Filed 5/20/20 Adams v. Regents of the University of Cal. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MICHAEL ADAMS,

Plaintiff and Appellant,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.

Defendants and Respondents. A157570

(County of Alameda

Super. Ct. No. RG17863378)

Michael Adams contends he was terminated in retaliation for whistleblower complaints he made as an employee at the University of California at San Francisco (the University). He appeals from the trial court’s grant of summary judgment motions by defendants Regents of the University of California (the Regents) and then-Chancellor of the University, Susan Desmond-Hellmann. We agree with the trial court that Adams failed to raise a triable issue of fact as to whether the reasons proffered by the Regents and Desmond-Hellmann for his termination were a pretext for retaliation. In addition, we affirm the trial court’s award of costs against Adams.

BACKGROUND

A.

1.

Adams was the Director of the Office of Affirmative Action, Equal Opportunity, and Diversity (Affirmative Action Office) at the University, where he worked for approximately 23 years prior to termination. The Affirmative Action Office was responsible for ensuring that the University followed equal opportunity laws and for the development, evaluation, and monitoring of employment and business-related affirmative action plans on campus. As Director, Adams was responsible for producing the University’s annual affirmative action plan; resolving campus discrimination complaints; ensuring that human resources policies, campus business practices, and hiring processes were consistent with equal opportunity values; and educating the campus on such values. Additionally, Adams ensured that the University’s affirmative action programs complied with federal grant and contract requirements. According to his former staff, Adams was a “pre-eminent authority” on affirmative action and was responsible for “huge changes” at the University. In over two decades at the University, he received only exemplary performance reviews until 2011.

2.

Desmond-Hellmann came to the University as Chancellor in 2009. In 2010, under her leadership, the University initiated a campus-wide reorganization in response to major budget cuts.

A 25-member “Subcommittee on Outreach and Diversity” recommended the creation of a new centralized, campus-wide diversity office that would be overseen by someone at the Vice Chancellor level. Adams—a member of the subcommittee—was the lone dissenter. On the recommendation of a 12-member search committee, Desmond-Hellmann hired Renee Navarro, an internal candidate, as Vice Chancellor to head the new office, which was named the Office of Diversity and Outreach. Adams applied for the position along with other candidates, but the search committee did not select him for an interview.

After assuming her new role in December 2010, Navarro decided to consolidate four diversity-related offices into the new Office of Diversity and Outreach, including the Affirmative Action Office. Adams and other employees raised concerns about the reorganization’s disproportionate impact on women and minorities. Adams also voiced concerns about potential noncompliance with federal and state law and contractual obligations to “maintain an effective affirmative action plan.”

As part of the reorganization, functions performed by the Affirmative Action Office were transferred to the Office of Diversity and Outreach or other departments, ultimately resulting in the elimination Adams’s Office and staff although Adams retained his title as Director.

In May 2011, Adams filed a formal whistleblower complaint with Dwaine Duckett in the University’s Office of the President, asserting that the dismantling of the Affirmative Action Office amounted to discrimination and retaliation. Desmond-Hellmann was aware of Adams’s complaint and attended a meeting with Adams and Duckett to discuss it.

3.

Around this time, Navarro became Adams’s supervisor. Adams’s relationship with Navarro was contentious. He vocally opposed the reorganization and told staff that he would fight it. Navarro claimed he failed to write an important report and generally did not perform at the level she expected of a director. Adams questioned Navarro’s qualifications for the position and was upset that he had not been interviewed for it. Adams described the issues between them as “disharmony” or “disagreement” (rather than “conflict”) and admitted that they had “tense” conversations about the reorganization

In October 2011, Navarro completed an evaluation of Adams’s performance for the period from July 1, 2010, to June 30, 2011, and rated him as “partially meets” expectations. Navarro told Adams, “If you were not spending so much time fighting the organizational changes you would get a better evaluation.” This evaluation was the only non-exemplary performance evaluation Adams received during his 23-year career at the University.

4.

Also in October 2011, as the result of a complaint made against Adams in August, the University initiated an investigation of Adams. An investigator from the University of California Office of the President, Judith Rosenberg, conducted the investigation.

In her report, Rosenberg sustained some allegations against Adams and rejected others. She sustained allegations that Adams had referred to Navarro as a “female Uncle Tom” during a staff meeting, that he spoke to his staff about “fighting the reorganization,” that he engaged in activities that undermined Navarro, and that some employees feared that Adams would retaliate against them. The 43-page report is detailed, discusses the witnesses and evaluates their credibility, acknowledges conflicting evidence, and explains its findings.

5.

