Filed 3/20/20 Godfrey v. Dept. of Corrections and Rehabilitation CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

KELVIN GODFREY,

Plaintiff and Appellant,

v.

DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendant and Respondent.

C085693

(Super. Ct. No. 34-2014-00171627-CU-CR-GDS)

Plaintiff and appellant Kelvin Godfrey appeals from summary adjudication and summary judgment in favor of his employer, defendant and respondent California Department of Corrections and Rehabilitation (CDCR).

Godfrey, an African-American man working as a stationary engineer, alleges that CDCR engaged in race discrimination by denying him the designation of chief plant operator (CPO) and a corresponding raise, which he contended he was entitled to because for some time he had been performing the duties of the CPO. He points out that two Caucasian employees received pay differentials for additional work. Godfrey, however, admitted that he was not performing all the duties of a CPO and that he was truthfully told by his supervisor that he did not get the position for that reason. The Caucasian employees who received small amounts of additional monthly pay did so because they performed specific tasks that no other employee was performing.

Godfrey further contends that when he complained about being denied the CPO position he suffered numerous acts of retaliation. CDCR, however, provided evidence of legitimate reasons for each incident Godfrey claims was retaliatory. Godfrey, for his part, offers no evidence that these reasons were a pretext for actions motivated by retaliatory animus. In addition, many of the acts that Godfrey claims were retaliatory were minor incidents and others had no causal connection with any complaint of discrimination.

Alternatively, Godfrey’s claimed violations of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., were barred by his failure to file a timely administrative complaint with the Department of Fair Employment and Housing (DFEH) or any administrative complaint at all.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Godfrey has worked as a stationary engineer at CDCR’s R.A. McGee Correctional Training Center since 1994. Godfrey’s duties included operating, maintaining, and repairing HVAC systems; operating and maintaining boilers; electrical work; concrete work; and overall building and structural maintenance.

In January 2012 Godfrey asked his supervisor, Gregory Stinson, to be designated as the CPO. The CPO has overall responsibility for the day-to-day, hands-on operation of a water treatment facility or distribution system. As CPO, Godfrey would be entitled to a 5 percent pay differential. On February 7, 2012, Stinson denied the request, explaining that Godfrey was not doing all the duties of a CPO. Stinson also explained that he, Stinson, had overall responsibility for the water treatment and distribution systems at the facility where Godfrey worked and was the designated CPO. Godfrey admitted in deposition that Stinson had been the CPO for the facility since the water plant opened in 2000. As a correctional plant manager, however, Stinson was not eligible for additional pay for performing CPO duties.

Godfrey believed he should have the CPO designation because he was performing the work assignment at the water plant. Godfrey, however, admitted in deposition that the job description for the stationary engineer position includes work at the water facility. Godfrey also admitted that he was not doing 100 percent of CPO duties. Godfrey further admitted Stinson was not untruthful when he said that Godfrey did not receive the CPO designation for these reasons. Godfrey admitted that Stinson did not say anything to make Godfrey think he was denied the CPO designation because he is African-American.

Godfrey admitted in deposition that Stinson had never made a derogatory comment related to Godfrey’s ethnicity. The only thing Godfrey could think of indicating Stinson thought less of him because of his ethnicity was a statement at a union hearing in August 2012 where Stinson said, “I’ll contract the job out before I give it to Kelvin.”

Godfrey nonetheless believed this was a “racial issue” because two Caucasian employees were receiving additional pay. The two other employees were receiving small additional sums for specific tasks unrelated to water treatment: one employee received $100 per month for backflow testing and another received $50 for pesticide use.

On April 26, 2012, Godfrey filed a discrimination complaint with DFEH claiming that he was denied the CPO designation because of his race. He claimed that a non-African-American, Stinson, was the designated CPO, even though he was not eligible for the designation, and claimed Stinson was receiving a pay differential (notwithstanding his subsequent deposition testimony that he knew Stinson could not receive a pay differential for this position). Godfrey alleged that he had been performing a position that included CPO duties, and in January 2012 had complained and submitted a written request to Stinson to be so designated and receive the corresponding pay differential, but nothing was done. Godfrey also stated that, in retaliation, on March 5, 2012, he was reassigned to an afternoon position which did not include CPO duties. On April 25, 2013, DFEH closed Godfrey’s case for insufficient evidence and issued a right to sue letter, which stated that “[t]he civil action must be filed within one year from the date of this letter.”

