Opinion
A166619
11-28-2023
STEPHEN MUNGOVAN, et al. Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, et al. Defendants and Respondents
NOT TO BE PUBLISHED
Order Filed Date 12/19/23
San Francisco City & County Case No. CGC-19-580374
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
THE COURT [*] :
It is ordered that the opinion filed herein on November 28, 2023, be modified as follows:
At page 9, at the end of the Section I discussion regarding "Applicable Law" and before the Section II discussion regarding "General Appearance" begins, the following paragraph is inserted:" "We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.) Thus, a reviewing court "will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons." (Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1402.)."
At page 13, in the second full paragraph, the sentence "In addition as Plaintiffs recognize, the trial court decided Plaintiffs' section 1102.5 claim under the standard set forth in Lawson." is deleted and replaced with the following: "In addition, the section 1102.5 claims considered by the trial court were decided under Lawson."
At page 20, the last sentence of the continuing paragraph is revised to read as follows: "Plaintiffs present no evidence that Callahan knew or controlled any witnesses who provided accounts of Plaintiffs' actions, or that she interfered with Burke's investigation."
At page 22, at the conclusion of the second full paragraph, the following is inserted as footnote 4: "We reject Plaintiffs' contention that the trial court granted summary judgment erroneously because the City Defendants failed to establish no triable issue of fact regarding each individual defendant's liability on each alleged claim. Their assertion lacks sufficient merit to warrant discussion. (People v. Rojas (1981) 118 Cal.App.3d 278, 289-290.) Having shown Plaintiffs' inability to establish their causes of action against all defendants, no additional showing was necessary."
The petition for rehearing filed December 7, 2023, is denied. There is no change in the judgment.
PETROU, J.
Plaintiffs and appellants Stephen Mungovan and Chris Grady (collectively Plaintiffs) appeal from summary judgment entered in favor of defendants and respondents the City and County of San Francisco (the City) and certain current and former City employees. We affirm.
Factual and Procedural Background
Changes to Qualifications for Housing Inspector Position
On March 9, 2018, the City's Department of Human Resources (DHR) and Department of Building Inspection (DBI) publicly posted proposed changes to the minimum qualifications required to apply to housing inspector positions within DBI, including the class 6270 housing inspector position. According to the City, the changes were made to diversify the pool of class 6270 housing inspectors and to attract more applicants from communitybased organizations.
In May 2018, Plaintiffs - who were and still are class 6270 housing inspectors - submitted a written protest regarding the proposed changes to DHR Director Micki Callahan, claiming the changes would lead to the hiring of unqualified housing inspectors and therefore would jeopardize public health and safety. Plaintiffs also met with DHR Classification and Compensation Director Steven Ponder to discuss their protest.
In late October 2018, DHR adopted and posted the proposed changes to the hiring standards for the class 6720 housing inspector position. Mungovan appealed the decision to the Civil Service Commission (Commission), which oversees personnel matters for the City. In August 2019, the Commission denied Mungovan's appeal.
Mungovan's Complaint Regarding Qualifications of Fellow Inspectors
In August 2018, Mungovan filed a separate complaint with the Commission asserting that five housing inspectors who had been hired between 2013 and 2016 - L.B., J.B., C.D., B.L., and M.L. - were not qualified for their positions based on lack of experience. Mungovan requested the Commission investigate the qualifications of these five inspectors.
In November 2018, after reviewing records and inquiring with DBI's human resources staff, the Commission responded to Mungovan's complaint with a written letter concluding that the hirings complied with applicable policies and procedures.
Grady's Unsuccessful Application to Chief Housing Inspector Position
While Plaintiffs' protest to DHR and Mungovan's complaint to the Commission were pending, Grady applied for promotion to the class 6274 chief housing inspector position. In late September 2018, Grady was notified he did not possess the minimum qualifications, specifically" 'at least two (2) years in a lead or supervisory capacity equivalent to class 6272 Senior Housing Inspector with the City and County of San Francisco, which includes supervision of professional code enforcement staff.'" Grady unsuccessfully protested the determination to the human resources department. DBI's HR department sent two letters to Grady addressing his protest.
