Filed 1/28/20 Landi v. City and County of S.F. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

STEVEN J. LANDI,

Plaintiff and Appellant,

v.

CITY AND COUNTY OF SAN FRANCISCO,

Defendant and Respondent.

A152387

(San Francisco County

Super. Ct. No. CGC-15-548113)

Plaintiff and appellant Steven J. Landi, a former police officer employed by the San Francisco Police Department (SFPD), sued the City and County of San Francisco (City) alleging four age discrimination-related violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The City successfully moved for summary adjudication of appellant’s claims of age discrimination and retaliation and the remaining two claims went to trial. A jury returned a unanimous verdict for the City on claims of age harassment and failure to prevent age harassment. Landi now appeals, contending summary adjudication was improperly granted and the trial court committed reversible errors at trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

Appellant’s work at Traffic Company

Appellant was born in March 1956. He was hired by the SFPD in 1984 and worked out of several police stations over the course of his career. After waiting on a seniority list for 21 years, he passed his motorcycle training in 2006 and joined Traffic Company, SFPD’s motorcycle division. Traffic Company consists of individual motorcycle officers, known as “SOLOs.” During his tenure, appellant was an acknowledged expert on impaired driving enforcement, receiving commendations from his superiors and awards from Mothers Against Drunk Driving. Several years after he became a SOLO, Traffic Company was affected by two important policy changes involving officer seniority and enforcement priorities.

Traffic Company is a desired assignment within the SFPD because it pays more and has a higher profile than other assignments. Because the seniority list system for coveted positions like SOLOs had resulted in long wait times, the SFPD transitioned to the P1/P2 Rotational Plan (P1/P2 Plan) in 2007. Under the P1/P2 Plan, after 250 officers (P1s) had been permanently appointed from the existing seniority list, new SOLO officers (P2s) would be selected to serve five year terms, after which they would return to their station assignments. The last P1 SOLO joined Traffic Company in July 2013, and Traffic Company has become a younger unit overall. The P1/P2 Plan reduced the average wait time to become a SOLO from 23 years to about seven years.

Additionally, in early 2014, the City adopted the Vision Zero policy to reduce civilian traffic-related fatalities. Vision Zero is based on the premise that fatal collisions are caused by five primary factors: speed, running stop signs, running stoplights, failure to yield to pedestrians in crosswalks, and failure to yield before making a left turn. With the adoption of Vision Zero, Traffic Company was directed to focus on enforcing the law on those five violations. At trial, Deputy Chief Mikail Ali testified that following the policy change, 50 percent of Traffic Company’s enforcement efforts were directed to the five Vision Zero factors. Ali explained that the issuance of a higher number of citations related to the five factors was prompted by the goal of changing driving behavior to lessen fatal traffic collisions. Revenue generation was not the impetus behind the change, but rather a byproduct. Commander Ann Mannix testified that while impaired driving enforcement remained an important consideration, it is not one of the policy priorities of Vision Zero.

In conjunction with Vision Zero, Traffic Company adopted Crossroads, an automated system intended to better inform the deployment of enforcement resources. The system requires officers to use electronic handheld devices to write citations and to document traffic collision information. This information is then transferred from the devices into a database on a daily basis. Traffic Company began using the electronic handheld devices in September 2013. Using Crossroads, Traffic Company supervisors could monitor how many tickets each SOLO officer wrote every month. Commander Mannix would review Crossroads data “[j]ust about daily.” Deputy Chief Ali also relied on computer-assisted dispatch records as well as personal observations to evaluate an officer’s performance in Traffic Company. Officers throughout the SFPD were encouraged to contribute to traffic enforcement to further the goals of Vision Zero.

It is essentially undisputed that, compared to most of his peers, appellant did not issue many citations using the electronic handheld device. Appellant was criticized by his supervisors for having written only one citation in September 2013. Lieutenant Julian Hill testified that the September 2013 Crossroads report showed appellant had issued three citations. By comparison, the officer with the highest number of citations that month had issued 124. According to the City, appellant wrote on average fewer than 10 citations per month over a two-year period, while the most productive officer typically wrote at least 150 per month. Several supervisors counseled appellant about improving his performance in citation numbers.

