushmand responded, "You're so sweet. No please don't worry about it. You are absolutely right. It would not be right unless everyone is included & with everything that everyone has on their plate I wouldn't want to do that to anyone. . . ."
Announcement of New Position
On April 8, five and a half weeks after her promotion, Amirhoushmand sent Elliot an e-mail asking him to send out an all-staff memo announcing her new position. She enclosed a short memo that she had drafted. Amirhoushmand told Elliot that she had asked Kottraba for an announcement a few times, but none was sent out. Elliot forwarded Amirhoushmand's e-mail to Kottraba, who added a few welcoming words and sent out the announcement that day. Amirhoushmand said in her deposition that Kottraba called her before sending out the memo; Amirhoushmand thought that Kottraba was annoyed, inconvenienced, very upset and angry that Amirhoushmand had asked Elliot to send out the announcement and had told him that Kottraba had failed to do so despite Amirhoushmand's requests.
The memo sent out by Kottraba read as follows:
"I am pleased to announce that, effective March 1, 2015, Pardis Amirhoushmand, Ph.D., ABPP [American Board of Professional Psychology], is a Chief Psychologist, for the California Institutional for Women (CIW).
"Prior to her service in her current position, Dr. Amirhoushmand served in multiple positions at CIW, including Staff Psychologist, Senior Psychologist Specialist, and Senior Psychologist Supervisor.
"Please join me in welcoming Dr. Amirhoushmand to her new role as Chief Psychologist."
The italicized words are those added by Kottraba.
Leadership Expectations
On April 10, Kottraba and Elliot met with Amirhoushmand to discuss their leadership expectations. Elliot said in his deposition that this meeting was his idea, due to concerns about Amirhoushmand's communications as a chief psychologist that were raised by Kottraba and others. Elliot said he "talked it over with [Kottraba] and decided to meet with [Amirhoushmand] and talk about some of her goals and some of the things that she might benefit from to help her be successful." Amirhoushmand left this meeting thinking "something was wrong." She speculated that she "was being targeted" because "she had 'gone against Dr. Kottraba to Mr. Elliot' when she requested Mr. Elliot send the announcement memo."
Elliot sent Amirhoushmand a leadership expectations memo on April 17, 2015, as a follow up to the meeting. The memorandum set forth responsibilities and expectations for the chief psychologist. Amirhoushmand submitted a declaration from the former chief psychologist saying that an expectations memo should usually be given after a duty statement has been given.
Informal Complaints of Discrimination
Amirhoushmand complained to the regional chief psychologist on April 30 after receiving the leadership expectations memo, claiming that she was being discriminated against because of her national origin and religion. She also told Elliot, on May 1, that she thought Kottraba was discriminating against her because Amirhoushmand was "different."
First Probationary Report
Amirhoushmand's first probationary report rated Amirhoushmand as needing improvement in every area. The report is dated May 8 but was apparently not given to Amirhoushmand until May 27, when Amirhoushmand and both reviewers signed it. Amirhoushmand disputed the veracity of the stated concerns about her performance and submitted a rebuttal. She also filed a grievance. A labor relations officer, Elliot, Amirhoushmand and Amirhoushmand's union representative met to discuss the grievance. Elliot denied her first level grievance. The CDCR Office of Labor Relations (OLR) denied a higher-level grievance from this probationary report. OLR staff reviewed all of Amirhoushmand's documentation about the probationary report. OLR found that the probationary report "followed the process of a supervisor assessing how well an employee is adapting to their position, and also in assessing whether the employee is demonstrating they are qualified and able to perform the duties they were hired to perform. Each supervisor uses their own perspective when evaluating an employee's work performance." The OLR concurred with the lower level of review that Amirhoushmand had not substantiated her allegations of either an inaccurate appraisal or disparaging treatment. It found that CDCR did not err in its assessment of Amirhoushmand's probationary status. Amirhoushmand disputed the OLR's findings, based on declarations from her subordinate and the former chief psychologist who was no longer at CIW during Amirhoushmand's probationary period.
Formal Complaint of Discrimination
Amirhoushmand filed a formal discrimination complaint with CDCR on June 14, complaining that Kottraba had discriminated against her on the basis of ancestry, national origin, race and religion. CIW's CEO and warden met with Amirhoushmand and clarified the statements made in her complaint of discrimination by Kottraba.
