2013-00152863-CU-OE

Earl Riley vs. City of Sacramento

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (City of Sacramento)

Filed By: Rogan, Kathleen T.

The motion of defendant City of Sacramento (“City”) for summary adjudication as to the First, Second, and Third causes of action of plaintiff Earl Riley (“Mr. Riley”) alleges FEHA claims for harassment, racial discrimination, and retaliation is GRANTED as set forth below.

Mr. Riley’s request for judicial notice is granted.

Mr. Riley’s objections to the City evidence are ruled upon as follows: overruled.

City’s objections to plaintiff’s evidence are ruled upon as follows: Riley Dec. – overruled as to Nos. 1, 5, 6, 7, 9, 10, 12, 13 Exh. D ; sustained Nos. 2, 3, 4, 8, 11; Brown Dec. – overruled 16, 18, 20, 22; sustained 14, 15, 17, 19, 21; Howell Dec. – overruled 23, 25; sustained 24.

Plaintiff Mr. Riley sued City and two of its employees alleging violations of the California Fair Employment and Housing Act (“FEHA”), defamation, and intentional infliction of emotional distress. City seeks summary adjudication of the causes of action alleging racial discrimination, harassment, and retaliation.

The individual defendants, Steve Harriman (“Mr. Harriman”), and Joel Castaneda (“Mr. Castaneda”), filed concurrent motions for summary adjudication challenging the causes of action alleged against them personally, i.e. harassment, defamation, and

intentional infliction of emotional distress. Mr. Riley subsequently dismissed those individual defendants from the action. Mr. Riley also dismissed his sixth cause of action for defamation, and his seventh cause of action for intentional infliction of emotional distress.

Mr. Riley has opposed the City’s motion. However, he has preemptively dismissed his first cause of action for racial harassment. The City’s motion for summary adjudication as to that claim is moot.

Thus, City’s motion proceeds as to the Second Cause of Action for racial discrimination, and Third Cause of Action for retaliation.

As to Mr. Riley’s Second Cause of Action for race discrimination, City raises three arguments: (1) the adverse employment actions upon which Mr. Riley bases his claim are time barred; (2) Mr. Riley signed settlement agreements waiving his right to litigate the discipline underlying his claim, and (3) City had neutral non-discriminatory reasons for requiring Mr. Riley to recertify his FMLA leave which is the only alleged adverse employment action that neither time-barred nor waived by a release.

As to Mr. Riley’s Third Cause of Action, City argues that there is no evidence that Mr. Riley engaged in “protected activity” prior to any alleged adverse employment action that could constitute retaliation.

City’s motion is made upon the facts summarized below. Where Mr. Riley has disputed, or otherwise opposed the fact, the Court has referenced the dispute in the corresponding place. The following discussion of facts on the motion is not intended as a complete and exhaustive recitation of the factual record. Further, the Court has sustained some objections to evidence presented by Mr. Riley which may be referenced in the ruling for context but the Court has not relied upon that evidence in reaching its ultimate decision.

Mr. Riley filed his claim initially with the Department of Fair Employment and Housing (DFEH) on September 10, 2013 and received a right to sue letter the same day. (Statement of Undisputed Material Facts, “UF,” 60) Mr. Riley then filed this action on October 10, 2013. (UF 61) The complaint names City, Mr. Harriman, and Mr. Castaneda as defendants and alleges racial harassment, racial discrimination, retaliation, age discrimination, associative discrimination, defamation, and intentional infliction of emotional distress.

Mr. Riley was employed by City as a Sanitation Worker II from 2006 until 2013. As a Sanitation Worker, Mr. Riley drove a side loader and was responsible for collecting residential garbage. He was required to have a commercial driver’s license. (UF 15)

The City’s Department of Integrated Recycling and Solid Waste (“Department”) provides recycling and garbage collection services throughout the City. When interacting with its employees, the Department is guided by the City’s Civil Service Board Rules which address hiring, promotions, transfers, and disciplinary actions (UF 11) as well as the labor agreement (“Labor Agreement”) it executed with the

International Union of Operating Engineers, Local 39 (“Local 39”) that delineates the rights of the City and the employees in their employment with the Department. (UF 12) The Labor Agreement specifically reserves to the City the exclusive right to discipline employees in accordance with the Civil Service Rules. (UF 13, 14) The Department has adopted the full scope of the City’s rights as enumerated in the labor agreement in its own Policies and Procedures Manual. (UF 11) Mr. Riley disputes these facts to the extent the Labor Agreement and Policies Manual do not override the rights that he has under federal and state law.