Appellant had never been criticized about his job performance before. When he heard criticism for his September 2013 output, he defended himself by explaining that he had taught a three-day DUI class and had made seven DUI arrests, which included approximately 23 associated traffic violations that were not entered into the Crossroads system. These arrests were time-consuming, taking two to four hours to complete plus additional time if a case went to trial. His supervisors questioned, however, whether appellant’s DUI-related activities could account for all of his time on duty. Lieutenant Ossio testified that if appellant averaged three to five DUI arrests each month, and each arrest took four to five hours to process, the DUI arrests accounted for approximately 15 hours per month of appellant’s time. Ossio explained: “An officer typically works over 150 hours in a month. So what was Officer Landi doing the other 135 hours and how can I account for that to the taxpayers of the City and County of San Francisco[?]”

Appellant’s superior officers decided he should be placed on a performance improvement plan. Captain Denise Flaherty testified that Deputy Chief Ali had expressed concerns about appellant’s low citation numbers. She knew appellant excelled in DUI arrests, “[b]ut we need him to do the whole job, not just bits and pieces of what he would like to do.” Deputy Chief Ali testified that, aside from his high DUI arrest rate, appellant’s engagement was “incredibly low.” One DUI arrest a week might take three hours, so there were questions as to what he was doing with the other 37 hours of his shift. Appellant’s immediate supervisor, Sergeant Frank Harrell, chose to counsel him rather than formally put him on a performance improvement plan.

Work environment and age-based remarks

Appellant felt Traffic Company had become overly focused on issuing citations. According to appellant, Lieutenant Hill informed officers at lineup that they should do their own DUI investigations and not ask for help. Hill reportedly stated they would have to write more citations to avoid being subjected to internal affairs investigations and performance improvement plans. A sergeant reportedly stated at lineup that officers had to issue “twenty citations in an eight hour shift or you will not be ‘invited back,’ ” meaning they would not be allowed to work overtime. Officers were told that if they did not write five to six citations per shift, they would not be allowed extra time off or granted a change of work hours. Officers were encouraged to use peer pressure to achieve the citation goals. Appellant and a few other SOLOs were deemed “problem officers.” Appellant was told that if he did not write more tickets he was going to lose his holidays.

Appellant testified that he heard Lieutenant Hill remark at lineup in October 2013:

“I have old [Officer] Tom King writing tickets on the handheld machine, and you can do it too.” At a graduation event, new Traffic Company recruits were told that they should not “be like the old Solos who don’t do any work.” Appellant did not attend the event but the comment was related back to him. In January 2015, appellant overheard Lieutenant Pablo Ossio say that another SOLO officer was “so old he needs to use a catheter to keep from pissing on himself.” Appellant understood that Lieutenant Ossio was not referring to him. Appellant did not testify about any age-related remarks directed at him.

Appellant believed he was being harassed by his superiors. In August 2014, appellant was teaching a class on impaired driving. His class was interrupted and appellant was told he needed to contact Lieutenant Hill immediately. He testified that Hill’s tone was accusatory, asking him where he was and demanding paperwork for the class. Appellant had obtained approval in June to teach the course. In March 2015, Commander Mannix asked appellant if he was purposefully not writing tickets. She reportedly told him, “It’s still all about the numbers here.” Appellant replied that impaired driving arrests were the numbers Traffic Company was ignoring.

Appellant offered “me too” evidence from other witnesses to corroborate his claims. SOLO Officer Delos Christopher Putz filed an EEO complaint in 2014. Putz felt his supervisors were treating him unfairly due to his age, his association with appellant, and his status as a P1 SOLO. He was told at lineups that if he did not write tickets he would be denied overtime and would not get days off. Putz transferred to another unit to avoid his supervisor. He admitted he never heard his supervisors comment about any officer’s age.

Officer Jose Pubill was a 51-year-old SOLO officer at the time of trial. Pubill was criticized for writing too few citations, and heard his superiors state that officers could leave the unit if they did not like using the Crossroads device. He filed an EEO complaint in November 2013 based on harassment, but he did not assert he was being harassed because of his age.

Retired SOLO Officer Tom King testified he had been apprehensive about the new Crossroads technology. In December 2013, he filed an EEO complaint because he felt Captain Flaherty had abused him in front of his colleagues after he expressed disagreement with an unrelated reporting policy. He felt threatened when Lieutenant Hill told him he might have to retire early if he refused to use the electronic ticketing device. King responded to Hill’s directive to use the electronic ticketing device by saying he was too old and had too little time left in the department to learn new things.