Letter of Instruction
Elliot gave Amirhoushmand a letter of instruction (Letter of Instruction) on June 29, 2015, that listed standards to be met and deficiencies in her supervision of her subordinates. Amirhoushmand disputes the validity of the allegations in this letter. This Letter of Instruction had no adverse effect on her pay or benefits and did not impact her opportunities for advancement at CDCR. An Employee Relations Officer (ERO) with CDCR explained that "Letters of Instruction are simply supervisory tools used to inform an employee of an area of concern and of the expectations of the Department." Amirhoushmand rebutted the letter, nonetheless, and grieved it. A labor relations analyst held a grievance conference with Amirhoushmand, her union representative, and Elliot. Elliot denied the grievance, finding no merit.
Second Probationary Report
Amirhoushmand received a second probationary report on July 22 that rated her performance as unacceptable in six out of nine categories and as needing improvement in the remaining three categories. The overall rating was unacceptable. Amirhoushmand filed a rebuttal and a grievance. CDCR's regional chief executive had a conference with Amirhoushmand and reviewed her documentation. He denied her grievance.
Third Probationary Report
Her third and final probationary report, on September 16, 2015, rated Amirhoushmand's performance unacceptable in all categories. Amirhoushmand disputed the validity of the report and stated that her performance as chief psychologist was exemplary. Amirhoushmand filed a rebuttal to the probationary report and a grievance. The grievance was denied.
Rejection on Probation
A notice of rejection on probation was served on Amirhoushmand in November 2015, effective December 4, 2015. She filed a grievance, which was denied after a "Skelly Hearing." Amirhoushmand was permissively returned to the position of senior psychologist supervisor.
In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), the California Supreme Court held that due process requires that a permanent civil service employee be given, before removal, notice of the proposed action, the reasons therefore, the charges and materials on which the action is based, and an opportunity to respond. (Id. at p. 215.)
Additional Information
An ERO provided help to Amirhoushmand and to Elliot and Kottraba in their supervisory duties. The ERO met Amirhoushmand in June 2015 and helped her in supervising her subordinate employees. At the same time, she "began working closely with Dr. Kottraba and Mr. Elliot to devise ways for Dr. Amirhoushmand to improve her performance as Chief Psychologist."
The ERO helped draft and reviewed the probationary evaluations and rejection on probation. The ERO investigated the complaints against Amirhoushmand. She reviewed e-mails between Amirhoushmand, Kottraba and Elliot and complaints from other employees about Amirhoushmand's performance as a chief psychologist. She spoke with the people involved to evaluate whether the issues occurred as reported and sought legal counsel on the issues. After investigating the complaints, the ERO concluded that Amirhoushmand "was rejected on probation because she was not performing well in the role of Chief Psychologist and sufficient to the standards required for the position in compliance with CDCR policies." The ERO believed that Amirhoushmand misunderstood basic employee supervision.
Several of Amirhoushmand's colleagues submitted declarations attesting to her professionalism and the high quality of her work. She relies in large part on declarations from Christal B., the former chief psychologist, who had retired from CIW three months before Amirhoushmand became chief psychologist, and Minerva H., a supervising office technician who had worked at CIW for 23 years. Minerva said that Kottraba bullied, harassed, and retaliated against Amirhoushmand. She said four of the senior supervisors also engaged in this behavior and were extremely disrespectful toward Amirhoushmand.
DISCUSSION
1. Standard of Review
A motion for summary judgment or summary adjudication is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); see Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) We review a grant of summary judgment or summary adjudication de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500.) The evidence must be viewed in the light most favorable to the nonmoving party. (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) "We will affirm an order granting summary judgment . . . if it is correct on any ground that the parties had an adequate opportunity to address in the trial court. . . ." (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.)