Altercation Resulting in Cubicle Changes
In early October 2018, Mungovan emailed DBI Human Resources Manager Emily Morrison a complaint in which he alleged that B.L. and C.D. (two of the housing inspectors he had claimed were unqualified) harassed and "mobbed" him and created a hostile work environment by verbally attacking him. DBI thereafter changed Plaintiffs' cubicle assignments. Mungovan then forwarded his complaint to DHR Director Callahan, who in turn forwarded it to DHR Equal Employment Opportunity Division (DHR EEO) Director Linda Simon for review.
In March 2019, DHR EEO responded to Mungovan's complaint. DHR informed Mungovan that EEO did not investigate his complaint as they found the allegations did not raise an inference of an EEO violation.
EEO Complaints Against Plaintiffs
In early 2019, housing inspector C.D., an Asian woman, filed a complaint with DHR EEO alleging that Grady had made racist and sexist comments in front of or to her, including: (1) describing a naked woman's body, including her breasts; (2) remarking that a female coworker was" 'dirty'" and that he" 'wouldn't sleep with her' "; (3) stating that two coworkers should straddle C.D; and (4) claiming that" 'people like [C.D.] are dirty.'" C.D. alleged that while speaking of the changes to the class 6270 housing inspector position minimum qualifications in her presence, Grady stated DBI had" 'too many of these people, especially Asians,'" and that he should include a picture of himself with" 'squinty eyes'" on his resume to get a promotion.
In May 2019, another housing inspector, L.B., also filed a complaint against Plaintiffs with DHR EEO. L.B. alleged Grady did the following: referred to a transgender tenant as" 'one of those dudes with boobs'" and another as a" 'crossdresser,' "; said that another client had requested Grady perform a" 'vagina inspection' "; mimicked the accent of an agent property manager in his presence; bragged about calling a defendant a "black boy" and saying that he "looked guilty to me" to get out of jury duty; and said of a Hispanic male colleague who had just been promoted, "I don't know how he got the position, he can barely speak English." Grady provided a written response denying the charges.
In late 2019, DHR EEO found Plaintiffs more than likely engaged in the conduct they were accused of by both C.D. and L.B. Grady received two three-day suspensions (one suspension for each complaint), Mungovan received two verbal warnings (one for each complaint), and both Mungovan and Grady were required to complete the City's anti-harassment prevention training.
Plaintiffs' Unsuccessful Bids for Promotion to Senior Housing Inspector
In 2020, Mungovan and Grady applied for promotion to the class 6272 senior housing inspector position. At the time, there were three open positions, and six applicants (including Mungovan and Grady) interviewed for the openings. Mungovan and Grady received the lowest interview scores of the six applicants, and neither was selected for the position.
Plaintiffs' Lawsuit
Plaintiffs sued the City alleging three causes of action: (1) violation of Labor Code section 1102.5; (2) violation of freedom of speech under 42 U.S.C. § 1983 (section 1983); and (3) violation of due process under section 1983. Their second amended complaint (SAC) added eight defendants in both their individual and official capacities: former DBI Director Tom Hui; DBI Deputy Director Daniel Lowrey; former DBI Human Resources Manager Morrison; former DBI Chief Housing Inspector Rosemary Bosque; DBI Chief Housing Inspector James Sanbonmatsu; DHR Director Callahan; DHR EEO Director Simon; and DHR Director of Classification and Compensation Ponder.
All further statutory references are to the Labor Code unless otherwise specified.
Plaintiffs alleged they had complained to various City entities, including DHR and the Commission, that the changes to the DBI class 6270 housing inspector position minimum qualifications led to the hiring of unqualified housing inspectors, a danger to public health and safety. Plaintiffs alleged that, because of their complaints, they were retaliated against or harassed by unqualified housing inspectors and the individually named defendants caused or allowed such retaliation and harassment. They further alleged they were denied opportunities for promotion in favor of unqualified applicants.
The City answered with a general denial and subsequently informed Plaintiffs' counsel it would be representing five of the eight individuals sued: Bosque, Callahan, Ponder, Sanbonmatsu, and Simon (the City and these individual defendants are collectively referred to as "City Defendants").