On May 30, 2012, Godfrey was removed entirely from the water treatment assignment, because, as he was informed by his supervisor, Godfrey had said that he did not wish to continue water treatment duties, was picking and choosing which water duties he would perform, and failed to attend a water treatment training. Godfrey admitted in deposition that he did not want to perform water treatment duties if he did not receive additional CPO pay. Godfrey nonetheless thought that he was relieved of his water treatment duties as retaliation for requesting the CPO designation and as racial discrimination. Godfrey admitted in deposition that Stinson did not say or do anything to indicate that Godfrey was relieved of his water treatment duties because he was African-American.

Also on May 30, 2012, Godfrey received first stage discipline for using a red pen in a water log book to make entries regarding staff attendance. The water treatment log book is a formal record required by regulation. Staff are requested to use blue or black ink in the book.

As of May 30, 2012, Stinson did know that Godfrey had filed a complaint with the DFEH. He learned of it later from the investigator assigned to Godfrey’s complaint. On June 7, 2012, Godfrey e-mailed Stinson informing him of Godfrey’s DFEH complaint against him.

In June 2012 Godfrey was observed using a staff computer to send e-mails to his supervisor when he should have been at his assigned work areas. The computer was moved to a mezzanine area, which was not air conditioned. Godfrey believed that the computer was moved to retaliate and discriminate against him. Godfrey admitted in deposition that the relocation of the computer did not affect his salary, hours, benefits, or promotional opportunities.

On July 16, 2012, Godfrey filed a complaint with DFEH contending that he was removed from his water treatment duties on May 30, 2012, in retaliation for filing discrimination complaints with CDCR and DFEH. On June 18, 2013, DFEH closed Godfrey’s case for insufficient evidence and issued a right to sue letter advising him that a civil action must be filed within one year.

On November 6, 2012, Godfrey asked Stinson for two hours off to vote. Stinson denied the request. Pursuant to Elections Code section 14000, CDCR policy is to allow employees to take two hours to vote if they do not have sufficient time outside of work hours. Stinson believed that Godfrey had sufficient time to vote because his shift ended at 3:30 p.m. and polls closed at 8:00 p.m. No other employee that Stinson supervised whose shift ended at 3:30 p.m. received paid time off to vote.

Beginning in 2013, Martin Estrada became the CPO of the CDCR facility where Godfrey worked and acted as his supervisor. In early 2013, Godfrey began submitting electronic copies of his timesheet. Estrada informed Godfrey that he needed to submit paper timesheets. Maintenance employees were not supposed to use the electronic timesheet system. Godfrey continued to submit electronic timesheets. On April 12, 2013, Estrada issued Godfrey a “Letter of Expectation” outlining his duties, including the timesheet procedure. This letter was to advise an employee of expectations going forward and was not disciplinary. Godfrey refused to sign the letter. Godfrey admitted in deposition that he did not know of any reason that Estrada would personally retaliate against him or that Estrada had done anything to indicate that the letter was issued to retaliate against Godfrey.

On July 17, 2013, Godfrey and all other staff were required to switch back to their original desk seats after Stinson noticed that Godfrey had relocated his seat. Godfrey admitted in deposition that Stinson did not do anything to indicate that he switched Godfrey back to his original seat in retaliation for filing a complaint. Godfrey admitted that relocation to his original seat did not affect his salary, hours, benefits, or promotional opportunities.

On November 15, 2013, Godfrey filed a discrimination complaint with DFEH reiterating his prior complaints, as well as complaining of the relocation of the computer to the mezzanine, refusal of his request for time off to vote, discipline regarding submission of timecards, the seating arrangement change, the designation of Estrada as CPO, and promotion of other Caucasian employees.

On February 27, 2014, another employee told Godfrey that Estrada sought advice from Stinson instead of Godfrey about a mechanical problem at the water treatment plant. Godfrey claimed he was denied the opportunity to make necessary repairs at the plant, but admitted in deposition that he was not on water treatment assignment at the time. Godfrey also admitted this incident did not affect his salary, hours, benefits, or promotional opportunities.

Godfrey claimed that in July 2014 he was denied an opportunity to work overtime at another CDCR facility. CDCR’s policy is to offer overtime to the employees with the least amount of overtime and the skillset for the task involved. CDCR maintained a list tracking employees’ overtime and offered overtime work based on the list. Godfrey admitted in deposition there were eight employees on the list with less overtime than he had. Godfrey admitted that Estrada did not say or do anything to indicate that he did not offer Godfrey the overtime because he is African-American.

