Opinion
A166444
08-06-2024
DAWN GUTSCH, Plaintiff and Appellant, v. OAK GROVE UNION SCHOOL DISTRICT et al., Defendants and Respondents
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCV-266965)
GOLDMAN, J.
Oak Grove Union School District (District) hired Dawn Gutsch in February 2020 to work in the office of District Superintendent Amber Stringfellow. Approximately six weeks later, the county and state issued health orders to address the then-emerging COVID-19 pandemic. The orders required non-essential workers to shelter in place and urged social distancing for everyone, including essential workers. When Gutsch raised and then continued to assert her pandemic-related concerns regarding in-person meetings and interviews with new principal candidates, Stringfellow told her, "If you can't do your job, I can do it for you." Thereafter, according to Gutsch, she was excluded from human resources duties and two weeks later she was fired without a contemporaneous explanation. Gutsch sued the District and Stringfellow (collectively, District), claiming that she was fired in violation of Labor Code sections 6310 and 1102.5 after blowing the whistle on unsafe and unlawful practices in the work environment.
Undesignated statutory references are to the Labor Code.
The District moved for summary judgment, arguing that, for each of her claims, Gutsch had not established a prima facie case of retaliatory termination and that it had legitimate, nonretaliatory reasons for terminating her. The District pointed to three errors Gutsch made in the week before she was terminated, and Stringfellow explained that in the early days of the pandemic, she did not have the capacity to monitor the work of an error-prone employee. Otherwise, Stringfellow stated, Gutsch was not meshing well with the rest of the District administrative team. The trial court granted the motion.
On appeal, Gutsch argues that summary judgment was improper because there were triable issues of material fact with respect to both her prima facie case of retaliation and the District's asserted legitimate reasons for her termination. We agree and reverse.
BACKGROUND
I. Gutsch's Employment
Gutsch began working for the District on February 4, 2020, as a human resources data technician. She was certified in human resources administration and understood that the position required her to perform human resources tasks and to work with databases and technology. Gutsch reported to Stringfellow. Stringfellow knew that Gutsch did not have experience with school districts, but she believed that Gutsch's background fit the position. The District hired Gutsch as a probationary employee, with a six-month probationary period.
Sonoma County issued a health order on March 17, 2020, directing nonessential workers to work remotely. Stringfellow or Amy Prescott, the District's chief financial officer, told Gutsch that she was an essential worker. District staff other than Gutsch continued working in person after March 17, 2020.
On March 18, Stringfellow called the five or six District staff members into her office, where they sat roughly a foot apart around a table to discuss the pandemic and the county health order. Gutsch commented that they should not all be meeting in the same room. Stringfellow responded that the county health officer "did not know schools," and that in the face of uncertainty, schools could "interpret the health order the best they see fit." When Stringfellow raised the issue of in-person interviews for new principal candidates, Gutsch asked whether they should set up video conferences instead. Stringfellow disagreed because in-person interviews would allow school board members to get a better feel for the candidates. After Gutsch reiterated her concern, an agitated Stringfellow said, "If you can't do your job, I can do it for you." Gutsch responded that there was no issue with her doing her job, but that the interviews should be conducted remotely.
Around March 19, Gutsch asked to work remotely because she did not need to be in the office to complete her job duties. Stringfellow and Prescott agreed and provided Gutsch a District laptop.
On March 22, Stringfellow sent Gutsch a text message that read, "I'm hoping we can get through tomorrow and make a plan for working remotely . . . at least partially moving forward. See you tomorrow." Gutsch responded, "My understanding is that the Governor has ordered all Californian's [sic] to remain at home with the only exception of those in the 16 critical infrastructure sectors. I plan to work from home until the order is lifted." Stringfellow replied, "Do you have all principal interviews and information set?" Gutsch responded, "Times are set[.] I wasn't provided with anything else you would need. A link can be set up. I assumed with the new orders from the governor we wouldn't be doing in person interviews." Stringfellow said she would let Gutsch know if she needed anything else; Gutsch received no further direction regarding the interviews. Thereafter, Gutsch believed, Stringfellow intentionally excluded her from further human resources responsibilities related to the principal hiring. Gutsch also knew that superintendents were attending meetings related to the pandemic. She believed the meetings necessarily would include human resources-related functions and she asked Stringfellow if she could attend. Stringfellow said no.