City Defendants' Motion for Summary Judgment
On July 23, 2021, City Defendants moved for summary judgment on Plaintiffs' entire complaint, or, in the alternative, summary adjudication of each cause of action.
They asserted they were entitled to summary judgment on Plaintiffs' first cause of action under section 1102.5 because much of the conduct complained about did not constitute adverse employment actions as a matter of law. In addition, no causal link existed between the alleged adverse employment actions and Plaintiffs' complaints. With respect to the second cause of action alleging a violation of their federal free speech rights under section 1983, City Defendants argued that Plaintiffs' alleged protected speech was not a matter of public concern and they did not suffer an adverse employment action as a result of any protected speech. City Defendants further contended Plaintiffs could not establish a causal link between any adverse employment action and their complaints. With respect to the third cause of action alleging a violation of federal due process rights under section 1983, City Defendants argued Plaintiffs had received all the due process to which they were entitled as they had both notice and an opportunity to respond.
In opposition, Plaintiffs argued that City Defendants' motion was procedurally deficient for various reasons, including its failure to acknowledge the City's representation of all individually named defendants and its general disregard for addressing the liability of those individual defendants. Plaintiffs argued there was ample evidence demonstrating retaliation and no merit to City Defendants' various contentions. In addition, Plaintiffs requested a continuance of their pending trial date to complete discovery needed to fully oppose the summary judgment motion. After City Defendants submitted their reply brief and the court conducted an initial hearing, the court took the matter under submission.
On January 11, 2022, the presiding judge of the trial court closed discovery and granted the parties their requested continuance of the trial date (to March 28, 2022). On January 12, the trial court continued the hearing on City Defendants' summary judgment to March 7, 2022 pursuant to Code of Civil Procedure section 437c(h). The court authorized Plaintiffs to file a supplemental brief and City Defendants to respond.
We take judicial notice of these orders as records of the trial court. (Evid. Code, §§ 452, subd. (d).)
In late February 2022, Plaintiffs filed their supplemental opposition brief in which they addressed Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703 (Lawson), a California Supreme Court opinion addressing the legal standard for section 1102.5 claims published after the parties' initial round of briefing. City Defendants then submitted their supplemental reply, which included evidence - deposition excerpts and exhibits - to address the new burden of proof established by Lawson.
Trial Court Grant of Summary Judgment
After a hearing, the trial court issued a March 7, 2022 order granting City Defendants summary judgment on all claims.
As an initial matter, the court found the City represented itself and five of the individual defendants named, and that the City's demurrer to Plaintiffs' SAC did not constitute a general appearance on behalf of all individual defendants.
With respect to the section 1102.5 claim, the court cited to the standard set forth in Lawson, supra, 12 Cal.5th 703, and ruled City Defendants had shown by clear and convincing evidence that the alleged adverse employment actions suffered by Plaintiffs would have occurred for legitimate, independent reasons.
As to Plaintiffs' section 1983 free speech claim, the court found Plaintiffs failed to provide evidence establishing their complaints were a substantial or motivating factor the denial of their requested promotions. As to Plaintiffs' section 1983 due process claim, the court found Plaintiffs failed to produce any evidence they were deprived of life, liberty, or property, and they failed to create a triable issue of fact on the issue of due process.
The trial court subsequently entered judgment in favor of City Defendants. This appealed followed.
Discussion
I. Applicable Law
A defendant is entitled to summary judgment if the defendant establishes a complete defense to a cause of action or shows that one or more elements of a cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) If the defendant makes this requisite showing, the burden shifts to the plaintiff to present facts that establish a triable issue as to one or more material facts. (Baughman v. Walt Disney World Co. (2013) 217 Cal.App.4th 1438, 1445.) Summary judgment is appropriate 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).)
We review an order granting summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
II. General Appearance
Plaintiffs contend the trial court erred in finding the City did not make a general appearance on behalf of all individually named defendants by filing a demurrer to the SAC seeking dismissal of all individually named defendants. In their view, the City's filing of the demurrer relieved them of individually serving Hui, Lowrey, and Morrison and rendered their subsequent dismissal due to lack of service erroneous. We are not persuaded.
