Filed 5/26/20 King v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

BEVERLY A. KING,

Plaintiff and Appellant,

v.

COUNTY OF RIVERSIDE,

Defendant and Respondent.

E072215

(Super.Ct.No. RIC1601336)

OPINION

APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. Affirmed.

Law Offices of Linda M. Battram and Linda M. Battram for Plaintiff and Appellant.

Smith Law Offices, Douglas C. Smith and Lindsay N. Frazier-Krane for Defendant and Respondent.

Plaintiff and appellant Beverly A. King (King) sued her employer, defendant and respondent the County of Riverside (the County), for violating the California Fair

Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) A jury found the County did not take an adverse employment action against King. King contends the jury erred because substantial evidence supports findings that (1) the denial of a “customary step increase,” and (2) a “below standard” rating on her annual performance review, were adverse employment actions. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

King began working for the County’s Flood Control District in April 1998. King’s first position with the County was as a maintenance construction worker. In September 2005, King changed positions and became an administrative assistant. Zulema Smith supervised King from 2005 to 2009. Smith reviewed King’s job performance annually, and every year King received a “satisfactory overall” review with some weakness noted. Weaknesses included King over-socializing and “need[ing] to on occasion pay attention to the detail of what she was working on.”

In 2009, Imad Guirguis became King’s supervisor. Guirguis was King’s supervisor “from 2009 all the way up until sometime [in] 2014 or so.” Guirguis did the annual performance reviews of King’s work from 2010 to 2014. King’s 2010 through 2013 performance reviews were satisfactory but some of the reviews included notations for needed improvements. King’s 2013 review included a warning pertaining to over-socializing and mistakes. Mistakes that King made included (1) scanning documents incorrectly, such as scanning pages upside down or skipping pages; and (2) providing incorrect files, e.g., a person asked for file number 3698 and King would provide file number 3986.

In early April 2015, Kamyar Ghods became King’s supervisor. On April 27, 2015, King received her performance review for 2014. Ghods and Guirguis met with King for the performance review. King received a “below standard” performance evaluation and was not given a step increase in her pay. A step increase in pay is typically given once per year, following a performance evaluation. Due to the below standard performance review, King was given a 90-day performance improvement plan. The performance improvement plan was designed to remedy the substandard performance issues. Eventually, King received the 2014 step increase.

In 2013, King applied for an Administrative Service Analyst II position with the County. The Administrative Analyst position would have been a promotion for King, but King was not interviewed for the job and did not get the job. King could not recall if she applied for an Administrative Analyst position after 2013.

In approximately November 2014, King applied for an Engineer Tech II job with the County, which would have been a promotion for her. The Human Resources Department did not contact King to interview for the job. The Engineer Tech II position was filled by Firas Kassem in March 2015. King continued to be employed by the County as an administrative assistant, but she changed departments in 2017.

Edward Garcia, a forensic economist, testified as a witness for King. Garcia calculated the financial advantages King missed as a result of failing to receive the Engineer Tech II position.

The jury was given a special verdict form. The first question on the form was: “Did County of Riverside take an adverse employment action against plaintiff Beverly King between July 21, 2014 and February 3, 2016?” The jury marked the line next to “No.” As a result of the “No” response, the jury did not answer the remaining questions on the special verdict form.

DISCUSSION

A. PAY RAISE

King contends substantial evidence supports the finding “that she was denied a step increase[, and that denial] is undeniably an adverse employment action.”

In a FEHA case, the plaintiff bears the burden of proof at trial. (Green v. State of California (2007) 42 Cal.4th 254, 267; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.) Thus, the plaintiff must establish she “‘was subjected to an adverse employment action.’” (Wills v. Superior Court, supra, 195 Cal.App.4th at pp. 159-160.) “[T]he proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment [citation].” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.)

“In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. . . . [¶] ‘[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466.)

During trial, the County called King as a witness. (Evid. Code, § 776.) During the County’s examination of King, the following exchange occurred:

“[County’s Attorney]: In regard to the step increase you testified . . . that you did not get the step increase for 2014?

“[King’s Attorney]: Objection. Misstates her testimony.

“The Court: I don’t know if it did or not. Let’s not worry about what she said before.

“[County’s Attorney]: Do you agree that, in fact, you did get the step increase for the calendar year 2014?

“[King]: I—eventually, yes. I think I did eventually. Okay.”

A trier-of-fact could interpret the foregoing testimony as meaning that King obtained the 2014 step increase at some point during her employment. A jury could conclude therefore, that King was only temporarily without the pay raise for her 2014 work. A jury could reasonably find that a temporary delay in a pay raise did not qualify as materially affecting the terms and conditions of King’s employment because King’s pay was not reduced, she simply had to wait longer for her pay to increase and that waiting period created a trivial loss. (See generally McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393 [a lateral transfer is not an adverse employment action when the employee “suffers no diminution in pay or benefits”].) Because one could view the evidence as reflecting King did not suffer an adverse employment action, King has not shown, on appeal, that the evidence compels a finding in her favor.

B. PERFORMANCE REVIEW

King contends substantial evidence supports a finding that the “below standard” performance review was an adverse employment action because it impacted her ability to obtain a promotion.

Failing to promote an employee can constitute an adverse employment action. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.) Notably, King is not asserting that the failure to give her a promotion was an adverse employment action. King’s assertion is that the “below standard” performance review is substantial evidence to support a finding of an adverse employment action because that performance review led to her failure to obtain a promotion.

King initially testified that she applied for the Administrative Analyst position after July 21, 2014. However, King later testified that she applied for the Administrative Analyst position in 2013 and that she could not recall if she applied for the position again after 2013. King said she applied for the Engineer Tech II position in approximately November 2014, and the position was filled by another person in March 2015. King received her “below standard” 2014 performance evaluation on April 27, 2015.

The evidence reflects that King was denied the two promotions before the negative evaluation of her 2014 job performance. Therefore, a trier of fact could reasonably conclude that the negative evaluation of King’s 2014 job performance was not the cause of her failure to receive a promotion. Because the negative performance evaluation did not result in King’s failure to obtain a promotion, it did not materially affect the terms and conditions of her employment. Accordingly, the evidence does not compel a finding that the negative evaluation was an adverse employment action. Having found no error, we will affirm the judgment.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.