In October 2014 overtime was available for spreading and compacting road base in the parking lot of the CDCR facility where Godfrey worked. Godfrey’s union was Bargaining Unit 13 and Estrada believed that this work was Bargaining Unit 12 work. Estrada offered the overtime only to employees in Bargaining Unit 12. Godfrey filed a union grievance and CDCR’s Office of Labor Relations determined that spreading and compacting road base is a function specific to Bargaining Unit 12. Godfrey disagreed with this decision but admitted in deposition that spreading and compaction was not in his job description.

In 2014 the chief engineer position opened up when Estrada was promoted to CPO. At that time, the eligibility list for the position was several years old. CDCR determined that there were not enough qualified candidates on the list and announced the creation of a new list. Any employee who wanted to be on the list and apply for the position was required to obtain a passing score on a new qualifying exam. Godfrey decided not to take the exam even though he understood he could not apply for the promotion if he was not on the list. Godfrey nonetheless claimed that Estrada denied him the promotion. Godfrey admitted in deposition, however, that Estrada was not the person who decided to administer a new exam for the position. Godfrey admitted that he did not tell Estrada he was applying for the position. Godfrey admitted that his sole reason for believing that he was denied the chief engineer position is that he was the only African-American. Godfrey admitted that no one said or did anything to indicate he was denied the position because he is African-American.

Godfrey attributed the July 2014 overtime incident and the chief engineer application procedure to retaliation, harassment, and disparate treatment. Godfrey reported in deposition a statement by Estrada that “had you not done what you did, you would probably be the chief plant operator.” Godfrey believed that every incident he complained of after he made the request to be designated CPO was retaliation, harassment, and disparate treatment.

In 2014 Ryan Allgood was promoted to chief engineer. Godfrey admitted in deposition he did not believe Allgood got the promotion because Godfrey is African-American.

Godfrey claimed that in October or November 2014 he was assigned a menial task below his qualifications, cleaning air filters. Godfrey admitted in deposition that this task was part of his job that he had been doing for 20 years. Godfrey asked to be taken off cleaning air filters because he had a sinus infection. Godfrey asked for an accommodation. Arrangements were made to fit him for personal protective equipment, which included a face mask and respiratory equipment. Godfrey believed this equipment was insufficient for mold. The Occupational Safety and Health Administration (OSHA) conducted an inspection and did not find mold. Godfrey still believed there was mold and asked for a self-contained breathing apparatus, such as firefighters wear. Allgood gave Godfrey an “Employee Counseling Record” for refusing to clean air filters with the equipment offered. Godfrey believed that sending him to clean filters without the equipment he requested was retaliation.

Godfrey admitted in deposition he did not believe that Allgood’s failure to accommodate him with a self-contained breathing apparatus was harassment. Godfrey admitted he could not identify any act or incident at work that he contended was harassment for being African-American.

On November 13, 2014, Godfrey filed suit against the CDCR. On January 12, 2015, Godfrey filed a first amended complaint alleging causes of action for: (1) race discrimination; (2) race harassment; (3) retaliation; (4) failure to prevent discrimination, harassment and retaliation; and (5) harassment for opposing unlawful discriminatory practices. CDCR answered with a general denial and affirmative defenses.

On December 20, 2016, CDCR filed a motion for summary judgment or, alternatively, summary adjudication. CDCR argued that Godfrey’s claims were time-barred by his failure to file suit within a year of receiving a right to sue letter from DFEH and by his failure to exhaust administrative remedies. CDCR also contended that Godfrey had failed to establish a prima facie case for his claims and that CDCR had legitimate reasons for all the actions complained of in Godfrey’s pleading.

On April 20, 2017, Godfrey filed an opposition. Godfrey argued that the continuing violation doctrine defeated CDCR’s argument that his claims were time-barred. Godfrey also argued that there were triable issues of fact regarding discrimination and retaliation. Godfrey’s opposition was supported by a short declaration from Godfrey with no exhibits and a declaration from his counsel with exhibits.

CDCR accompanied its reply brief with objections to Godfrey’s and his counsel’s declarations in their entirety and to most of the exhibits to counsel’s declaration. In ruling on the motion, the trial court sustained all of CDCR’s objections except a blanket objection to counsel’s declaration.

The court granted summary adjudication of each of Godfrey’s causes, and also granted summary judgment based on Godfrey’s failure to exhaust administrative remedies.