The FEHA prohibits an employer from discriminating against any employee on certain enumerated grounds, including national origin and religion. (§ 12940, subd. (a).) It also prohibits an employer from retaliating against an employee for having filed a complaint, testified, or assisted in any proceeding under the FEHA. (Id. at subd. (h).) To prove discrimination and retaliation claims at trial, an employee must make a prima facie case by showing that he or she was a member of a protected class or engaged in protected activity, the employer took an adverse employment action against the employee, and the adverse action occurred under circumstances that gave rise to an inference of discriminatory or retaliatory intent. The employer, in response, must produce evidence that his or her action was motivated by legitimate, nondiscriminatory reasons, that is, reasons that are " ' "facially unrelated to prohibited bias [or retaliation], and which if true, would thus preclude a finding of discrimination [or retaliation]." ' " (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 38-39 (Nakai); Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).) The employee then has the burden to prove " 'the ultimate issue [that] is simply whether the employer acted with a motive to discriminate [or retaliate] illegally.' " (Serri, at p. 861; Yanowitz v. L'Oréal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz) [retaliation].)
An employer can move for summary judgment by producing evidence of the legitimate nondiscriminatory reasons for its action. The employee then has "the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357 (Guz).) An employer who has shown a nondiscriminatory reason for its adverse action is entitled to summary judgment unless the employee produces nonspeculative evidence permitting a reasonable inference that the employer " 'acted with a motive to discriminate illegally.' " (Serri, supra, 226 Cal.App.4th at p. 861.) The employee must also show an actual causal link between discriminatory intent and the adverse action. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King); Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159 (Featherstone).) The same standard applies to retaliation. Once the employer has shown nonretaliatory bases for its action, the burden shifts back to the employee to produce nonspeculative evidence permitting a reasonable inference that the employer acted with the intention of retaliating. (Yanowitz, supra, 36 Cal.4th at p. 1042; Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 676 (Mackey).) A "plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations." (King, at p. 433; Featherstone, at p. 1159.)
2. Discrimination
CDCR provided ample nondiscriminatory reasons, not related to bias, for failing Amirhoushmand on probation. The burden fell on Amirhoushmand to produce evidence from which a reasonable inference of discrimination could be drawn. Amirhoushmand contends that the reasons stated by CDCR were pretextual because they were incorrect or wrong. She avers that direct evidence of Kottraba's discriminatory intent was shown by Kottraba's failure to hire an Iranian applicant due to his heavy accent, and that circumstantial evidence was shown by three instances in which she was treated differently from others.
A. Direct Evidence of Discrimination
Amirhoushmand has pointed to no comments by anyone, during or before her probationary period, suggesting national origin or religion played a role in employment decisions in general, or in her case in particular. She relies solely on Kottraba's refusal to consider hiring an Iranian psychologist who had a heavy accent. Kottraba selected a Caucasian candidate instead. She hired a Middle Eastern candidate from another panel, however, who did not have a heavy accent or a Middle Eastern name.
Amirhoushmand also points out that Kottraba removed a supervising office technician from an interview panel because she pronounced "desks" as "deks" when reading a question. Kottraba said she removed that employee not due to an accent but because it was embarrassing to have a supervisor on the panel who could not read questions clearly.
An adverse action based on a foreign accent may show discrimination based on national origin. (Fragante v. City and County of Honolulu (9th Cir. 1989) 888 F.2d 591, 595.) An employer can, however, make an adverse employment decision based on a person's accent when it materially interferes with job performance. (Id. at p. 596.) "There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance." (Id. at pp. 596-597.) Clear oral communication would seem to be a necessary requisite for a position as a psychologist. Kottraba's comments on a heavy accent when interviewing for a position that requires oral communication do not raise a reasonable inference of discriminatory animus toward Amirhoushmand. (Ibid.) Amirhoushmand's belief to the contrary lacks evidentiary weight. (King, supra, 152 Cal.App.4th at p. 433; Featherstone, supra, 10 Cal.App.5th at p. 1159.)
B. Disparate Treatment as Circumstantial Evidence of Discrimination
Amirhoushmand claims that she provided circumstantial proof of discrimination because Kottraba treated her differently from other employees. Amirhoushmand must show a reasonable inference that the disparate actions were caused by discriminatory intent. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 590 (Soria); Guz, supra, 24 Cal.4th at p. 355.) She must also show that " 'discrimination was a substantial motivating factor, rather than simply a motivating factor.' " (Soria, at p. 590.) She discusses three incidents: Kottraba's interference with a celebratory lunch for Amirhoushmand; Kottraba's delay in sending out an announcement of Amirhoushmand's new position; and Kottraba's discussion of leadership expectations with Amirhoushmand and follow-up memo. There was no evidence that these events were motivated by discriminatory animus based on Amirhoushmand's national origin or her religion.