Around March 23, Prescott commented to Gutsch that "all the essential workers are here," meaning in the office. In an email with Stringfellow and Prescott afterward, Gutsch explained why she asked to work remotely, given her extensive experience in public health, and stated that she "d[id] not appreciate snide comments about [her] decision to work remotely in compliance with the Executive Order."
On March 23, the date of the principal interviews, Gutsch emailed Stringfellow, Prescott, and Stringfellow's secretary, attaching the interview schedule. Stringfellow responded, "Thanks we've got it from here," and said that her secretary "w[ould] be making personal phone calls." Gutsch replied, "I just heard from [Stringfellow's secretary] that you are going to do all the interviews remotely. I am happy to set all of these up for you and connect with the candidates. Would you like me to send all of the candidates [sic] information electronically to all of the interviewers?" Stringfellow did not respond, and Gutsch did not participate further in the interview process.
The District cited three incidents to explain Gutsch's termination. On March 31, Gutsch submitted a personnel action report as part of a packet for the District board meeting. Stringfellow advised Gutsch that the report incorrectly included personnel action items from the preceding month; Gutsch removed those items before the packet was due. In her declaration, Stringfellow stated that the error "exhibited [Gutsch's] lack of follow through with details, necessitating the constant overview of her work." Also on March 31, Stringfellow forwarded an email (on which Gutsch, apparently like Stringfellow herself, had been BCC'd) reminding "everyone" that the "SELPA Pupil Count" would be extracted the next day and to make "sure you have processed all exits, transferred all record requests, and IEPs are affirmed." Stringfellow stated that Gutsch was trained on the task and it was one of her job responsibilities. The third incident involved an online pandemic training, which the District asked Gutsch to "figure out" and distribute to employees. The task had been assigned to an employee who had retired; Gutsch believed with her background she would be able to complete it. After Gutsch distributed the training on April 2, she received emails from 10 to 20 employees who could not access it. Stringfellow received emails from eight or so employees. Gutsch selected the wrong category for the impacted employees and had to re-send those employees the correct link to the training. She sent the correct link the first time to approximately 95 percent of employees. Stringfellow believed the mistake caused confusion and frustration at an already challenging time.
The District noted a fourth incident that appeared to result in informal coaching about several payroll matters, as reflected in emails between Gutsch and another employee on March 16 and 17, 2022.
Stringfellow terminated Gutsch on April 3, after consulting Prescott and legal counsel. She did not provide Gutsch with reasons for her termination at the time. Stringfellow stated in her declaration that she terminated Gutsch due to "(1) Gutsch's inability to complete her duties without monitoring; (2) her inability to take direction or receive training without being confrontational; (3) mistakes she made that negatively impacted District operations; (4) [her] lack of trust in [Gutsch's] ability to follow through with details; and (5) [her] concern with [Gutsch's] professional judgment ...." Gutsch was not working well with District administrative staff, and she had questions about human resources matters that Stringfellow expected her to know or to grasp more quickly than she did.
Stringfellow also explained that she "terminated Gutsch before she had either the time or opportunity to prepare a formal performance evaluation .... Given the circumstances of the Pandemic and the tasks that needed to be done urgently, . . . she did not have any additional time to continue to have problems at the District, and . . . she needed to act promptly to get the District's human resources functioning efficiently. In the approximately nine weeks she was employed at the District, Gutsch created additional work . . . and made more mistakes that needed to be addressed than Stringfellow would have expected of a new employee. Given that March and April 2020 were a time of unprecedented urgency and uncertainty, Stringfellow . . . did not have the option to do anything other than to make every effort to formulate the best possible administrative team functioning at the highest possible level to meet the . . . needs of the students, families, faculty and staff in a rapidly evolving critical situation.... Gutsch was not contributing to the administrative team in a way that best met those rapidly evolving needs. To the contrary, she was creating additional work for other team members, including Stringfellow, when the time and resources to continue to monitor her work and correct mistakes were severely limited." The District did not fill Gutsch's position until approximately 18 months after her termination; in the meantime, other staff absorbed her duties.
Gutsch disputed Stringfellow's rationale, believing it was created after her termination. Gutsch "was never . . . informed . . . that she was deficient in her performance in any way," and, Gutsch asserted, after she reported her concerns, she was excluded and ostracized. In its "rush to terminate," Gutsch believed, the District did not follow policy. District policy 4216 states that probationary employees "shall receive written performance evaluations by their supervisor during the[ir] probationary period. These evaluations shall indicate whether the evaluator is satisfied or not satisfied with the employee's ability, performance, and compatibility with the job."