As noted, Plaintiffs added as individual defendants eight current and former City employees to the SAC: Hui; Lowrey; Morrison; Bosque; Sanbonmatsu; Callahan; Simon; and Ponder. The City - as the sole moving party - filed a demurrer seeking dismissal of all individual defendants on the basis that their inclusion was redundant since claims against municipal officers were essentially claims against the City. In their brief, the City included the following note: "Defendant [the City] does not now appear for these defendants or claim to represent them at this point in time, as they have not yet been served, but moves on its own accord to have the other defendants dismissed. Pursuant to [Code of Civil Procedure] 418.10(e)(1), Defendant understands that this demurrer does not constitute an appearance on their behalf." The trial court overruled the demurrer but did not address whether the City's demurrer constituted an appearance on behalf of individual defendants.
Later, the City Attorney informed Plaintiffs' counsel she would be representing certain individual defendants and clearly stated she would not accept service on behalf of Hui, Lowrey, and Morrison and the City would "most likely not be defending Hui or Lowrey due to conflicts of interest." In its motion for summary judgment, the City explained the motion was not made on behalf of Hui, Lowrey, or Morrison.
In its order granting summary judgment, the trial court concluded the City had not made a general appearance on behalf of all defendants based on its demurrer to Plaintiffs' SAC, citing Brock v. Fouchy (1946) 76 Cal.App.2d 363, 371 (Brock)), as support.
" 'A general appearance by a party is equivalent to personal service of summons on such party.'" (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 (Dial 800).)" 'A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.'" (Ibid.) "Thus, if a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance." (Id at p. 53.)
Contrary to Plaintiffs' assertion, the City's demurrer did not constitute a general appearance on behalf of any individual defendant. The City was the sole moving party challenging Plaintiffs' SAC; it did not file the demurrer on behalf of any party other than itself. There was no claim by the City that it was representing any of the individual defendants and, indeed, it expressly disavowed such representation. Further, based on the arguments raised in the demurrer regarding redundancy, the City had its own self-interested reasons for seeking the dismissal of individual defendants separate from any benefit to those individuals. As the City was the only moving party seeking relief from the court, the demurrer constituted a general appearance solely by the City.
Plaintiffs spend considerable time addressing the trial court's sua sponte citation of Brock, supra, 76 Cal.App.2d at p. 363. Even if we were to assume the court miscited Brock, we would not find error since Plaintiffs have provided no relevant legal authority in support of their position that filing a demurrer on one's own behalf constitutes a general appearance for non-moving co-defendants. (See Singman v. IMDB.com, Inc. (2021) 72 Cal.App.5th 1150, 1151 [appellant bears the burden of establishing legal error through citations to the record and relevant legal authority].) The case Plaintiffs do cite, Dial 800, supra, 118 Cal.App.4th at p. 32, draws distinctions between general and special appearances but provides no authority extending the City's general appearance to co-defendants who never joined the City's demurrer or filed their own demurrers with the court.
Plaintiffs also argue the City made a general appearance by failing to specify statutory grounds for its demurrer and by asserting arguments on the merits. Even if we were to assume this contention is correct, the City's actions constituted a general appearance solely by the City, not by any individual defendant who took no part in the demurrer.
III. Section 1102.5
Plaintiffs argue they presented triable issues of material fact on their retaliation claims under section 1102.5. We disagree.
Section 1102.5 was enacted to encourage workplace whistleblowers to report unlawful acts without fear of retaliation. (Lawson, supra, 12 Cal.5th at p. 709.) Section 1102.5 subdivision (b) provides: "An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information . . . to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance. . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties." (§ 1102.5.)
Section 1102.6 states: "In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5." (§ 1102.6.) Among other things, section 1102.6 provides an employer with a "new statutory affirmative defense to employer liability for retaliation in violation of the whistleblower statute when the employer can show that it would have made the same decision for legitimate and independent reasons." (Assem. Com. on Judiciary, Analysis of Sen. Bill 777 (2003-2004 Reg. Sess.) as amended May 29, 2003; Lawson, supra, 12 Cal.5th at p. 712.)