Sergeant Mark Lantrip was a 57-year-old SOLO at the time of trial. He filed an EEO complaint because he felt officers in Traffic Company were being treated unfairly. When asked if he believed the treatment was related to age, he responded, “Yes and no. That is kind of hard to answer as far as the specifics.” On cross-examination he acknowledged he did not mention age discrimination in his EEO complaint, and never heard his supervisors make any statements about appellant’s age.

The City also presented witnesses to rebut appellant’s claims of age-based harassment. Lieutenant Hill denied making the statements attributed to him. Sergeant John Bragagnolo testified he never heard Hill say officers needed to write more tickets to avoid facing an internal affairs investigation. Bragagnolo also never heard Hill call Officer King “old,” and never heard Lieutenant Hill or Lieutenant Pablo Ossio make reference to any officer’s age. Lieutenant Ossio testified he did not recall making the catheter remark, though he acknowledged that officers in Traffic Company made a lot of jokes.

Officer Matthew Gardner retired from the SFPD in 2014 as a SOLO officer. He was present when Hill and Ossio addressed lineups and he never heard any disparaging remarks about someone’s age, nor did he witness them treating appellant or other older officers in an unfair way due to their age. Harold Vance also testified as a retired SFPD officer. He never heard Hill, Ossio, or Flaherty say anything disparaging about any officer’s age or treat older officers unfairly. Officer Larry Henderson testified that, at age 62, he was the oldest SOLO at the time of trial. He never heard Hill say anything disparaging about any officer’s age. He did not believe Ossio or any supervisor had treated him unfairly due to his age. Sergeant Frank Harrell, appellant’s immediate supervisor, testified that he never observed appellant being subjected to age-related harassment.

Equal employment opportunity complaints

Appellant filed three equal employment opportunity (EEO) complaints with the City over the course of his tenure. In 2013, appellant filed an EEO complaint because he believed DUI enforcement was being marginalized in favor of ticket writing. Appellant asserted he was being singled out because of his union activities. He did not identify his age as a motivating factor. The complaint was subsequently denied. He filed a second EEO complaint in 2014, alleging that his supervisor, Lieutenant Hill, had a personal issue with his DUI enforcement efforts and training.

The City’s EEO Specialist, Matthew Valdez, testified that appellant’s 2013 complaint was dismissed because it alleged retaliation for union activity, which is not under EEO jurisdiction. Valdez testified the second EEO complaint was dismissed without investigation because it too did not fall under EEO jurisdiction. Appellant filed a third EEO complaint in February 2015, in which he alleged retaliation, age discrimination, and harassment. Valdez sought to investigate the complaint, but appellant did not respond when Valdez repeatedly tried to contact him. Valdez closed out the case.

Appellant’s supervisors (Captains Flaherty and Oberzier, and Lieutenants Hill and Ossio) were unaware of appellant’s EEO complaints until they were deposed in this matter. Officer Valdez testified EEO complaints are kept confidential to maintain the integrity of an investigation and to protect against retaliation. Former Police Chief Greg Suhr testified he was not notified when an EEO complaint was filed, and would receive a report only after a human resources department investigation had been completed. Suhr received notice of the closure of appellant’s three EEO complaints, and did not share these notices with anyone else.

II. Summary Adjudication and Jury Verdict

In September 2015, appellant filed a verified complaint under the FEHA, stating causes of action for (1) age discrimination, (2) age harassment, (3) retaliation, and (4) failure to prevent discrimination. He claimed he had been wrongfully targeted because of his age and experience and because he had joined with other older SOLO officers in filing job-related complaints.

The City moved for summary judgment/adjudication of appellant’s first amended complaint. The City contended his claims for age discrimination and retaliation failed as a matter of law because no evidence had been presented that appellant suffered any adverse employment action. Appellant opposed, asserting he had raised disputed material facts, and stressing that “[f]undamental to the facts of this case is the desire of [Traffic Control] superiors, which reached into the highest levels of the SFPD, to require SOLO officers to write more ‘traffic tickets’ rather than recognizing and arresting drunk and drugged drivers.”