DISCUSSION

Deficiencies in Godfrey’s Briefs

Before reaching the substance of Godfrey’s claims, we address his blatant failure to comply with the California Rules of Court on appeal.

Godfrey has failed to provide a statement of facts in his opening brief in conformance with rule 8.204(a)(2)(C), which requires “a summary of the significant facts limited to matters in the record.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260 (Silva).) He has made no effort to summarize all the evidence presented to the trial court on summary judgment. (Ibid.) Godfrey’s version of the facts is entirely one-sided. He simply ignores any evidence presented by CDCR that does not support his position. He also cites evidence to which the trial court sustained objections without appealing any of those rulings. Further, Godfrey makes numerous factual assertions without providing any citation to the record. (Id. at p. 261 [“Statements of fact not supported by citations to the record are improper. [Citations]”].)

In Godfrey’s opening brief, facts and argument are mixed indiscriminately in sections headed “Introduction” and “Discussion.” The “Discussion” section consists of pages of argument with no subheadings, followed by two very short sections with the subheadings “Time Off for Voting” and “Incidents Outside the Statute of Limitations.” Godfrey’s brief thus violates the rule that each issue in an appellate brief must have a discrete heading summarizing the point, which must be supported by reasoned legal argument and, if possible, citation of authority. (Rule 8.204(a)(1)(B).) “Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 (Pizarro).) It is not this court’s responsibility to act as counsel for Godfrey and take a “muddle of various statements of fact and law” and “attempt to arrange his arguments coherently.” (Id. at p. 181.)

Godfrey’s failure to provide complete and coherent headings and legal argument “is significant because, as the appellant, it is his burden to overcome the presumption on appeal that the underlying order is correct.” (Pizarro, supra, 10 Cal.App.5th at p. 181, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This rule applies even where we conduct de novo review on appeal from summary judgment. While we review the trial court’s decision independently, the scope of appellate review is limited to issues that the appellant has adequately raised and supported in his or her brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

CDCR contends that Godfrey’s entire argument should be waived for failure to present “a coherent, material argument.” (Pizarro, supra, 10 Cal.App.5th at p. 181.) In the interests of justice, we will consider the merits of Godfrey’s assertions on appeal. (Silva, supra, 7 Cal.App.5th at p. 261.) However, Godfrey’s counsel “should be mindful of the governing appellate rules in future briefs he files in the California courts.” (Ibid.)

Standard of Review

We review a grant of summary adjudication or 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; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone); Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1034.) Virtually all of Godfrey’s evidence was ruled inadmissible by the trial court and he has not appealed those rulings. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1196; Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108, fn. 5 (Loggins).) Therefore, we do not consider this evidence and our review is essentially limited to CDCR’s evidence. (Loggins, supra, at p. 1108, fn. 5.) Nonetheless, we strictly scrutinize CDCR’s showing and resolve evidentiary doubts and ambiguities in Godfrey’s favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)

On a motion for summary judgment, a defendant must show “that one or more elements of the cause action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate only “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 a judgment as a matter of law.” (Code. Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

We discuss the standard of review specific to Godfrey’s various claims in more detail below.

Discrimination

“In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibited bias and that, if true, would preclude a finding of discrimination. [Citation.] The employer’s evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action. [Citation.]” (Featherstone, supra, 10 Cal.App.5th at p. 1158; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 (Kelly).)

“By presenting such evidence, the employer shifts the burden to the plaintiff to present evidence that the employer’s decision was motivated at least in part by prohibited discrimination. [Citation.]” (Featherstone, supra, 10 Cal.App.5th at pp. 1158-1159, fn. omitted.) However, the employee’s “subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) The employee must prove by more than speculation “an actual causal link between prohibited motivation” and the claimed adverse action. (Id. at pp. 433-434.) To show that an employer’s reasons were a pretext for discrimination, an employee “ ‘cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.’ ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) To meet his or her burden, the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for [the asserted] nondiscriminatory reasons.” [Citations.]’ [Citations.]” (Ibid.)

Godfrey mixes allegations of discrimination with allegations of retaliation in his briefs. However, from Godfrey’s deposition testimony, and to a lesser extent his briefs, we conclude that the only incident he truly classifies as racial discrimination is the denial of his request for the CPO designation and the corresponding additional pay. All other alleged acts and incidents Godfrey claims as retaliatory. For example, Godfrey testified that he did not believe that he was denied the promotion to chief engineer because he was African-American and did not believe that Allgood obtained the position because of Godfrey’s African-American race. Rather, he attributed the denial of the chief engineer promotion to retaliation. By contrast, he did not consider the denial of his request for CPO designation as anything but discriminatory.