The California Supreme Court recently clarified that claims brought under section 1102.5 follow a two-step burden-shifting process. (See Lawson, supra, 12 Cal.5th at p. 718.) First, a plaintiff must establish by a preponderance of the evidence that retaliation for an employee's protected activities was a contributing factor in a contested employment action. (Id. at p. 712.) Second, and only if a plaintiff has made the requisite showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity. (Ibid.)
A. Remand is not Required
Plaintiffs argue that remand is required for City Defendants to establish their entitlement to summary adjudication of the section 1102.5 claim "under the correct framework, with full briefing of the issue, and a full opportunity for [Plaintiffs] to address whatever evidentiary showing [City Defendants] seek[] to make, applying the standard set forth in Lawson " As both parties had the opportunity to brief the Lawson standard and the court applied that standard, we disagree.
City Defendants moved for summary judgment under section 1102.5 under a non-Lawson legal framework since the motion was filed in July 2021 and Lawson was not decided until January 2022. However, the parties addressed Lawson as part of the summary judgment proceeding in the additional round of briefing. In February 2022 Plaintiffs submitted a brief that specifically addressed Lawson, followed by City Defendants' submission of their brief on Lawson with additional evidence to meet the burden established by Lawson. In addition, as Plaintiffs recognize, the trial court decided Plaintiffs' section 1102.5 claim under the standard set forth in Lawson. Under these circumstances, a remand to require City Defendants to move under Lawson would have no purpose other than to waste time and judicial resources.
Plaintiffs' reliance on Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904 (Scheer) is misplaced. In Scheer, the employer successfully moved to summarily adjudicate a section 1102.5 cause of action utilizing a non-Lawson framework. (Scheer, at p. 914.) Lawson was issued after summary judgment was granted and while the plaintiffs appeal was pending. (Scheer, at pp. 912-913.) The court of appeal reversed, explaining that because the employer's moving papers in the trial court "failed to employ the applicable framework prescribed by . . . section 1102.6," the employer had not met its initial burden on summary adjudication and its motion should have been denied. (Scheer, at p. 914.) Unlike in Scheer, here the parties addressed Lawson as part of their summary judgment briefing and the trial court adjudicated Plaintiffs' section 1102.5 claim under the correct Lawson standard.
Finally, Plaintiffs do not specify what arguments they were unable to assert in their post-Lawson supplemental opposition, nor do they identify any arguments or evidence they were unable to present in response to City Defendants' supplemental briefing and evidentiary submission. In short, they have not shown they have been prejudiced such that reversal is necessary. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 528 ["There is no presumption of prejudice. [Citations.] Instead, the burden to demonstrate prejudice is on the appellant."]; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 ["[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice."].)
B. Summary Judgment Analysis
1. Adverse Employment Actions
For our merits analysis, we must first determine which contested employment action is at issue. Plaintiffs contend the trial court erred in finding the denials of Plaintiffs' requests for promotion were the only adverse employment actions at issue. They suggest Mungovan's altercation with C.D. and B.L., the City's failure to investigate Mungovan's complaint over the altercation, and Plaintiffs' cubicle reassignment constituted adverse employment actions. They also contend that the disciplinary actions resulting from the EEO complaints against them, including Grady's work suspension, were adverse employment actions. We agree in part.
Aside from the promotion denials, our analysis is limited to these enumerated adverse employment actions since those are the actions Plaintiffs have identified in their opening brief as erroneously disregarded by the trial court. We disregard additional allegedly adverse employment actions as the issues on appeal are framed by Plaintiffs' opening brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [considerations of fairness demand that appellant present all points in the opening brief].)
An adverse employment action" 'materially affect[s] the terms, conditions, or privileges of employment.'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161 (Featherstone).) "In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, italics omitted (Roby).)" 'A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.'" (McRae v. Department of Corrections &Rehabilitation (2006) 142 Cal.App.4th 377, 386 (McRae).)