On April 7, 2017, the trial court denied the City’s motion for summary judgment and granted the alternate motion for summary adjudication as to the age discrimination and retaliation causes of action. The trial court concluded that “[t]he only adverse employment action that [appellant had] adequately alleged or provided any evidence on [was] the alleged constructive termination of his employment on March 7, 2015. All other asserted adverse employment actions, considered singly or collectively, did not materially or adversely affect the terms, conditions or privileges of [appellant’s] employment and thus, even if undertaken by the City because of age and/or retaliatory animus, do not constitute actionable discrimination or retaliation.” As to the assertion that appellant was constructively discharged, the trial court found that “there is insufficient evidence that the City, through its supervisors at the Traffic Company, intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in [appellant’s] position would have had no reasonable alternative except to resign.”

The trial court also concluded the retaliation claim was not actionable because appellant had not presented any evidence showing a causal link between his asserted protected activities and his asserted constructive discharge. The court noted there was no evidence appellant’s EEO complaints were ever forwarded to his immediate supervisors, and his supervisors testified they were unaware of appellant’s EEO complaints. The court concluded there was a triable dispute as to appellant’s claims of age harassment and failure to prevent harassment and denied the City’s motion as to these claims.

On June 13, 2017, the jury unanimously found that appellant had not been subjected to unwanted harassing conduct on account of his age, and he had not personally witnessed age-motivated harassing conduct. The trial court denied appellant’s motion for new trial. This appeal followed.

DISCUSSION

I. Summary Judgment Principles

Summary judgment/adjudication is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

A defendant moving for summary judgment or adjudication bears the initial burden of proving there is no merit to a cause of action by showing that one or more elements cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o)(1), (o)(2); Aguilar, supra, 25 Cal.4th at p. 845.) If the defendant makes such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of one or more material facts as to that cause of action or as to a defense to the cause of action. (Aguilar, at pp. 850–851.) If the plaintiff does not make such a showing, judgment in favor of the defendant is appropriate. To obtain a summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . .” (Id. at p. 853.)

On appeal from the entry of summary judgment or adjudication, “[w]e review the record and the determination of the trial court de novo.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “While we must liberally construe plaintiff’s showing and resolve any doubts about the propriety of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact ‘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.’ ” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; see Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [“responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact”].) We independently examine the record on appeal to determine whether triable issues of material fact exist, “ ‘considering all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.’ ” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530.)

II. Claims Resolved by Summary Adjudication

A. Age Discrimination Claim
B.
To make out a prima facie case of age discrimination under the FEHA, there must be evidence that the plaintiff (1) is over the age of 40, (2) suffered an adverse employment action, (3) was performing satisfactorily at the time of the adverse action, and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination. (Hersant v. California Department of Social Services (1997) 57 Cal.App.4th 997, 1002–1003; § 12940, subd. (a); see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354–355). On a motion for summary judgment/adjudication of a discrimination claim, an employer may meet its initial burden by showing that one or more of the elements of the plaintiff’s prima facie case are lacking or that the adverse employment action was based on a legitimate, nondiscriminatory reason. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)

An adverse employment action “requires a ‘substantial adverse change in the terms and conditions of the plaintiff’s employment.’ ” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) The FEHA “does ‘not guarantee employees “a stress-free working environment.” ’ [Citation.] ‘[The Act] does not take away an employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. “[The FEHA] addresses discrimination.” . . . “[It] is not a shield against harsh treatment at the workplace.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344 (Arteaga).) Accordingly, minor adverse actions that, from an objective point of view, are “reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 (Yanowitz); see Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [“ ‘ “ ‘workplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate the act or omission to the level of a materially adverse employment action.” ’ ” ’].)

Appellant contends he encountered substantial discriminatory conduct from the SFPD that led to his constructive discharge. We conclude, as did the trial court, that appellant has failed to raise a triable issue of material fact to support such a claim. “ ‘Constructive discharge, like actual discharge, is a materially adverse employment action.’ ” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253.) To establish constructive discharge, an employee must “plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 (Turner).) An employee “cannot simply ‘quit and sue,’ claiming he or she was constructively discharged.” (Id. at p. 1246.)

The working conditions giving rise to an employee’s forced resignation must be “sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Turner, supra, 7 Cal.4th at p. 1246.) “The standard by which a constructive discharge is determined ‘is an objective one, and the proper focus is on the working conditions themselves.’ ” (Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1270 (Simers).) “Bruised egos and hurt feelings are not part of the Turner equation.” (Gibson v. ARO Corp. (1995) 32 Cal.App.4th 1628, 1637.)