There is no real question that CDCR met its burden to show legitimate, nondiscriminatory reasons for not designating Godfrey as CPO. CDCR presented evidence that Godfrey was not performing all the duties of a CPO (as he admitted in deposition), that Godfrey’s job description as a stationary engineer included some water treatment duties (which explains why he performed such duties without the CPO designation), and that Stinson was the CPO and had been the CPO at the facility where Godfrey worked since the water plant opened in 2000. Godfrey further admitted the Stinson was truthful when he said he denied Godfrey’s request for these reasons.

Godfrey’s attempt to show that CDCR’s explanation for not promoting him was pretextual is limited to his deposition testimony in which he essentially repeats allegations in his complaint (1) that two Caucasian employees had received additional pay while he was denied it, and (2) Godfrey had obtained a water treatment’s operator’s certificate and had performed CPO duties. However, CDCR presented evidence that the additional pay the two employees Godfrey identified received was for discrete tasks, as Godfrey admitted, and not for a designation of overall responsibility for a water treatment or distribution system or anything similar. In addition, the amounts involved were modest: $50 and $100 per month, as opposed to a 5 percent annual salary increase.

Godfrey also did not point to any remark or other evidence of racial animus or hostility. Godfrey admitted that Stinson never said anything derogatory to him based on his race. When asked if he could think of anything of that nature, Godfrey reported that Stinson said, “I’ll contract the job out before I give it to Kelvin.” This remark may indicate a negative view of Godfrey or his job performance but there is nothing in it that suggests it is based on race.

In sum, CDCR offered evidence of legitimate, nondiscriminatory reasons for refusing Godfrey’s request to be designated CPO. Godfrey has not met his burden to present evidence raising a triable issue that CDCR’s stated reasons were a pretext for discriminatory animus. Summary adjudication of this claim was properly granted.

Retaliation

FEHA provides that it is an unlawful employment practice to “discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding” under the statute. (Gov. Code, § 12940, subd. (h).) To establish a prima facie retaliation case under FEHA, a plaintiff “must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) A retaliation claim differs from a discrimination claim in that “instead of having to show that the action was motivated by animus toward the plaintiff as a member of a protected class, the plaintiff must show that the motive was retaliatory animus. [Citations.]” (McCaskey v. California State Automotive Assn. (2010) 189 Cal.App.4th 947, 987-988.) If an employer offers a legitimate, nonretaliatory reason for the adverse employment action, it is the employee’s burden to prove that the employer’s offered reasons are a mere pretext. (Yanowitz, supra, at p. 1042; McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 (McRae).)

“Protected activity” for purposes of a retaliation cause of action includes filing a DFEH claim, as Godfrey did here. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489-1491; McRae, supra, 142 Cal.App.4th at p. 386; Gov. Code, § 12940, subd. (h).)

The “adverse employment action” element requires that the adverse action “materially affect[] the terms and conditions of employment.” (Yanowitz, supra, 36 Cal.4th at p. 1036; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.) “The ‘materiality’ test encompasses not only ultimate employment decisions, ‘but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’ ” (Patten, supra, at p. 1387; Yanowitz, supra, at p. 1054.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment.” (Yanowitz, supra, at p. 1054.) “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) “But the terms or conditions of employment ‘must be interpreted liberally and with a reasonable appreciation of the realities of the workplace [to further the fundamental antidiscrimination purposes of the FEHA].’ [Citation.]” (Patten, supra, at p. 1387.)

A plaintiff can make a prima facie showing of a causal link between protected activity and adverse employment action with evidence that the employer knew that the employee engaged in protected activity and proximity in time between the protected activity and the claimed retaliatory act. (McRae, supra, 142 Cal.App.4th at p. 388; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 (Morgan) [“ ‘Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in protected activity.’ [Citations]”].) A temporal relationship between the alleged retaliatory act and protected activity is insufficient alone to preclude summary judgment if the employer offers a legitimate, nonretaliatory reason for adverse employment action. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 (Light).)