City contends that the Department utilizes progressive discipline to address continued violations by employees of the Department’s workplace policies. Depending on the severity of the violation, Department management may initiate a “fact-finding” during which the employee and witnesses are interviewed. Management consults with Labor Relations and the City Attorney’s Office to determine the appropriate level of discipline. (UF 15) The Department then issues a “Letter of Intent to Impose Discipline” to the employee, informing the employee of his or her violations, and the proposed discipline to be imposed. (UF 16) The intent letter triggers the employee’s right to a Skelly meeting where the employee can provide mitigating evidence in an effort to have the proposed discipline dropped or reduced. (UF 16) Mr. Riley disputes UF 15 to the extent he argues that from 2011 to the time he quit in 2015, Mr. Harriman had complete control over the discipline at the Solid Waste Division, and although Labor Relations had input, Mr. Harriman always had control. (PF 25.)

After the Skelly meeting, if the department decides to proceed with discipline, it issues the final letter of discipline. (UF 17) The employee may appeal that discipline to an administrative hearing or arbitration at which the City has the burden of proving that it had just cause to issue the discipline. The fact-finder issues a proposed decision upholding or rejecting the discipline but that is not the end of the lengthy process. That proposed decision is provided to the Civil Service Board. The Board may uphold the discipline issued by the department, modify it, or overturn it entirely. (UF17)

If the parties are able to resolve the discipline, the hearing or arbitration are not necessary; and the discipline may be reduced in exchange for the employee’s withdrawal of his or her appeal. (UF 15) Mr. Riley disputes this fact stating that the Union has complete control of the grievance. (PF 69, 70.)

Discipline

On March 13, 2009, Mr. Riley was suspended for one day as a result of calling in sick on December 29, 2008, and going home sick the following day when he did not have enough sick time in his sick leave bank to cover the days off. (UF 20)

On May 26, 2009, Mr. Riley was given a three-day suspension after striking a guard rail in his city truck while backing up. (UF21)

The City and Mr. Riley resolved the March 13 and May 26 discipline and agreed that Mr. Riley would withdraw the appeal for the one-day suspension, that he would serve one day of the three-day suspension and work the remaining two days. In the settlement, Mr. Riley agreed to “Waive the right to any further appeal, challenge, or grievance, or to otherwise litigate any circumstances or issues associated with the one -day suspension and three (3) day suspension, to the Civil Service Board, or in any other administrative judicial forum. (UF 22) Mr. Riley disputes UF 22 on the ground that it is compound and not a “fact.” He argues that the statement in UF 22 is an attempt to turn language from a document into a legal conclusion. And, the Union controlled the grievance and Plaintiff never intended to waive any discrimination or retaliation claims. (PF 69-77)

On September 30, 2010, Mr. Riley was observed by a Code Enforcement Officer and Safety Specialist using the handheld device while driving his city vehicle. He was subsequently suspended for two days. (UF 23) On November 2, 2010, Mr. Riley and the City settled the September 30 discipline and reduced the two-day suspension to a one-day suspension. (UF 24) In that settlement agreement, Mr. Riley withdrew his appeal rights and “Waive[d] the right to challenge, grieve, or to otherwise litigate any circumstance or issues associated with the two day suspension to the Civil Service Board, or in any other administrative or judicial forum.” (UF 24)

On May 24, 2012, Mr. Riley’s pay was reduced for two bi-weekly pay periods after he solicited money from a customer to empty his garbage can. (UF 25) The customer, Mr. Smith, claimed that Mr. Riley had failed to empty Smith’s garbage can and when Smith followed Mr. Riley to ask him to dump it, Mr. Riley said it would cost Smith $10. (UF 25) Mr. Riley responds to this fact stating that a “grievance was filed which stalled the imposition of this discipline until after September 10, 2012. “(PF 78)

On March 1, 2013, the City issued Mr. Riley a letter asserting its intent to terminate Mr. Riley for failing a random drug test and testing positive for marijuana use. (UF 26) Mr. Riley disputes this fact to the extent he argued the testing process was not random or did not follow a normal course. (PF 84-85.)