The Supreme Court’s decision in Turner is instructive. The plaintiff relied “on three kinds of allegedly intolerable conditions that he claims precipitated his resignation in 1989: (1) the alleged illegal acts of other ABI employees which he observed and reported in 1984; (2) his reassignment [to a different position with the same salary and level of responsibility] in 1985; and (3) his low performance rating in 1988.” (Turner, supra, 7 Cal.4th at p. 1254.) The court held that “[n]one of these purported conditions creates a triable issue of material fact” preventing summary judgment for the employer on plaintiff’s constructive discharge claim. (Ibid.)

In Simers, supra, 18 Cal.App.5th at pp. 1270–1271, the intolerable conditions alleged by the plaintiff, a well-known newspaper columnist, included reductions and a suspension of his columns, a demotion, and harsh criticism from his managing editor. The appellate court affirmed the judgment notwithstanding the verdict entered on the plaintiff’s constructive discharge claim, stating, “We conclude, as a matter of law, that none of these circumstances, alone or in combination, amount to working conditions that are either unusually aggravated or a continuous pattern of mistreatment.” (Id. at p. 1271.) The court explained the evidence was lacking to support some of the allegations, and other circumstances “consist[ed] only of plaintiff’s subjective reaction to standard employer disciplinary actions.” (Ibid.) The court emphasized that “[i]t is the working conditions themselves—not the plaintiff’s subjective reaction to them—that are the sine qua non of a constructive discharge.” (Id. at p. 1274.)

The working conditions alleged by appellant here do not evidence an environment so egregious and intolerable that resignation was the only option left to him. Appellant identified three age-related comments over the relevant time period, one of which he was not present to hear. The catheter comment aimed at another officer was undeniably insensitive, but a single stray comment that is unrelated to any employment decision is not actionable under the FEHA. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 231.) Of greater significance, there was no evidence that anyone within the SFPD had commented about appellant’s age, either directly to him or indirectly. Appellant’s assertion of “constant derogatory references [about his] age and the age of other SOLOs” is therefore not supported by the record.

Other identified incidents, such as the interruption of his DUI training class, criticism appellant received over his low citation numbers, pressure brought to bear on Traffic Company to issue more citations, a supervisor describing certain SOLOs as “problem officers,” and the threat to put appellant on a performance improvement plan, do not, individually or collectively, present a triable issue that appellant was subjected to working conditions so egregious that a reasonable employee in his position would have felt compelled to resign. An employer is entitled to set goals and to demand certain performance objectives, even if such demands impose stress on its employees. (Arteaga, supra, 163 Cal.App.4th at p. 344; see Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 [“[A] mere oral or written criticism of an employee . . . does not meet the definition of an adverse employment action under FEHA.”].) Appellant was not, in fact, disciplined, but only counseled on certain occasions for his performance. As the City points out, this counseling did not “substantially and materially change the terms and conditions of employment” and was therefore not actionable. (Akers, at p. 1457.) We conclude summary adjudication was properly granted as to appellant’s age discrimination claim.

C. Retaliation Claim
D.
To establish a prima facie case of retaliation, “a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042; § 12940, subd. (h).)

Appellant contends he engaged in a protected activity by filing employment discrimination complaints and, as a result of these actions, he was subjected to workplace harassment by his supervisors and an attempt to put him on a performance improvement plan. Appellant is correct that proof of a valid constructive discharge is not necessarily required to prove retaliation. “ ‘[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for . . . retaliation cases.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1056, fn. 16.) Courts have noted “ ‘[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. . . . [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.’ [Citation.] ‘ “[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence.” ’ ” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 214.)

Even considering the totality of the conduct alleged by appellant, we conclude he has not demonstrated that he suffered an adverse employment action. Appellant was not disciplined, demoted, or transferred from his position, and he has not alleged or shown any change in the terms, conditions, or privileges of his employment. He was, at most, sternly counseled several times for his performance deficiencies in carrying out the objectives of the SFPD’s Vision Zero policy. He does not identify, however, any authority to support his claim that the threat of discipline can give rise to an actionable claim for retaliation. “[A]n employer’s adverse conduct must materially affect the terms and conditions of employment.” (Yanowitz, supra, 36 Cal.4th at p. 1051, fn. 9, italics added.)