The claimed retaliatory acts that we are able to ascertain from Godfrey’s jumbled brief consist of: (1) on March 5, 2012, being assigned to an afternoon shift that did not include CPO duties; (2) in June 2012, the relocation of the computer to the mezzanine; (3) on May 30, 2012, being written up for using a red pen instead of a black or blue pen in the water log; (4) on May 30, 2012, being relieved of his water treatment duties entirely; (5) on November 6, 2012, refusal to give two hours’ time off for voting; (6) in 2014, denial of a promotion to chief engineer; (7) in July 2014, denial of an opportunity to work overtime at another facility; and (8) in October 2014, denial of overtime for spreading and compaction.

Godfrey’s first amended complaint alleges additional acts and incidents of retaliation. However, it is not our responsibility to develop his argument on appeal by discussing factual matters that he has failed to mention in his brief. (Pizarro, supra, 10 Cal.App.5th at p. 181; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 (Guthrey).)

Nonetheless, we consider three additional alleged retaliatory acts in 2013 and 2014 that Godfrey identified in his deposition testimony submitted by CDCR: (1) the Letter of Expectation regarding timekeeping; (2) moving him back to his original seating; and (3) Estrada seeking Stinson’s advice on a problem at the water treatment facility. Other than these incidents and those mentioned in his brief, Godfrey testified in deposition he could not think of any other retaliatory acts.

Godfrey’s assignment to an afternoon shift without CPO duties on March 5, 2012, cannot constitute retaliation because it occurred before he filed a DFEH complaint on April 26, 2012. Godfrey cites no evidence of any protected activity predating his first DFEH complaint. To be sure, that complaint alleges his March 5, 2012 reassignment to an afternoon shift was in retaliation for requesting the CPO designation. However, requesting a promotion or increase in pay is not protected activity. This act does not amount to “oppos[ing] any practices forbidden under” FEHA or participating in DFEH proceedings. (Gov. Code, § 12940, subd. (h).)

The relocation of the computer to the mezzanine in June 2012 is too minor to qualify as a retaliatory act under FEHA. Godfrey admitted that the relocation of the computer did not affect his salary, hours, benefits, or promotional opportunities. Work conditions that are “inconvenient and irritating” are not comparable to demotions or loss of pay or benefits. (McRae, supra, 142 Cal.App.4th at pp. 393-394.) “ ‘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.” [Citation.]’ [Citation.] The plaintiff must show the employer’s retaliatory actions had a detrimental and substantial effect on the plaintiff’s employment. [Citations.]” (Id. at pp. 386-387.)

With regard to Godfrey being written up on May 30, 2012, for using a red pen in the water log, this event lacks a causal connection to Godfrey’s April 26, 2012 DFEH complaint. Godfrey attributed this claimed retaliatory act to Stinson. Stinson stated in his uncontested declaration he had no knowledge of the DFEH complaint at that time. (Morgan, supra, 88 Cal.App.4th at p. 70.) Stinson’s declaration is bolstered by an e-mail from Godfrey to Stinson on June 7, 2012, informing him of Godfrey’s DFEH complaint. Moreover, CDCR introduced evidence of a legitimate, nonretaliatory reason for this minor discipline. Entries in blue or black ink were necessary because “[t]he water treatment log book is a formal record of the water plant activities that must be maintained per regulation and must be readily available for regulatory discovery.” Godfrey offered no evidence to the contrary. (Light, supra, 14 Cal.App.5th at p. 94.)

On the same date, May 30, 2012, Godfrey contends that CDCR retaliated against him by relieving him of all his water treatment duties. Stinson’s declaration that he was unaware of Godfrey’s complaint on that date is uncontradicted, eliminating the causal connection element of a retaliation claim. CDCR also produced evidence of a legitimate, nonretaliatory reason for this change in his duties. Stinson declared, and a contemporary e-mail from a CDCR supervisor to Godfrey explained, this action was taken because Godfrey expressed a wish not to perform water treatment duties, was doing only those water duties he chose to perform, and refused to attend water treatment training. Not only did Godfrey fail to present any contradictory evidence, he confirmed in deposition testimony he did not care to perform water treatment duties if he did not receive CPO compensation.

Godfrey’s claim of retaliation regarding Stinson’s refusal to give him two hours paid time off to vote also fails to raise a triable issue. Godfrey provides no evidence to counter CDCR’s legitimate, nonretaliatory reason that Godfrey had sufficient time to vote without time off, since his shift ended at 3:30 p.m. and the polls closed at 8:00 p.m. In addition, Stinson did not give any other employee with the same shift paid time off to vote. Godfrey offered no admissible evidence to contradict this explanation.