We agree the disciplinary actions taken against Plaintiffs after DHR EEO found they had more than likely engaged in the conduct alleged in the complaints - including Grady's suspensions and Mungovan's verbal warnings - were adverse employment actions. (See Roby, supra, 47 Cal.4th at p. 706; cf. Dahlia v. Rodriguez (9th Cir. 2013) 735 F.3d 1060, 1079 [placement on administrative leave and accompanying stigma constitute adverse employment action].)
We do not agree, however, that Mungovan's altercation with C.D. and B.L.; DHR EEO's failure to investigate Mungovan's complaint over the altercation; and Plaintiffs' cubicle reassignment were adverse employment actions. There is no evidence Mungovan's altercation with C.D. and B.L., fellow housing inspectors, was the product of any "official action" by the City or any of its departments, or that it materially affected the terms and conditions of Plaintiffs' employment. (Roby, supra, 47 Cal.4th at p. 706; Featherstone, supra, 10 Cal.App.5th at p. 1161.) The City's decision to not investigate Mungovan's ensuing complaint about the altercation - which DHR EEO reached due to lack of jurisdiction after it concluded it was not an EEO matter - also does not constitute an adverse employment action because there was no evidence that it materially affected the terms and conditions of Plaintiffs' employment. (Ibid.) Further, although the cubicle reassignment bothered Plaintiffs, it was not the type of change actionable under section 1102.5. (McRae, supra, 142 Cal.App.4th at p. 386 [" 'If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."' ")
Plaintiffs contend the cubicle reassignment "made it more difficult to perform their jobs." To support the point, they cite to their own declarations in which Grady states the move "made it harder to complete [their] work," and Mungovan echoes this point. These types of conclusory statements do not provide sufficient evidence to find an adverse employment action, nor do they create a triable issue of fact on the point. (Cf. King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 ["plaintiffs subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations"].)
Accordingly, the adverse employment actions at issue are limited to: (1) the City's decision to not advance Grady's application for chief housing inspector in 2018; (2) the disciplinary actions taken against Plaintiffs in late 2019 and early 2020, including Grady's suspension, following C.D. and L.B.'s complaints to DHR EEO; and (3) the City's decision to not promote Grady or Mungovan to senior housing inspector later in 2020.
2. Plaintiffs Have Raised Triable Factual Issues as to Whether Their Complaints Were a Contributing Factor to Adverse Employment Actions
Having established the adverse employment actions at issue, we assume arguendo that Plaintiffs established triable issues of fact existed under the first step of the Lawson analysis. Specifically, we assume City Defendants are unable to demonstrate Plaintiffs' inability to prove their complaints about changes to the housing inspector minimum qualifications were a "contributing factor" to the adverse employment actions they experienced. Accordingly, we turn to second step of the Lawson analysis.
3. Plaintiffs Did Not Raise Triable Issue of Fact as to Legitimacy of City's Reasons for Adverse Employment Actions
With respect to the second step under Lawson - whether the adverse employment actions would have occurred for legitimate reasons even if Plaintiffs had not complained - City Defendants satisfied their burden of demonstrating by clear and convincing evidence that the employment actions would have occurred for legitimate, independent reasons even if Plaintiffs had not engaged in protected whistleblowing activities. Plaintiffs have not carried their burden on summary judgment of establishing a triable issue of material fact on this point.
i. Grady's Unsuccessful Application to Chief Housing Inspector
City Defendants presented clear and convincing evidence that the City did not advance Grady's application to chief housing inspector for legitimate, independent reasons, namely, his failure to meet the minimum qualifications for the chief position.
Grady was a class 6270 housing inspector seeking a class 6274 chief housing inspector position, which would have skipped a position in the series, the class 6272 senior housing inspector position. The eligibility requirements to be a 6274 chief housing inspector included at least two years in a lead or supervisor capacity equivalent to the class 6272 senior housing inspector, including supervision of professional code enforcement staff. DBI HR determined that Grady had never been appointed or assigned to work as a class 6272 housing inspector nor did he ever supervise professional code enforcement staff. This clearly established legitimate, independent reasons for not advancing Grady's application to chief housing inspector.
In their opening brief, Plaintiffs focus exclusively on evidence from which a reasonable juror could infer that Grady's whistleblower challenge to the change in the housing inspector standards was a contributing factor to his failure to be promoted. He does not, however, identify any triable issues of fact with respect to the evidence of the City's finding that he lacked the minimum qualifications for the chief position.