On March 6, 2013, Mr. Riley and the City entered a Last Chance Agreement in which the City agreed to commute the termination to a 160-hour suspension. Mr. Riley agreed to complete a drug and alcohol detoxification and recovery plan and submit to random drug testing for five years. (UF 27) As part of this settlement/Last Chance Agreement, Mr. Riley also agreed to “…Waive his right to appeal, challenge, grieve, litigate, or otherwise file any claim regarding any matter concerning his termination for a violation of the last chance agreement or any associated circumstances or issues arising from his employment with the City of Sacramento, to the Civil Service Board, or in any other administrative or judicial forum.” (UF 27) Mr. Riley disputes this fact to the extent he argues that he did not intend to waive his right to sue for discrimination or retaliation founded upon the alleged events underlying this discipline.

FMLA

Mr. Riley utilized leave under the Family and Medical Leave Act from 2007 until a few months before he resigned.

The majority of the FMLA leave he took was to provide care to his ailing mother who was terminally ill. After using the leave without issue for many years, between 2011-2013, City contended that his absences started falling into a pattern of taking primarily Mondays off. Mr. Riley worked four ten-hour days per week; taking Mondays off gave him long four-day weekends. Because of the pattern of use that extended Mr. Riley’s weekends, the City’s leave administrator required Mr. Riley to provide recertifications of his leave every 30 days. City contends the recertification was not necessary because of doubt of the legitimacy of Mr. Riley’s mother’s illnesses, but because of the pattern that his absences created. (UF 34, 35, 37, 39 – 46)

Mr. Riley disputes UF 34 and 35. In opposition, Mr. Riley asserted that he was notified of the need for recertification by his supervisors only and was never told that the City had a problem with his pattern of taking Monday’s off. He has no recollection of ever receiving any communication from the City regarding a problem with his Monday FMLA. Brown and Howell were the supervisors who delivered the information to Mr. Riley in 2011, 2012 and early 2013. Brown specifically testifies that at no time was the issue of Mr. Riley taking Mondays ever communicated to him as Mr. Riley’s supervisor. Howell also specifically addresses this issue in his declaration testifying that at no time was the issue of Mondays ever communicated to him as Mr. Riley’s supervisor. (PF 53-54) Mr. Riley contends that he had been missing Mondays for four years while caring for his mother. He argues that the City has offered no reason for its change in policy as to him. Further, he argues that he did not exceed his monthly FMLA time. He also states several reasons why the exhibit that shows his high percentage of Monday absences is unreliable, including several Monday absences that were not related to FMLA, were holidays, or days when he was on administrative leave for discipline.

The City claims its request to Mr. Riley to recertify his need to specifically take Mondays off to care for his mother had nothing to do with Mr. Riley’s race. City argues that despite giving Mr. Riley numerous opportunities to have his mother’s physician clarify that Mr. Riley needed only Mondays off to care for his mother, the language of the medical certifications never changed, they continued to authorize only 3-4 days per month with no specification that only Mondays off were required.

In May 2007, the City approved what appears to be one of Mr. Riley’s first requests for intermittent FMLA leave to care for his mother’s medical condition. (UF 31, 32) Mr. Riley’s Medical Certification of Health Care Provider indicated that he needed to be absent from work “3-4 days/month” to help care for his mother. (UF 33) The certification was silent as to a need for Mondays off.

On November 18, 2011, the City’s Department of Human Resources notified Mr. Riley that “[o]ver the past seven months, you have shown a pattern of taking Mondays off related to your FMLA/CFRA qualified event” and required him to recertify his FMLA/CFRA every 30 days. (UF 34, 35)

In late December 2011, the City received another Medical Certification of Health Care

Provider indicating that Mr. Riley needed to be away from work “3-4 days/month” to help care for his mother. (UF 36) The certification neither increased the number of days off Mr. Riley needed per month nor did it specify that he needed Mondays off.