When a staff member proposed a small celebratory lunch for Amirhoushmand, Kottraba suggested a more politic way of handling it. Kottraba said that other members of the management team should be invited, and a small closed lunch might show favoritism. Amirhoushmand agreed that everyone should be included, and cancelled the lunch. Amirhoushmand said in her deposition that celebratory lunches were held for other people. The position of chief psychologist is different, however, because the chief has supervisory power over a large group of people. Also, the chief has peers who should be included, as Kottraba suggested. Amirhoushmand showed no intent by Kottraba to discriminate based on national origin or religion. Amirhoushmand speculated that the reason for different treatment was that "it had to be because I'm different than the other people," but speculation is not evidence of discrimination. (King, supra, 152 Cal.App.4th at p. 433; Featherstone, supra, 10 Cal.App.5th at p. 1159.) Kottraba's comments about favoritism being inferred and bad feelings about exclusion were rational.
Similarly, the memo announcing her promotion to a chief position was sent out five and a half weeks after she began. Amirhoushmand submitted a declaration from Minerva stating that an announcement was previously sent out "immediately" whenever a new chief psychologist was appointed. No evidence suggests that any tardiness in this case was due to discriminatory intent rather than press of business. There was no reason given why Kottraba would have changed from recommending Amirhoushmand for the position to being biased against her national origin and religion in just five weeks. Amirhoushmand thought that Kottraba was annoyed about the announcement memo because Amirhoushmand had notified the CEO of Kottraba's delay, not due to her national origin or religion.
Amirhoushmand speculated that Kottraba took adverse action against her after the announcement memo for nondiscriminatory reasons. Amirhoushmand thought she "was being targeted" because "she had 'gone against Dr. Kottraba to Mr. Elliot' when she requested Mr. Elliot send an announcement memo." This reason was not based on Amirhoushmand's national origin or religion. Nor is this an example of the sort of retaliation that supports a cause of action under the FEHA. Retaliation is actionable only when the employer retaliates against an employee as a result of the employee's protected activity—that is, an employee's complaint about discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Retaliation due to a work event is not actionable.
Finally, Amirhoushmand asserts that Kottraba and Elliot treated her differently from others when they gave her a leadership expectations memo. She may well have been treated differently from others because, according to Elliot, Amirhoushmand was already having difficulties in her new position. Elliot said he had heard "early on . . . she had some challenges in communicating as a chief psychologist." These concerns were raised by Kottraba and also by others. Elliot wanted to help Amirhoushmand be more successful. This is a legitimate, nonbiased reason for treating Amirhoushmand differently from others. Even if others were usually given a duty statement before being given a leadership expectations memo, there is no evidence from which to draw a reasonable inference that Amirhoushmand was treated differently because of her national origin and religion rather than because of her poor performance.
Amirhoushmand produced no evidence, or even a reasonable inference, linking the lunch, announcement memo or letter of expectations to her national origin and religion. Her subjective speculation was not evidence of discriminatory intent. (King, supra, 152 Cal.App.4th at p. 433.; Featherstone, supra, 10 Cal.App.5th at p. 1159.) Further, these examples of allegedly disparate treatment are too inconsequential to reasonably support an inference of intentional discrimination. (Cf. Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 326 [questioning employees about their age and birthday wishes for plaintiff's 60th birthday do not, alone, support inference of age discrimination].) Either singly or in combination with other factors, Amirhoushmand has not shown that discrimination was a substantial motivating factor in treating her differently from others. (Soria, supra, 5 Cal.App.5th at p. 590; Guz, supra, 24 Cal.4th at p. 355.)
C. CDCR's Reasons Were Not Pretextual
Amirhoushmand contends that CDCR's reasons for her rejection on probation were pretextual, that is, that "the presumptively valid reasons for [an adverse action] were a . . . coverup for a . . . discriminatory decision." (McDonnell Douglas Corp v. Green (1973) 411 U.S. 792, 805.) After a thorough examination, we conclude the reasons given by CDCR were not a coverup for intentional discrimination.