II. Summary Judgment
Gutsch sued the District, asserting whistleblower retaliation claims pursuant to sections 6310 and 1102.5. The District moved for summary judgment of Gutsch's claims. The parties stipulated that the District could provide a supplemental brief addressing Lawson v. PPG Architectural Finishes Inc. (2022) 12 Cal.5th 703 (Lawson), which interpreted the legal and evidentiary standards set forth in sections 1102.5 and 1102.6, and that Gutsch would do so in her opposition brief. The trial court found Gutsch's initial separate statement of facts in support of her opposition inadequate and allowed her to revise it. After considering the briefs and evidence, the trial court concluded that Gutsch had not cured various deficiencies in her statement of facts; that she failed to establish a prima facie case that she was terminated in retaliation for reporting pandemic safety concerns; and that the District had produced sufficient evidence that Gutsch was terminated for legitimate, nonretaliatory reasons to rule in its favor as a matter of law.
DISCUSSION
I. Standard of Review "A trial court may grant a motion for summary judgment 'if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' (Code Civ. Proc. § 437c, subd. (c).) [¶] To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff's causes of action fail or that there is a complete defense to the plaintiff's case. [(Id., subd. (p)(2).)] If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.) A triable issue of a material fact exists 'if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.'" (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 377 (Vatalaro).)
"We review an order granting summary judgment de novo, and' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." '" (Vatalaro, supra, 79 Cal.App.5th at p. 377.) Applying de novo review, "we are not bound by the trial court's stated reasons or rationales." (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67 (Morgan).)
II. Section 1102.5 "Section 1102.5 [protects] employees who report wrongdoing to authorities. Specifically, the statute prohibits an employer from 'retaliat[ing] against' an employee 'for' disclosing information that the employee believes discloses a violation of law or noncompliance with regulations.... 'A report made by an employee of a government agency to their employer' constitutes a protected disclosure under section 1102.5." (Ververka v. Department of Veterans Affairs (2024) 102 Cal.App.5th 162, 173.)
For a section 1102.5 claim, "section 1102.6 describes the applicable substantive standards and burdens of proof for both parties .... First, it must be 'demonstrated by a preponderance of the evidence' that the employee's protected whistleblowing was a 'contributing factor' to an adverse employment action. (§ 1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities," i.e., that the employer would have made the same decision absent a retaliatory motive. (Lawson, supra, 12 Cal.5th at p. 712.)
A. Prima facie case
The District makes two primary arguments that Gutsch did not establish a prima facie case of whistleblower retaliation in violation of section 1102.5. First, it argues, Gutsch has not established that she engaged in protected activity; and second, Gutsch has not shown that her activity was a contributing factor in her termination.
The District separately argues that Gutsch has not established a causal link between her protected activity and her termination. Because the parties' arguments regarding a causal link and whether Gutsch's protected activity was a contributing factor in her termination are essentially the same, we address these closely related issues together.
1. Protected whistleblowing activity
The District contends that Gutsch could not reasonably and in good faith have believed she was reporting a violation of law, rule, or regulation when she stated to Stringfellow that District staff should not all be meeting together in person, that the principal interviews should be conducted remotely, and that staff should be permitted to work remotely if their job responsibilities allowed them to do so. The time was fraught with uncertainty, the District argues, and Gutsch had no experience in education and was not privy to the guidance District leadership was receiving about whom should be deemed essential workers, when in-person contact was authorized, and what safety precautions needed to be taken for in-person contact. The District's arguments are not persuasive.
Gutsch also alleged in her complaint that her husband's March 21 report to Sonoma County Superintendent of Schools Steve Herrington that Stringfellow planned to hold the principal interviews in person was protected activity. Stringfellow denied receiving any communication from Herrington regarding this report and on appeal Gutsch cites the report only as evidence that Gutsch reasonably and in good faith believed she was reporting violations of the health orders.
The county health order "limit[ed] activity, travel and business functions to only the most basic and essential needs," directed all individuals to shelter in their homes, and required social distancing of at least six feet whenever people were outside their residences. The order explained that "[t]he violation of any provision of this Order constitutes an imminent threat to public health and will be enforced by law enforcement." The order indisputably mandates that all county residents avoid non-essential inperson contact with others, and if in-person contact was necessary, to maintain physical distance. Even if, therefore, the order did not spell out the specific limitations Gutsch advocated for, her concerns regarding in-person work and interviews at the District were wholly consonant with the health order's directives. And the relevant inquiry is not whether the conduct "actually violated" a specific law or regulation, but whether the plaintiff had reasonable cause to believe that there was such a violation at the time it was reported. (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719.) That standard is satisfied here.