Godfrey’s claim that he was denied a promotion to chief engineer in 2014 fails to raise a triable issue because of the wealth of evidence CDCR provided of legitimate, nonretaliatory reasons why Godfrey did not obtain this position and the complete absence of evidence to the contrary cited by Godfrey. In sum, Godfrey declined to take an eligibility exam administered by CDCR to generate a list of qualified candidates to replace an outdated list. Godfrey knew he could not apply for the position if he did not take the exam to be on the list. Godfrey offered no evidence to contradict CDCR’s explanation why he did not obtain the promotion, i.e., because he did not apply for the position in the same manner as everyone else.

Nonetheless, Godfrey contended that Estrada denied him the position. But he cannot provide a causal link between his November 15, 2013 DFEH complaint and any act on the part of the Estrada related to selection of a chief engineer. He admitted that Estrada did not decide to administer the exam and did not know that Godfrey wanted to apply for the position. Godfrey has failed to raise a triable issue regarding his claim that he was denied a promotion to chief engineer in retaliation for filing a discrimination complaint.

Godfrey’s claims that he was denied overtime in July 2014 and October 2014 as retaliation failed to raise a triable issue of material fact, because neither incident was in close proximity in time to any of his DFEH complaints. Godfrey filed his last DFEH complaint on November 15, 2013. Incidents that occurred some eight months and 12 months later lack the close temporal proximity that establishes a causal connection. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [causal link shown where adverse action followed protected activity “ ‘within a relatively short time’ ”]; Loggins, supra, 151 Cal.App.4th at p. 1110, fn. 6 [nine months does not qualify as a “ ‘relatively short time’ ”]; Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931 [“Mere sequence is not enough—that would be the classic logical fallacy of ‘post hoc ergo propter hoc’ (after the fact, therefore because of the fact)”].)

In addition, CDCR offered legitimate, nonretaliatory reasons why Godfrey was denied overtime, in response to which he submitted no contradictory evidence. In July 2014 there were eight employees who had received less overtime hours than Godfrey and were therefore more eligible for this overtime assignment. In October 2014 Estrada correctly determined that the overtime work was not of the type performed by Godfrey’s bargaining unit and gave it to the appropriate unit. There was no evidence that these reasons were a pretext. (Morgan, supra, 88 Cal.App.4th at pp. 79-80; Light, supra, 14 Cal.App.5th at p. 94.) Godfrey’s claims regarding overtime assignments do not raise a triable issue of retaliation.

With regard to additional acts that Godfrey does not trouble to argue on appeal, beginning with the April 12, 2013 Letter of Expectation on timekeeping, Godfrey cannot provide a causal link between protected activity and the letter. Godfrey did not name Estrada in a DFEH complaint until November 15, 2013. Significantly, Godfrey in deposition could not find any reason to attribute retaliatory animus to Estrada, who had just recently started as CPO in January or February 2013. Godfrey admitted Estrada was not involved in the red pen or time off to vote incidents that Godfrey claimed were retaliatory. Godfrey testified to his suspicion that Stinson instructed Estrada to issue the letter but admitted he had no knowledge on the subject.

Godfrey’s claims that (1) moving him back to his original seating and (2) Estrada’s seeking Stinson’s advice on a water treatment problem do not rise to the level of adverse employment action under the materiality test. In both cases, Godfrey admitted in deposition these incidents did not affect his salary, hours, benefits, or promotional opportunities. (McRae, supra, 142 Cal.App.4th at p. 393.)

For each act or incident of alleged retaliation claimed by Godfrey, he is unable to raise a triable issue of material fact regarding one or more essential elements of a retaliation claim or counter CDCR’s legitimate reasons for the action taken. The trial court correctly granted summary adjudication of this claim.

Harassment

FEHA prohibits harassment based on race. (Gov. Code, § 12940, subd. (j).) However, Godfrey concedes that he cannot establish a prima facie case of racial harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) Godfrey acknowledges in his opening brief an “absence of harassment” in this case. Godfrey also admitted in deposition that he could not think of any act or incident at work that he believed was racial harassment. Accordingly, Godfrey’s racial harassment claim was subject to summary adjudication in favor of CDCR.

Failure to Prevent Discrimination

FEHA provides it is unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) Godfrey alleged a claim under this provision in his first amended complaint but provides no citation to the record, headings, argument, or legal authority regarding this claim in his briefs on appeal. Godfrey therefore has waived the claim. (Pizarro, supra, 10 Cal.App.5th at pp. 179-181; Guthrey, supra, 63 Cal.App.4th at p. 1115.)