An employer's reasons for an adverse action are " ' "legitimate" if they are "facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination." [Citation.] If the employer meets this burden, the employee then must show that the employer's reasons are pretexts for discrimination, or produce other evidence of intentional discrimination.' " (Nakai, supra, 15 Cal.App.5th at p. 39.) CDCR stated many reasons for its rejection of Amirhoushmand in its first, second and third probationary reports, summarized in the Notice of Rejection on Probation, with 34 supporting documents. Amirhoushmand's national origin and religion are not mentioned in the almost 400 pages of reasons for rejection and supporting evidence.
Pretextual reasons for an adverse action may be circumstantial evidence of intentional discrimination. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146-147 (Reeves).) "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." (Id. at p. 147.) Generally, however, there must be some additional, independent evidence of discrimination. (Id. at p. 148.) "The ultimate question is whether the employer intentionally discriminated, and proof that 'the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.' [Citation.] In other words, '[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.' " (Reeves at pp. 146-147; Guz, supra, 24 Cal.4th at p. 361.) To show pretext, it is not sufficient to show that CDCR's reasons were wrong, mistaken, or unwise. (Nakai, supra, 15 Cal.App.5th at p. 39.) Amirhoushmand must produce evidence that CDCR's reasons for rejection were so implausible, inconsistent or contradictory that a reasonable factfinder could have found them unworthy of credence. (Ibid.) She has not satisfied this burden of production of evidence.
We have closely and independently examined CDCR's reasons for unfavorable probationary reviews, Amirhoushmand's rebuttals, and the documentary evidence related to the disputed issues. We conclude that most of CDCR's reasons for unfavorable performance reviews and eventual rejection on probation were substantiated by e-mails and other information attached as exhibits to the Notice of Rejection on Probation. A few of the CDCR's reasons were open to dispute, but the probationary reports and rejection as a whole were not pretextual even if some small number of reasons were wrong.
Amirhoushmand rebutted CDCR's reasons in some cases by providing her own reasons for not following CDCR policy or the direction of Kottraba, her supervisor. For example, CDCR policy was to have a clinician mentored by the expert on suicide risk evaluation, the suicide prevention coordinator, after a suicide by the clinician's patient. Amirhoushmand assigned the mentoring instead to a general supervisor. Amirhoushmand gave her reasons for doing so in her rebuttal. Whatever the merit of Amirhoushmand's reasons, she either did not know or did not follow CDCR policy. CDCR fairly rated her as lacking in knowledge of CDCR policy.
In other instances, Amirhoushmand rebutted or raised a factual question about the accuracy of the probation review, but other documentation confirms the same poor performance by Amirhoushmand on other occasions. For example, Amirhoushmand raised a factual dispute about the timeliness of certain required documents. Other documents, however, were not submitted on time. Examples of untimely responses include a document request that was overdue by one week; failure to timely respond to a request for a training schedule; and failure to timely respond to vacation requests in at least two instances.
There was no factual dispute or ambiguity that Amirhoushmand's relationships with staff needed improvement. Amirhoushmand agreed that she had poor relationships with the people she supervised but characterized this as "based on extreme subjectivity" and blamed it on Kottraba's poor communication with her. Her staff members, however, were reasonably "fearful of [Amirhoushmand] taking punitive measures and writing them up if they make errors." Amirhoushmand's decision to punish staff in the aftermath of a suicide—contrary to the expressed desires of Amirhoushmand's supervisor and the staff person's supervisor—corroborated staff's reports of being fearful of punitive consequences from Amirhoushmand. Amirhoushmand showed disrespect toward the social workers, stating that she did not think it appropriate for a supervising social worker to supervise a psychologist, even though California Human Relations Department had recognized that supervising social workers were qualified to supervise psychologists.