In addition, as the trial court found, there is no evidence of a causal connection between his protected activities and the allegedly harassing conduct. The evidence at the summary judgment stage was undisputed that his immediate superiors were unaware he had filed EEO complaints. The trial only confirmed that a causal link between appellant’s protected activity and any adverse employment action by his superiors could not be established.

Officer Valdez testified that EEO complaints were kept confidential to maintain the integrity of an investigation and to protect against retaliation. Chief Suhr testified he only learned about the EEO complaints after an investigation had closed, and did not share these notices with anyone else. Appellant did not present any evidence contradicting this testimony. Nor did he show that Chief Suhr, directly or indirectly, “contributed materially to an adverse employment decision” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109), or had any role in creating the adverse working conditions that appellant allegedly experienced. On the other hand, substantial evidence was presented at trial to show that the unwelcome attention appellant did receive from his supervisors was related to perceived performance concerns. Other issues impacting Traffic Company, such as the introduction of the P1/P2 Plan and the Vision Zero enforcement strategy, arose out of facially neutral SFPD policies and had no connection to appellant’s protected activity or age. We conclude, therefore, that appellant has failed to raise a triable issue in support of his claim that the City engaged in retaliatory harassment.

III. Claims at Trial

Trial was held on appellant’s remaining causes of action for age harassment and failure to prevent harassment. Rather than argue that the jury’s verdict is not supported by substantial evidence, appellant instead challenges the trial court’s rulings on certain motions in limine and on a given CACI jury instruction. We conclude the trial court’s rulings were appropriate.

We review the trial court’s ruling on evidentiary issues for an abuse of discretion. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.) “ ‘ “In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not [to] be set aside on review.” ’ ” (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 45.) Even when evidence has been improperly excluded, reversal is only proper where there is a reasonable probability that a more favorable result would have been reached. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431–1432; see Cal. Const., art. VI, § 13 [judgment will not be reversed for improper exclusion of evidence absent miscarriage of justice].) We review de novo whether a challenged jury instruction correctly states the law. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 298.)

Appellant first contends the court wrongly denied his motions to admit evidence of his post-employment economic losses and to exclude evidence of pension payments under the collateral source rule. As we are affirming judgment in the City’s favor and the jury did not reach damages, evidentiary issues pertaining to damages are moot and we need not address these contentions.

Appellant also contends the trial court erred in granting the City’s motions in limine to exclude evidence of appellant’s job performance before he joined Traffic Company in 2006, and to exclude use of the word “quota” when putting on evidence concerning the SFPD’s traffic citation goals. Because appellant’s complaint pertained only to his work as a SOLO, and the alleged harassment did not commence until October 2013, we cannot say the trial court abused its discretion in excluding his prior job history. As to the word “quota,” the trial court accepted the City’s argument that it was irrelevant to prove a claim of age harassment and unduly prejudicial. Appellant was not prohibited from presenting evidence that his superiors wanted SOLOs to issue a specified minimum number of citations every day. Because appellant was permitted to present evidence regarding the SFPD’s traffic citation policies and practices, the trial court was well within its discretion to exclude the unnecessary and weighted word “quota” from the trial.

Finally, appellant argues that the jury was improperly instructed on CACI No. 2521B, the form instruction concerning a hostile work environment where the plaintiff is not the target of the harassing conduct. The jury below was instructed that appellant must prove, among other elements, that “Steven J. Landi although not personally subjected to unwanted harassing conduct, personally witnessed harassing conduct . . . that took place in his immediate work environment.” Appellant relies on two cases, Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740 (Johnson) and Pantoja v. Anton (2011) 198 Cal.App.4th 87 (Pantoja), to argue that CACI No. 2521B misstates the relevant law and the jury should have been instructed to consider “me too” evidence of workplace harassment, even if the plaintiff did not personally witness the harassment. We are not persuaded.