Relying on Rosenberg’s report, in April 2012, Desmond-Hellmann sent Adams a Notice of Intent to Dismiss for Misconduct, stating that “[y]our actions in an attempt to undermine [Navarro] and sabotage the success of this new and important organization are unacceptable and constitute misconduct.” The Notice listed four charges against Adams. First, “[y]ou undermined [Navarro] by scheduling a meeting with campus leaders at a date and time when she would not be available and then you were completely unprepared reflecting poorly on yourself and [Navarro].” Second, “[y]ou created an environment of intimidation where employees are afraid to come forward to raise concerns.” Third, “[y]ou made inappropriate comments about [Navarro] by making demeaning comments about her in your staff meeting.” Fourth, “[y]ou stated you would attempt to undermine [Navarro] in an effort to cause her to be unsuccessful.”

That same month, Adams filed a complaint concerning retaliation and discrimination in connection with the Notice of Intent to Dismiss for Misconduct, as well as an internal grievance and whistleblower retaliation complaint.

Following the issuance of the Notice of Intent to Dismiss for Misconduct, Vice Chancellor Joseph Castro conducted a review of the four charges to determine whether they were supported. Adams objected to Castro being the reviewer because Castro would be reluctant to second-guess his superior, Desmond-Hellmann, and because Castro was a witness to some of the events in question. However, the University denied Adams’s request for a different reviewer. Castro’s report, issued in June 2012, relied on Rosenberg’s report and concluded that, with one exception, the charges were supported. Castro concluded that there was no evidence to support the allegation that Adams scheduled the meeting on the federal audit at a time when Navarro was unable to attend.

Desmond-Hellmann terminated Adams’s employment effective June 6, 2012, stating that Castro’s review “supports the decision to dismiss you for misconduct.”

Subsequent to Adams’s termination, the University entered into a “Conciliation Agreement” with the Office of Federal Contract Compliance Programs. The Agreement indicates that that Office found two violations of federal regulations by the University for the period from November 2010 to October 2011: (1) it failed to collect and maintain job applicant data; and (2) it failed to accurately monitor its employment process to determine whether there were disparities based on race, gender, or ethnicity.

B.

Adams sued the Regents and Desmond-Hellmann, asserting whistleblower and general retaliation claims pursuant to Government Code section 8547.10, Labor Code section 1102.5, and Government Code section 12900, et seq. The trial court granted motions for summary adjudication by the Regents and Desmond-Hellmann and entered judgment against Adams. The court concluded that Adams established a prima facie case of retaliation but failed to raise a triable issue of fact as to whether the purported reasons for his termination were pretextual. The court also granted 44 objections to Adams’s summary judgment evidence. Finally, the court awarded the Regents and Desmond-Hellmann their costs of suit.

DISCUSSION

A.

As an initial matter, the Regents and Desmond-Hellmann contend that by failing to address them in his opening brief, Adams has waived any challenge to the trial court’s rulings sustaining 44 objections to Adams’s evidence. We agree.

Without addressing waiver, Adams asserts that because the court did not incorporate its evidentiary rulings in its summary judgment order, this court may review the evidentiary objections de novo, citing Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid). However, Reid concerned a situation in which the trial court “did not rule specifically” on the evidentiary objections. (Id., at p. 522.) Here, there is no question that the court sustained 44 objections. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz) [in reviewing a summary judgment decision, we “consider[ ] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained”].) The court also incorporated its evidentiary rulings, explaining that “[b]y separate orders, the court issues its rulings on defendants’ Objections” to Adams’s evidence. It was incumbent on Adams to challenge those rulings in his opening brief if he wished to appeal them. (See, e.g., People v. Tully (2012) 54 Cal.4th 952, 1075.) Accordingly, we disregard the evidence excluded by the trial court and have omitted it from this opinion.

Adams also contends that the trial court abused its discretion in declining to consider certain findings of the Equal Employment Opportunity Commission and Office of Federal Contract Compliance Programs. However, because Adams fails to adequately identify in the record the evidence to which he refers, we reject his contention. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)

B.

Adams asserts that the trial court’s summary judgment ruling was erroneous because he raised a triable issue on the question whether the University’s reasons for terminating him were pretextual. We disagree.

1.

The existence of a triable issue of fact is a legal question that we review de novo. (Limited Stores, Inc. v. Franchise Tax Bd. (2007) 152 Cal.App.4th 1491, 1495-1496.) We construe the facts in the light most favorable to Adams, the party opposing summary judgment. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “[S]ummary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)

We assume that Adams has raised a triable issue of fact on each of the elements necessary to establish a prima facie case of retaliation. We also find no error with the trial court’s conclusion that the Regents and Desmond-Hellmann met their burden of providing a legitimate, non-retaliatory basis for dismissing Adams (i.e., the investigators’ findings he had committed misconduct). (See Guz, supra, 24 Cal.4th at p. 360.)