Amirhoushmand needed to improve her learning ability. She asked Kottraba about the duties of two her staff, although that matter had been discussed before. Amirhoushmand does not dispute having asked a second time about the separate duties, but said that it was not unreasonable to ask about the breakdown of their specific duties. Amirhoushmand had an incomplete knowledge of the Psychiatric Inpatient Program (PIP) program and showed no initiative to learn more about it. She said that Kottraba should have directed Amirhoushmand to learn about it if she wanted Amirhoushmand to understand that portion of the program.
Amirhoushmand's attitude also needed to improve. Her disrespect for a supervising social worker was an example of her poor attitude. Her poor attitude toward staff was reflected in several derogatory statements she made about them, including calling staff "a bunch of whiny babies," saying that a specialist did not know what she was talking about, and that another needed to walk, in relation to her weight. Amirhoushmand also said to someone, "You used to be a supervisor, what happened to you?" By May, one of the psychologists had such difficulties with Amirhoushmand that she wrote up a list of Amirhoushmand's demeaning and inappropriate actions toward her. The psychologist said that she felt blamed and accused when Amirhoushmand talked to her, instead of informed and supported. Four senior supervisors went to Elliot to discuss serious concerns about their relationship with Amirhoushmand, her style of management and how she communicated.
CDCR cited Amirhoushmand's inability to resolve minor disputes to the point that the CEO of the institution had to resolve them. There was a dispute about who was to pick up and deliver documents throughout the facility. CEO Elliot had to step in to resolve the issue of internal mail delivery because Amirhoushmand could not resolve this on her own. Conflict over use of the golf carts absorbed an undue amount of time. Amirhoushmand directed a staff member to create a schedule for use of the carts, but the staff member complained she was pulled away from more important work to create the schedule for the carts. Amirhoushmand does not dispute this. She responded with a declaration from Christal, who no longer worked at the facility, providing her personal opinion that Amirhoushmand acted appropriately. We give little weight to the personal view of a person who was not present when these events occurred.
Amirhoushmand was rated as needing improvement in communication and given an example of not timely responding to a request for a training schedule, which was supported by documentation. She also failed to understand that Kottraba wanted her overview synthesizing and ensuring accuracy of other information that Kottraba had asked for. She failed to answer Kottraba's questions clearly or at all. She called another employee at home at 8:20 p.m., angry, very upset and arguing about who was responsible for incorrect information that was used at work.
Several staff members complained about the numerous errors in duty statements given to them by Amirhoushmand. Two employees refused to sign the documents from Amirhoushmand because they had so many errors. An employee said, "She was changing them as I kept finding errors." Another employee said a letter of expectations from Amirhoushmand contained parts that "made no sense."
Amirhoushmand claimed that she was blamed unfairly for an inadequate revised audit tool because the audit tool had been created by another employee. Elliot instructed Amirhoushmand to oversee the project and gave her specific instructions. The audit tool that was turned in was inadequate. On June 10, Elliot sent a memo stating, "[F]rankly, I'm concerned," and that the revised tool seemed to be just a "cut and paste" from the earlier tool. It did not conform to the directions Amirhoushmand had been given. Amirhoushmand may be correct that the item was created by another employee, but as a supervisor given the oversight responsibility, Amirhoushmand's rebuttal that someone else created the tool showed a lack of supervisorial knowledge and action.
Finally, Amirhoushmand challenges CDCR's criticism of her poor relationships with staff. She admitted that her relationships with staff were "horrible" as of May 2015. Amirhoushmand told the ERO on June 8 that "she was having trouble with her staff and didn't feel that they respected her." At about the same time, the ERO began working with Elliot and Kottraba "about ways to help improve Dr. Amirhoushmand's relationship with her staff and also improve her duties as Chief Psychologist. We talked about training opportunities for Dr. Amirhoushmand and the need to develop her supervisor skills because [Amirhoushmand] had only two months of supervisory experience before becoming Chief Psychologist." Amirhoushmand claims that the four staff members with whom she had the most problems were insubordinate and disrespectful toward her, relying on declarations from the office technician and other witnesses supporting that view. We view those witness declarations as reflecting their subjective beliefs and therefore of little value. (King, supra, 152 Cal.App.4th at p. 433; Featherstone, supra, 10 Cal.App.5th at p. 1159.) Elliot characterized the four supervisors as the core of supervisors. He said, "The entire supervisor core actually came to me . . . and laid out some real concerns that—all four of them had some real concerns about their relationship, her style of management, how she communicated."