Recently, the court in Vatalaro expressed doubt regarding whether a whistleblower's actual, subjective belief is relevant to the analysis. (See Vatalaro, supra, 79 Cal.App.5th at pp. 381-383.) We, like the court in Vatalaro, do not believe it material whether the "reasonable belief' standard requires both an objective and a subjective evaluation and do not attempt to resolve the question. (Id. at p. 383.) Even assuming Gutsch's subjective belief was relevant, we have no trouble discerning at least a dispute of fact on the issue. Gutsch had an extensive background in public health with the county. While she believed that no one knew at the time how contagious the virus was, she believed the authors of the health orders knew that people should not be gathering unnecessarily and should socially distance where inperson contact was necessary. In a time of widespread uncertainty, Gutsch's persistence on the point alone is strong evidence that she genuinely believed Stringfellow's approach violated the health orders.
2. Contributing factor
The District next argues that there was not sufficient evidence to prove that Gutsch's whistleblowing reports were a contributing factor in her termination, stating that Gutsch "relies solely on the circumstantial evidence constituted by the temporal proximity between her alleged engagement in protected activities and her release' from employment. We disagree. While temporal proximity is a relevant and important factor, Gutsch has put forth additional circumstantial and direct evidence that supports her claim that her protected activity was a contributing factor in her termination.
Again, Stringfellow stated in direct response to Gutsch's protected whistleblowing, "If you can't do your job, I will do it for you.' Stringfellow does not deny that she made this statement or contest Gutsch's description of the circumstances. Statements by decisionmakers, like Stringfellow, expressing retaliatory intent are" '[d]irect evidence of retaliation.'" (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 917; see also Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi) [based on supervisor's statement alone, trier of fact could conclude that termination was retaliatory].) Of course, Stringfellow's statement could be interpreted as a more general expression of frustration at Gutsch's inadequate job performance. But in context, and viewing the evidence in the light most favorable to Gutsch, Stringfellow's statement expressed displeasure with, and threatened adverse action against, Gutsch due to her persistent challenges to Stringfellow's plans for in-person work." 'The task of disambiguating ambiguous utterances is for trial, not for summary judgment," and "[d]etermining the weight of discriminatory or ambiguous remarks is a role reserved for the jury." (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541.) This "rare" direct statement of retaliatory motive, even if ambiguous, is evidence that supports Gutsch's prima facie case. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 342 (Arteaga).)
Prescott-the District's chief financial officer, a member of the small group of staff who continued to work in-person after the health orders took effect, and the person (along with legal counsel) with whom Stringfellow consulted before terminating Gutsch-also made a direct statement to Gutsch arguably conveying retaliatory motive. Around March 23, she said to Gutsch that "all the essential workers are here," meaning working in person. Prescott's comment, like Stringfellow's, is ambiguous, but it could be interpreted to imply that Gutsch was rendering herself inessential by working remotely. The meaning and probative weight of her remark should be evaluated in context. (Reid v. Google Inc., supra, 50 Cal.4th at pp. 541, 545; see, e.g., Jorgensen v. Loyola Marymount University (2021) 68 Cal.App.5th 882, 886, 888-889 [discriminatory remark by decisionmaker's close advisor was relevant and probative at summary judgment stage].) Given that Prescott made the comment within a few days of Gutsch's whistleblowing, and that she was directly involved in the decision to terminate, a trier of fact could conclude that the comment was probative direct evidence of District decisionmakers' motivations shortly before Gutsch was terminated.
Coupling Stringfellow's and Prescott's comments with the close temporal proximity of Gutsch's whistleblowing and her termination is on its own sufficient to establish Gutsch's prima facie case, or at least to raise triable issues of material fact. (See Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 365-366 [temporal proximity of whistleblowing in March and April, and adverse employment action on April 2, in addition to other evidence, raised a triable issue of material fact regarding causation].) Gutsch has cited additional evidence of retaliatory motive. She points to her text messages with Stringfellow on March 22, when Stringfellow continued to push Gutsch to work in the office, at least part time, notwithstanding that Stringfellow had nominally agreed to allow Gutsch to work remotely. When Gutsch once again stated her belief that inperson work violated the health orders, Stringfellow confirmed logistics of the principal interviews planned for the next day, and then, according to Gutsch, cut her out of the hiring process and other human resources functions altogether. Gutsch also notes that Stringfellow did not provide any contemporaneous reasons for her termination and never provided a written review of her work in the two months she was employed there; District policy required Stringfellow to provide more than one such review during Gutsch's six-month probationary period. While this circumstantial evidence is not especially compelling on its own, it does bolster the direct evidence of retaliatory motive.