In their reply brief, Plaintiffs proffer evidence that former Chief Housing Inspector Bosque had previously supported Grady as qualified based on his experience and expertise but "threatened" both Plaintiffs shortly after their whistleblower complaints. Around the same time, Grady was declared unqualified to submit his application for the chief position. We do not find such evidence adequate to create a factual dispute. The determinations regarding Grady's minimum qualifications to apply for the chief position were made by Patrick Cheng of the General Services Agency, Human Resources Administration. There is no evidence Bosque played any role in determining whether Grady had the minimum qualifications for the chief position.
ii. Disciplinary Actions Following EEO Complaint
City Defendants also presented clear and convincing evidence that the City imposed disciplinary actions against Plaintiffs, including work suspensions for Grady, for legitimate, independent reasons unrelated to their whistleblower complaint. After investigating C.D.'s complaint, DHR concluded "[t]he evidence established more likely than not, Grady made nine unwelcome and offensive comments that were sexual in nature or due to sex and race" and "Mungovan made one unwelcome and offensive comment based on sex." And after investigating L.B.'s complaint, DHR concluded "[t]he evidence established that more likely than not, Grady made seven unwelcome and offensive comments that were sexual in nature or due to gender identity, national origin, or race" and "Mungovan made one unwelcome and offensive comment based on national origin, . . . all in violation of the City's EEO Policy." This evidence sufficiently established legitimate, independent reasons for the disciplinary action taken against Plaintiffs.
Plaintiffs contend the person who upheld the EEO findings, DHR Director Callahan, had earlier "demonstrated her clear bias against [Plaintiffs] by not only allowing, but encouraging [L.B.] when he denigrated [Mungovan] during the August 2019 Civil Service Commission hearing." To the extent Plaintiffs proffer this evidence to argue that the disciplinary actions were not legitimate but the result of bias by a City official, we disagree. While Callahan determined whether there was sufficient evidence to support the claims of offensive and unwelcome conduct, it was EEO Programs Specialist Jennifer Burke - not Callahan - who completed the investigation into both C.D.'s and L.B.'s complaints. Both reports rely on multiple witnesses observing the racist and sexist comments. Both reports include determinations that the complainants were credible while Grady and Mungovan lacked credibility. Plaintiffs present no evidence that Callahan knew or controlled any of the witnesses who provided accounts of Plaintiffs' actions, or that she influenced or interfered with Burke's investigations.
iii. Plaintiffs' Applications to Senior Housing Inspector
Finally, City Defendants presented clear and convincing evidence that Plaintiffs were not promoted to class 6272 senior housing inspectors for legitimate, independent reasons unrelated to their whistleblower complaint. Plaintiffs were among a total of six applicants who interviewed for three open senior housing inspector positions. All six applicants were interviewed for the position. Mungovan and Grady received the lowest interview scores and they were not selected for promotion. City Defendants also provided testimony from interviewers - DBI Chief Housing Inspector Sanbonmatsu, Albert Ko of the Department of Public Works, and Jeff Buckley who was then with the Mayor's Office - who stated the reasons they scored each applicant in the manner they did. This evidence sufficiently established legitimate, independent reasons Plaintiffs received the lowest interview scores and were not promoted to senior housing inspector.
Plaintiffs identify three pieces of evidence they contend were ignored by the trial court and which they claim raise triable issues of fact as to whether their low interview scores were indeed legitimate reasons unrelated to their whistleblower complaint.
First, Plaintiffs refer to evidence that DBI Human Resources Manager Morrison vowed she would in no way allow Mungovan and Grady to be promoted to senior housing inspector. We disagree such evidence is enough to create a factual dispute. Plaintiffs have presented no evidence that Morrison was one of their interviewers for the job, and they identify no evidence that Morrison had any role during the candidate interview process or in how Plaintiffs' interviews were evaluated. They also provide no evidence that Morrison had a role in who was ultimately hired as senior housing inspector. Additionally, they provide no evidence that Morrison's comments were based on Plaintiffs' complaints about the changes to the minimum qualifications for class 6270 housing inspectors.