An example of Amirhoushmand creating poor relationships with her supervisees was shown in the selection of someone for the peer review committee. The senior supervisors were to meet and choose someone to be on the peer review committee. The supervisors could not all meet together before the deadline. Kottraba told Amirhoushmand she could extend the deadline to accommodate the schedules of all involved. Instead of extending the deadline to permit a group consensus, Amirhoushmand chose the peer review committee member by herself. The supervisors perceived Amirhoushmand's choice as unfair. Amirhoushmand said she did not extend the deadline because "Either way, I would have gotten in trouble for not meeting the deadline [or] for upholding the deadline. Either way, I was bound to lose." This was Amirhoushmand's subjective belief but not substantiated. Kottraba documented a phone call with Amirhoushmand in which Amirhoushmand refused to answer her questions if the peer review rollout would be successful, saying instead that "it's about something bigger that she did not want to discuss" and blaming Kottraba for not supporting Amirhoushmand. In other words, Amirhoushmand did not dispute her difficulties with her supervisees in selecting the peer review committee member, but blamed the difficulties on Kottraba for allegedly sabotaging Amirhoushmand's relationships with her supervisees. It was Amirhoushmand's unilateral choice of picking the committee member, however, instead of waiting for all supervisors to be present, that caused the dissention among the supervisors. E-mail communications also showed Amirhoushmand's defensiveness and inability to communicate and work with her supervisor as early as June.
In sum, most of the reasons given for the probationary rejection were substantiated. A few of the CDCR's reasons were open to factual dispute, but the probationary report as a whole was not pretextual even if some small number of reasons were wrong. Reasons that are wrong, mistaken, or unwise, in any event, are not sufficient to show pretext. Amirhoushmand had to produce evidence that CDCR's reasons for rejection were so implausible, inconsistent or contradictory that a reasonable factfinder could have found them unworthy of credence. (Nakai, supra, 15 Cal.App.5th at p. 39.) She also had to produce evidence that the adverse action was substantially motivated by discriminatory intent. (Soria, supra, 5 Cal.App.5th at p. 590.) Amirhoushmand has shown neither that CDCR's reasons were pretextual nor evidence supporting a rational inference that CDCR was motivated by intentional discrimination.
D. Retaliation
Amirhoushmand contends that CDCR retaliated against her due to her complaints of discrimination. After an independent review of the record, we disagree. Complaints about Amirhoushmand's performance arose before her protected activity. There is no evidence that Kottraba was aware of the complaints of discrimination, and Amirhoushmand said that Kottraba was the only one motivated by discriminatory intent. The proximity of time between Amirhoushmand's protected activity and CDCR's adverse actions may raise a prima facie case of retaliation, but the prima facie case was rebutted by CDCR's legitimate, nonretaliatory reasons for its adverse actions and by Kottraba's lack of knowledge of the protected activities. Amirhoushmand has not produced any direct or circumstantial evidence that Kottraba or CDCR were actually motivated by intentional retaliation.
1. Applicable Law
The FEHA makes it unlawful for an employer to "discharge, expel, or otherwise discriminate against any person . . . because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA]." (§ 12940, subd. (h).) Informal complaints to supervisors about discriminatory action are sufficient to trigger the prohibition against retaliation. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 287 (Nazir); California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018.) To prove retaliation under the FEHA, an employee "must prove he engaged in protected activity; the employer took an adverse employment action against him; the protected activity was a motivating reason for the adverse action; and the employers' conduct caused harm to the plaintiff." (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1533; Yanowitz, supra, 36 Cal.4th at p. 1042.) The employee must show a nexus between the protected activity and the adverse employment action. (Yanowitz, at p. 1042.) This includes a showing that the person causing the adverse action was aware of the complaints of discrimination. (Mackey, supra, 31 Cal.App.5th at pp. 679-680.)