The District urges a different interpretation of the circumstantial evidence, noting, for example, that Gutsch was not entitled to a review before her termination, that Gutsch was not stripped of all of her duties or access to District databases or technology, that Stringfellow approved her request to work remotely, that she was provided a laptop to do so, and that her position was not filled for 18 months following her termination. But even if the District's critiques are valid, they do not eviscerate the evidence Gutsch has provided supporting her prima facie case. Instead, at most, they confirm the existence of triable issues of material fact that render summary judgment improper.
We also conclude that the closer temporal proximity between Gutsch's termination and the performance errors the District has cited in support of her termination does not compel the legal conclusion that Gutsch's whistleblowing was not a contributing factor to her termination. Although the performance errors occurred closer in time to Gutsch's termination than her reporting did-which the trial court viewed as severing the causal connection between her reporting and her termination-it would be reasonable for a trier of fact to conclude alternatively that Stringfellow made a concerted effort after Gutsch's reporting to document pretextual bases for terminating her, and then terminated her immediately upon amassing what she considered sufficient documentary evidence to support the termination. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 723 [directing employee to build a file on employee's performance could be seen by factfinder "as searching for a rationale with which to retroactively bolster a decision to dismiss"]; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1062 [employer's solicitation of negative feedback regarding employee following employee's report of employer's unlawful conduct was strong evidence of retaliatory motive]; cf. Buhl v. Abbott Laboratories (9th Cir. 2020) 817 Fed.Appx. 408, 411 [unpublished; inference of unlawful discrimination arising from temporal proximity of whistleblowing and termination dispelled where in the interim the employer provided employee "a memorandum that explained in detail its concerns with [the employee's] performance, its expectations going forward, and the consequences [the employee] would face if he failed to meet those expectations"].)
We also do not find the District's reliance on Arteaga persuasive on this point. There, only after the terminated employee knew he was under investigation for misconduct and poor performance did he engage in protected activity. (Arteaga, supra, 163 Cal.App.4th at pp. 353-354, 357.) The court concluded that the asserted connection between his protected activity and eventual termination was weak because he was fired after the investigation confirmed his poor performance, and none of the other 40 employees who had engaged in the same protected activity were terminated. (Ibid.)
B. Same decision defense
The District argues that it is still entitled to summary judgment because undisputed facts show that it would have made the same decision to terminate Gutsch even if she had not engaged in protected activity, citing the three errors on March 31 and April 2 and Stringfellow's declaration. But the information the District has furnished about the cited errors does not clearly and convincingly establish that they warranted Gutsch's immediate termination, particularly when some evidence could be interpreted as indicating that Stringfellow cited the errors as pretext for a decision she made at least in part due to retaliatory animus.
"[T]he objective soundness of an employer's proffered reasons [for termination] supports their credibility," although bad reasons that are not discriminatory are permissible. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358; see also Scheer v. Regents of the University of California, supra, 76 Cal.App.5th at p. 921 ["liability cannot be imposed merely because the employer's stated reasons [for an adverse action] 'are found wanting. But [the fact finder] can take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer's actions, or have instead been asserted to mask a more sinister reality' "].) We perceive weaknesses in the District's assertion that Gutsch's March 31 and April 2 errors, at least given the sparse information about them in the record, justified her termination.
Gutsch's inclusion of the previous month's items in the first personnel action report she prepared for the District board meeting appeared to be a minor error corrected before the report was ever due or submitted. Nothing in the record shows that she had already been trained on this detail and failed to follow that training.
There is almost nothing in the record to provide any context for the reminder email about the SELPA pupil count. The recipients were BCC'd and the email was addressed to "everyone," so it is impossible to tell how many people received it besides Gutsch and Stringfellow, and whether it was anything other than a routine reminder sent as a matter of course. While the email referred to certain tasks that had to be completed, there is nothing in the record to show that the email was sent only to people who had failed to complete certain required tasks, and if so, when those tasks should have been completed. Because the email was a "reminder," its implication is that there was still sufficient time to complete the required tasks before the pupil count occurred. Presumably the District had in its possession information that would shed more light on the email's significance, but it did not include it with its motion. Based on the scant information in the record, it is difficult to see how the sending of the email established a basis for Gutsch's termination.