Second, Plaintiffs reference the interview panels for the senior housing inspector position, noting there were two panels consisting of six total interviewers, which included DBI Chief Housing Inspector Sanbonmatsu, former Chief Housing Inspector Bosque, and DBI Deputy Director Lowrey, all three of whom had been named defendants in Plaintiffs' lawsuit. Again, we disagree such evidence is enough to create a factual dispute. Plaintiffs presented no evidence that any of the low interview scores Plaintiffs received stemmed from their complaints about the changes to the minimum qualifications for class 6270 housing inspectors. For example, Buckley testified he gave Grady a particularly low score on a question related to skills and experience because his stated experience with commercial tenants and construction was not related to the position. He gave Mungovan a lower score related to a question on the inter-agency body the Chief Housing Inspector chairs, noting that Mungovan "didn't answer questions." Ko gave Grady a low score on skills and experience and noted "no code enforcement," an apparent reference to a lack of experience in that area. Moreover, the interview scores they received from these two interviewers, who they had not sued, were not substantially dissimilar from the scores Sanbonmatsu (who had been sued) gave them. Buckley gave both Plaintiffs a score of 13 out of 25. Ko gave each of them 12 out of 25. Meanwhile, Sanbonmatsu scored Grady 14 out of 25, and Mungovan 11 out of 25.
Third, Plaintiffs focus on the lack of an "objective" testing component for the senior housing position. They further puzzle over how M.L, L.B, and C.D. - fellow housing inspectors - ranked higher than them, despite Plaintiffs' "levels of professional expertise." Again, such speculative evidence does not create a factual dispute. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563-1564 [employee's" 'suspicions of improper motives . . . primarily based on conjecture and speculation'" clearly not sufficient to raise a triable issue of fact to withstand summary judgment].) Moreover, the interview scores received by M.L., L.B., and C.D. - 68, 65.5, and 46.5 points, respectively, out of 75 total points possible - were greater than those received by Mungovan and Grady who scored 36 and 39, respectively.
In sum, City Defendants demonstrated by clear and convincing evidence that Plaintiffs would have been denied promotion for legitimate, independent reasons even if Plaintiffs had not engaged in protected activity. Further, Plaintiffs have failed to raise any triable issue of material fact that would preclude summary judgment with respect to their section 1102.5 claim.
IV. Section 1983 (First Amendment)
Plaintiffs argue summary judgment on their section 1983 free speech cause of action was erroneous and they presented triable issues of material fact on their claim. We disagree.
"Section 1983 provides a cause of action against any 'person' who, under color of law, deprives any other person of rights, privileges, or immunities secured by the Constitution or laws of the United States. The term 'person' includes municipalities." (Ulrich v. City and County of San Francisco (9thCir. 2002) 308 F.3d 968, 983; 42 U.S.C. § 1983.)
To establish a prima facie First Amendment retaliation claim, the plaintiff must show: (1) he or she engaged in protected speech about a matter of public concern; (2) the defendant took an adverse employment action against him or her; and (3) the protected speech was a substantial or motivating factor for the adverse employment action. (Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 973.) "If the [plaintiff] discharges [this] burden, the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct." (Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr (1996) 518 U.S. 668, 675; Mt. Healthy City School Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274, 287; Eng v. Cooley (9th Cir. 2003) 552 F.3d 1062, 1070-72.)
As with our analysis of Plaintiffs' section 1102.5 claim, we assume arguendo that Plaintiffs established triable issues of fact with respect to their prima facie case under section 1983 with respect to the same adverse employment actions discussed ante. For the same reasons set forth above, we conclude City Defendants have shown they would have taken the same action even in the absence of the protected speech, and Plaintiffs have not shown a disputed issue of material fact on the matter.
In light of our conclusion, we need not address the parties' contentions under Monell v. Department of Social Services of City of New York (1978) 436 U.S. 658.
Disposition
The judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: Tucher, P.J., Rodriguez, J.
[*] Tucher, P.J., Petrou, J., and Rodriguez, J. participated in the decision.