In any event, there is “ ‘no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred . . . .’ Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Because Godfrey’s underlying discrimination, retaliation, and harassment claims fail, his failure to prevent discrimination, retaliation, and harassment claim also fails.

Exhaustion of Administrative Remedies

The trial court granted summary judgment on the additional ground that Godfrey failed to file a timely administrative complaint with DFEH or failed to exhaust administrative remedies by filing a complaint with DFEH.

“Before bringing a lawsuit for FEHA violations, an aggrieved employee must exhaust administrative remedies by timely filing an administrative complaint with the DFEH and receiving a right-to-sue notice. (Gov. Code, §§ 12960, subd. (b), 12962, subd. (c).) Exhaustion of administrative remedies is ‘ “a jurisdictional prerequisite to the courts.” ’ [Citation.] The administrative complaint must be filed with the DFEH within one year of the date on which the alleged unlawful practice occurred. (Gov. Code, § 12960, subd. (d).)” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 850 (Wassmann); Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402 (Jumaane) [“ordinarily, a plaintiff cannot recover for acts occurring more than one year before the filing of the DFEH complaint”].)

Godfrey refers to the DFEH complaint filed on November 15, 2013, as the “operative complaint.” Godfrey argues, however, that incidents that occurred more than one year before November 15, 2013, are not barred by application of the continuing violation doctrine. “Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period. [Citation.] The continuing violation doctrine requires proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence. [Citation.]” (Wassmann, supra, 24 Cal.App.5th at pp. 850-851; Jumaane, supra, 241 Cal.App.4th at p. 1402; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802 (Richards).) “Permanence” means that an employer’s actions and statements make clear to a reasonable employee that any further informal efforts to end the discrimination will be futile. (Richards, supra, at p. 823.)

In an effort to come within the doctrine, Godfrey refers to three incidents in his brief: (1) the refusal of his request for CPO designation in 2012; (2) another alleged request for this position denied sometime in 2013; and (3) the failure to promote him to chief engineer in 2014. The sole evidentiary support for these events he cites is his declaration, which we do not consider as it was ruled inadmissible in its entirety by the trial court and Godfrey has not challenged that ruling on appeal. CDCR, however, provided admissible evidence that Stinson denied Godfrey’s request for the CPO position on February 7, 2012, and that he was not promoted to chief engineer in 2014. By contrast, there is no evidence of Godfrey’s renewed request for the CPO designation in 2013.

Any claim based on the February 7, 2012 incident is barred unless, at a minimum, there is a similar incident in the year before November 15, 2013. But that incident cannot be denial of a promotion to chief engineer in 2014, which occurred after Godfrey filed a DFEH complaint on November 15, 2013. As to this incident—or any incident that occurred after November 15, 2013—Godfrey failed to exhaust administrative remedies by filing a DFEH complaint alleging a FEHA violation. We, like the trial court, are jurisdictionally barred from considering any alleged FEHA violation where Godfrey failed to file administrative claim with DFEH and receive a right to sue letter. (Wassmann, supra, 24 Cal.App.5th at p. 850; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)

If we consider Godfrey’s alleged FEHA violations that occurred in the year before November 15, 2013, the continuing violation doctrine still does not apply. These incidents include: (1) the Letter of Expectation on April 12, 2013; and (2) requiring staff to switch back to their original seats on July 17, 2013. Both are not sufficiently similar to each other or to Godfrey’s core complaint that he was denied the CPO position in 2012 based on race. Rather, all the acts and incidents of which Godfrey complains appear to be “ ‘isolated employment decisions’ ” in different circumstances made by different decision makers. (Morgan, supra, 88 Cal.App.4th at pp. 66-67.)

As mentioned, there is no admissible evidence in the record that in 2013 Godfrey was again denied the CPO designation in favor of Estrada based on race or in retaliation. Even assuming that this conduct occurred and was part of a single course of conduct, the situation reached permanence when Godfrey filed DFEH complaints on April 26, 2012, and July 16, 2012, precluding application of the continuing violations doctrine. (Richards, supra, 26 Cal.4th at p. 823.)

In any event, Godfrey makes no effort to demonstrate that the elements of the continuing violation doctrine were met in this case, “and we need not develop his argument for him.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 372.)

The trial court did not err in granting summary judgment in CDCR’s favor based on Godfrey’s failure to exhaust administrative remedies under FEHA.

DISPOSITION

The judgment is affirmed. CDCR shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

DUARTE, J.

/s/

RENNER, J.