As to the employee training-which does appear to be more impactful than the other two incidents-we note that Gutsch was asked to "figure out" how to perform the task without any training and the District has not disputed that she did so on her first try with 95 percent accuracy. While we certainly can understand that Stringfellow and the employee-recipients of the training might have been frustrated by Gutsch's imperfect performance of this task, we cannot conclude as a matter of law that a five percent error rate indicated a deficient performance, let alone was cause for termination. That Gutsch was provided informal coaching on several seemingly important payroll matters immediately before she blew the whistle also could be interpreted in her favor, showing that although she had made mistakes, her pre-whistleblowing mistakes did not lead to her termination.
Stringfellow's statements in support of Gutsch's termination are likewise subject to different reasonable interpretations. Her statement that Gutsch did not work well with the rest of the administrative team could be interpreted to mean that Gutsch's protected whistleblowing created friction because Stringfellow and others did not care to hear her persistent complaints that the health orders required staff to work remotely whenever possible, and that Stringfellow did not appreciate the pushback when she hinted that Gutsch should work in the office, "at least partially," even after approving her request to work remotely. Prescott's "snide comment" reinforces that interpretation of the evidence, as a possible expression of displeasure with Gutsch's insistence on working remotely. The same could be said of Stringfellow's explanation that she questioned Gutsch's professional judgment and that Gutsch was not able to take direction without being "confrontational"-i.e., continuing to assert that unnecessary in-person work violated the health orders.
The District resists the more benign interpretation of Gutsch's errors, but pointing to different reasonable interpretations is not enough to prevail at the summary judgment stage. (Colarossi, supra, 97 Cal.App.4th at p. 1155 ["The fact there is evidence which would support either conclusion convinces us the trial court erred in granting summary judgment"].) Indeed, "many employment cases present issues of intent[] and motive . . ., issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.) While we find the question close, we conclude that Gutsch has raised triable issues of material fact in support of her section 1102.5 claim that preclude the entry of summary judgment in the District's favor.
III. Section 6310
Section 6310 prohibits an employer from discharging an employee because the employee has made a report regarding workplace safety or health to their employer. (§ 6310, subd. (a)(1).) The analytical framework for evaluating a claim of whistleblower retaliation pursuant to section 6310 is somewhat different from that for a section 1102.5 claim. Here, however, the parties have pressed virtually the same arguments on the same issues as those presented with respect to Gutsch's section 1102.5 claim and we will not elaborate on the immaterial analytical differences.
A. Prima facie case
For the same reasons that Gutsch established her prima facie case of retaliation pursuant to section 1102.5, we conclude that Gutsch established her case pursuant to section 6310. The District advances largely the same arguments in opposition, except to state that Gutsch's complaints about inperson work are not sufficient because the voicing of a fear about one's own safety in the workplace does not necessarily constitute a complaint about unsafe working conditions for purposes of section 6310. The county health order, however, states that the violation of any of its provisions-by engaging in nonessential in-person contact-"constitutes an imminent threat to public health." We do not perceive Gutsch's report as merely voicing an inconsequential fear about her own personal safety.
B. Legitimate nonretaliatory reasons
As discussed above, the District proffered evidence of its legitimate, nonretaliatory reasons for terminating Gutsch.
C. Pretext
We explained above that the District did not adequately address the direct statements by Stringfellow and Prescott. (Morgan, supra, 88 Cal.App.4th at p. 69 ["With direct evidence of pretext,' "a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.' . . . The plaintiff is required to produce 'very little' direct evidence of the employer's discriminatory intent to move past summary judgment' "].) Moreover, Gutsch's intervening errors do not, as a matter of law, compel judgment in the District's favor. Because Gutsch's errors are of the type that a person might reasonably make in a new job, and because she had not been fired for her earlier mistakes or provided a written performance evaluation or a contemporaneous explanation for her termination, a factfinder could find that the post-hoc assertion of those errors as the legitimate, nonretaliatory basis for her termination was pretextual.
DISPOSITION
The judgment is reversed. Gutsch may recover her costs on appeal.
WE CONCUR: STREETER, Acting P. J., DOUGLAS, J. [*]
[*] Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.