Proximity in time between protected activity and an adverse employment action raises a prima facie case of retaliation. If the employer provides legitimate, nonretaliatory reasons for the adverse action, the presumption of retaliation disappears and the burden shifts back to the employee to produce evidence of intentional retaliation and a causal link to the adverse action. (Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 91 (Light); Mackey, supra, 31 Cal.App.5th at p. 676.) As detailed ante, CDCR produced substantial evidence that it rejected Amirhoushmand on probation for legitimate, nonretaliatory reasons.
2. Complaints of Discrimination
On April 10, Kottraba and Elliot met with Amirhoushmand to discuss their leadership expectations. There were complaints about communications, leadership and management from Kottraba and others before the meeting. Amirhoushmand understood after this meeting that her performance was not acceptable, but thought that Kottraba was targeting her because she had complained to Elliot about Kottraba not sending out a memo announcing her new position. Retaliation for nondiscriminatory reasons is not actionable.
The first protected activity occurred on April 30, when Amirhoushmand complained to the regional chief psychologist after receiving the leadership expectations memo, claiming that the memo was retaliation for complaining to Elliot about the announcement memo. She also told the regional chief psychologist that she thought she was being discriminated against because of her national origin and religion. She told Elliot on May 1 that she thought Kottraba was discriminating against her because she was Middle Eastern.
Amirhoushmand's first probationary report was dated May 8, 2015, but was given to Amirhoushmand on May 27, when everyone signed the report. It rated Amirhoushmand as needing improvement in every area. Elliot knew that Amirhoushmand had complained that Kottraba was discriminating against her, but there is no evidence that Kottraba knew of the complaint of discrimination.
Amirhoushmand filed a formal discrimination complaint with CDCR on June 15, complaining that Kottraba had discriminated against her on the basis of ancestry, national origin, race and religion. She did not mention Elliot in this complaint.
Amirhoushmand said that Kottraba was the only one who purportedly treated her differently due to her background and religion. Amirhoushmand cannot show that Kottraba was aware of her complaints of discrimination based on national origin and religion, so she cannot show a causal link between her protected activity and Kottraba's adverse actions. (Yanowitz, supra, 36 Cal.4th at p. 1042; Mackey, supra, 31 Cal.App.5th at pp. 679-680.) Amirhoushmand never told Kottraba directly that she thought Kottraba was discriminating against her on the basis of her national origin or religion. Kottraba said that Elliot never told her that Amirhoushmand accused her of retaliation or discrimination. Kottraba said that she was not aware of a complaint against her until the EEOC notified her that the case was closed. Even then, she received a generic form letter that said only that a complaint had been filed against her. Kottraba did not know the nature of the complaint. Amirhoushmand responded that Kottraba was aware that Amirhoushmand had rebutted and grieved the negative reviews. The rebuttals and grievances consisted primarily of substantive responses to the negative evaluations. Some, but not all, of the rebuttals and grievances contain brief references to discrimination in general. They did not reference national origin or religion or any other characteristic as the basis of discrimination. The fact that Kottraba knew of Amirhoushmand's rebuttals and grievances does not show that Kottraba knew that Amirhoushmand had accused her of national origin/religion discrimination. The evidence does not support a finding of a nexus between alleged discrimination by Kottraba and Kottraba's adverse actions against Amirhoushmand.
3. Analysis
Once CDCR produced its nonretaliatory reasons for the adverse action, the burden reverted to Amirhoushmand to produce some evidence that Kottraba knew of the complaints of discrimination and that Kottraba's subsequent actions were motivated by retaliation for the protected activity. (Light, 14 Cal.App.5th at p. 91; Mackey, supra, 31 Cal.App.5th at p. 676.) Amirhoushmand did not meet either burden. Her rebuttals to the negative reviews were insufficient to show that CDCR's reasons were pretextual. Similarly, Amirhoushmand produced no evidence of retaliation based on protected activity.
E. Employers' Duty
Employers have an affirmative and mandatory duty to prevent harassment, discrimination and retaliation. (Nazir, supra, 178 Cal.App.4th at p. 288.) Because she has not shown that she was either retaliated against or discriminated against, Amirhoushmand has not shown that CDCR failed to prevent such actions.
DISPOSITION
We affirm the granting of summary judgment on the complaint in favor of CDCR. CDCR to recover costs on appeal.
BENKE, Acting P. J. WE CONCUR:
O'ROURKE, J.
DATO, J.