Because the Regents and Desmond-Hellmann offered a legitimate, non-retaliatory reason for its decision, the burden shifted to Adams to “offer evidence sufficient to allow a trier of fact to find either the [employer’s] stated reasons were pretextual or the circumstances ‘ “ as a whole support[ ] a reasoned inference that the challenged action was the product of . . . retaliatory animus. ” ’ ”(Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94.) An employee may demonstrate that the employer’s reasons are a pretext for discrimination or retaliation by showing “ ‘ “the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.’ ” ’ (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594.) Pretext may also “ ‘ “ be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before the termination.’ ” ’ (Ibid.) However, evidence that the employer was lying, while relevant, is generally not sufficient by itself. (Guz, supra, 24 Cal.4th at pp. 360-361.) Ultimately, Adams must produce credible evidence supporting a rational inference that the decision to fire him was based on an improper motive. (Id. at p. 361.) “[A]n employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Ibid.)

2.

The Regents and Desmond-Hellmann produced strong evidence of a legitimate motive for dismissing Adams. Desmond-Hellmann cited multiple incidents of misconduct based on an independent investigation with detailed findings that were largely substantiated in a second review by Castro. In particular the investigator, Rosenberg, found Adams made “inappropriate comments” about Navarro in a staff meeting, calling her a “female Uncle Tom.” Rosenberg’s report acknowledges conflicting evidence, evaluates the credibility of the witnesses (including a key witness who had sued Adams three years earlier), and lays out its findings in detail. The “female Uncle Tom” finding is bolstered by Adams’s contentious relationship with Navarro and his admission to Rosenberg that he had participated in racially disparaging discussions about Navarro—that she was “more comfortable with white people” and “preferred to hire Caucasians.” Thus, while the record does contain conflicting evidence on the “female Uncle Tom” allegation, there is no dispute that credible evidence supports the report’s conclusion; and Adams presents no evidence from which a rational factfinder could infer that Rosenberg was biased, that her findings are implausible or baseless, or that Desmond-Hellmann did not honestly rely on the findings. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 171 [affirming summary judgment where, inter alia, employee failed to produce evidence that employer did not honestly believe allegations of misconduct, or any other evidence of pretext]; Guz, supra, 24 Cal.4th at p. 363 [“in an appropriate case, an inference of dissembling may arise where the employer has given shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions”].) Even for an employee like Adams with a successful track record, making racially disparaging comments about a supervisor is misconduct sufficient to justify termination.

Adams’s evidence that retaliatory animus motivated his termination is weak. Adams asserts that he received his first negative performance evaluation only after his protected activity, and he presented evidence that Navarro told him: “If you were not spending so much time fighting the organizational changes you would get a better evaluation.” However, Adams does not effectively dispute Rosenberg’s finding that he “behaved in a manner that interfered with and undermined Dr. Navarro’s ability to do her job.” Adams himself described disagreements with Navarro and the “disharmony” of their relationship. As a new supervisor, Navarro was entitled to have a different opinion of Adams’s performance than his prior supervisors, particularly given undisputed evidence of their difficult relationship, Navarro’s complaints about his work, Adams’s suggestions that Navarro was unqualified for her job, and his view that he was better qualified. While true that his termination occurred after he raised concerns about the reorganization, it is undisputed that at least some of the misconduct, including the allegation that Adams called Navarro a “female Uncle Tom,” surfaced in the interim. Moreover, Adams introduced evidence that several other employees raised concerns about the impact of the reorganization on women and minorities, which further undercuts the possibility that the University singled out Adams for retaliation.

In short, the Regents and Desmond-Hellmann produced a “plausible, and largely uncontradicted, explanation” for dismissing Adams, and Adams’s evidence at best raised a “only a weak suspicion” of retaliation. (Guz, supra, 24 Cal.4th at pp. 369-370.) Considering the totality of the circumstances, no rational trier of fact could conclude that Adams was terminated due to retaliation, rather than misconduct.

C.

Finally, Adams appeals the trial court’s order denying his motion to tax costs or in the alternative to strike the cost application filed by the Regents and Desmond-Hellmann. We review the award for abuse of discretion, and must affirm “ ‘[s]o “long as there exists” ‘a reasonable or even fairly debatable justification.’ ” ’ ” (Retzloff v. Moulton Parkway Residents’ Assn., No. One (2017) 14 Cal.App.5th 742, 752.) We find no abuse of discretion here.

The trial court held that Adams waived his objections to the Regents and Desmond-Hellmann’s application for costs by filing his motion approximately 12 weeks after the deadline in California Rules of Court rule 3.1700(b)(1). The court also noted Adams’s motion was untimely in two additional respects: he served it on the Regents and Desmond-Hellmann after the service deadline, and his filing failed to comply with the requirement in Code of Civil Procedure section 1005, subdivision (b), that all moving papers be filed at least 16 court days before the applicable hearing. Failure to file a timely motion to tax costs “ ‘constitutes a waiver of the right to object.’ ” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290.) On appeal, Adams fails to address this aspect of the trial court’s ruling, implicitly conceding that his filing was untimely. We therefore affirm.

DISPOSITION

The judgment in favor of the Regents and Desmond-Hellmann is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

 

_______________________

BURNS, J.

We concur:

____________________________

JONES, P.J.

____________________________

NEEDHAM, J.

A157570