CACI No. 2521B relies in part on the California Supreme Court’s decision in Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264 (Lyle). (See Sources & Authorities for CACI No. 2521B (Series 100-2500, 2019) p. 1517.) In Lyle, a former comedy writer’s assistant on the popular television show Friends sued the producers and writers of the show, alleging she was subjected to a hostile work environment as a result of coarse and sexually vulgar discussions among the writers. (Lyle, at p. 275.) The plaintiff did not contend that the sexually explicit language was directed at her or other women in the workplace, but rather that these workplace discussions fostered an abusive work environment. (Id. at p. 272.) Lyle clarified that a plaintiff may be the victim of sexual harassment even if the harassing conduct is directed at other coworkers. But because “sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff” (id. at p. 284), the plaintiff must “ ‘establish that the sexually harassing conduct permeated [her] direct work environment’ ” (id. at p. 285). “To meet this burden, the plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. [Citation.] The reason for this is obvious: if the plaintiff does not witness the incidents involving others, ‘those incidents cannot affect . . . her perception of the hostility of the work environment.’ ” (Ibid.)

Neither Johnson nor Pantoja purports to undermine this Supreme Court precedent. In Johnson, the appellate court considered the admissibility of “me too” evidence

in the context of a FEHA claim for sex discrimination. The plaintiff claimed her employer fired her because she was pregnant. In opposing the defendant’s motion for summary judgment, the plaintiff submitted evidence that defendant had fired or discriminated against four other female employees because of their pregnancies. (Johnson, supra, 173 Cal.App.4th at pp. 761–762.) The appellate court reversed the grant of summary judgment, concluding the “me too” evidence presented triable issues of fact as to whether the employer’s reasons for firing the plaintiff were pretextual. (Ibid.) In so holding, the court distinguished Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, a workplace sexual harassment case where the exclusion of “me too” evidence was upheld as inadmissible character propensity evidence under Evidence Code section 1101, subdivision (a). Johnson pointed out that “me too” evidence could be admitted under Evidence Code section 1101, subdivision (b) to prove an employer’s motive or intent, not for propensity. (Johnson, at p. 760.)

Pantoja involved sexual harassment and sex discrimination claims brought by the plaintiff against her employer. (Pantoja, supra, 198 Cal.App.4th at p. 93.) Plaintiff sought to introduce “me too” evidence at trial from other women employees to rebut her supervisor’s testimony that he did not tolerate harassment in the workplace. (Id. at p. 116.) At issue on appeal was whether the trial court “erred in not allowing the jury to hear ‘me too’ evidence, that is, evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff.” (Id. at p. 92.) The appellate court concluded that “[t]he evidence was admissible under subdivision (b) [of Evidence Code section 1101] to show [the supervisor’s] intent and to rebut his theory that he had a practice of engaging in profane tirades without bias and a policy of not tolerating harassment.” (Pantoja, at p. 118.)

Neither case addresses whether CACI No. 2521B is an accurate statement of the law or stands for the proposition that a plaintiff employee may prove a workplace harassment claim based on conduct of which he was not aware. Rather, Johnson and Pantoja should be read in the proper context that “me too” evidence may be admissible to raise triable issues of fact or to rebut employer evidence of a nondiscriminatory motive. Since “me too” evidence was not excluded in the case at bar, these decisions are distinguishable.

Even if the trial court erred in failing to instruct the jury that it should consider “me too” evidence that was not personally witnessed by the plaintiff, we would conclude the error was harmless. Appellant’s “me too” evidence at trial was equivocal and hardly compelling. Officer Putz testified that he believed he was being treated unfairly because of his age, but admitted he never heard his supervisors comment about any officer’s age. Sergeant Lantrip testified about unfair treatment but had difficulty explaining whether that treatment was related to age. Several officers admitted that their EEO complaints did not raise the issue of age discrimination or harassment. In contrast, the jury heard testimony from many SFPD officers that they never heard disparaging remarks about an officer’s age or witness differential treatment on the basis of age. Even if the jury had been instructed to weigh all of the “me too” testimony, such evidence did not establish harassment that was “sufficiently pervasive [as] to alter the conditions of [appellant’s] employment and create a hostile or abusive work environment.” (Lyle, supra, 38 Cal.4th at p. 283, italics omitted.) Appellant has not demonstrated that any asserted errors resulted in a miscarriage of justice. (See Pool v. Oakland (1986) 42 Cal.3d 1051, 1069.)

DISPOSITION

The judgment is affirmed.

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Sanchez, J.

WE CONCUR:

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Humes, P. J.

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Margulies, J.

A152387 Landi v. City and County of San Francisco