On January 20, 2012, the City’s Human Resources department notified Mr. Riley that his FMLA leave request was approved but he must continue to recertify for FMLA/CFRA every 30 days. (UF 37) In February 2012, the City received Mr. Riley’s Medical Certification of Health Care Provider. This certification continued to indicate that Mr. Riley needed to be away from work “3-4 days/month” to help care for his mother. (UF 38) It did not increase the number of days off nor did it specify that Mondays were critical.

On June 6, 2012, the City’s Department of Human Resources again contacted Mr. Riley regarding his absences and indicated that: “Over the past several months, you have shown a pattern of taking Mondays off related to your FMLA/CFRA qualified event. At this time, you are required to recertify for FMLA/CFRA every 30 days. Recertification must be submitted to Patty Velasquez, General Services Solid Waste by July 6, 2012 and every 30 days thereafter… For your convenience, please find the enclosed City of Sacramento Family and Medical Leave Policy including a medical certification statement you can provide to your family member’s health care provider for completion.” (UF 39, 40)

Mr. Riley disputes UF 39 and 40 on the ground that he was notified of the need for recertification only by his supervisors and was never told the City had a problem with him taking Monday’s off for FMLA. He has no recollection of ever receiving any communication from the City regarding a problem with Mondays. He states that Mr. Brown and Mr. Howell were the supervisors who delivered the information to him in 2011, 2012 and early 2013. At no time was the issue of Mondays ever communicated to them as Mr. Riley’s supervisors, and both specifically state that at no time was the issue of Mondays ever communicated to them as Mr. Riley’s supervisors. The form was always handed to him by his direct supervisors. (PF 53-54)

On July 6, 2012, the City contacted Mr. Riley to inform him that his intermittent FMLA request was approved as of June 7, 2012 but in accordance with previous correspondence, he had to continue to recertify for FMLA/CFRA every 30 days. (UF

41) On November 13, 2012, the Department of Human Resources for the City sent a letter to Mr. Riley informing him that “[o]ver the past several months, you have shown a pattern of taking Mondays off related to your FMLA/CFRA qualified event. At this time, you are required to recertify for FMLA/CFRA.” (UF 42, 43) Mr. Riley disputes these facts on the same grounds as UF 39 and 40.

On December 27, 2012, the City’s Human Resources department informed Mr. Riley that his request for FMLA/CFRA intermittent leave was approved, but he remained obligated to recertify for FMLA/CFRA every 30 days. (UF 44) In December 2012, the City received another Medical Certification indicating that Mr. Riley needed to be away from work approximately 3-4 days per month to care for his ailing mother. The certification did not increase the number of days off that Mr. Riley needed or specify that Mondays were required. (UF 45)

Based on the certification, on February 21, 2013, Human Resources approved Mr. Riley’s FMLA/CFRA through 2/24/13 but reminded him that in accordance with correspondence sent to him in November 2012, he remained required to recertify for FMLA/CFRA every 30 days. (UF 46) Mr. Riley again disputes this fact essentially arguing that he was not directly informed that City questioned his FMLA leave practices, and that all of his interactions were with Mssrs. Brown and Howell.

On January 17, 2013, the City received a Medical Certification indicating that Mr. Riley needed to be absent from work approximately three to four days per month. (UF47)

On May 31, 2013, the Human Resources department notified Mr. Riley that it was denying his request for FMLA due to his failure to provide documentation, despite two reminders. (UF 48, 49)

The City’s Leave Administrator did not know that Mr. Riley was African-American. (UF 50) Mr. Riley responds to this fact contending that Mr. Harriman was aware he was African American and Mr. Harriman made all the decisions regarding the FMLA recertifications of Mr. Riley. (PF 25)

Racial Discrimination

Based upon the foregoing facts, City argues that the Second Cause of action for FEHA racial discrimination fails because: (1) the discipline relied upon by Mr. Riley as racially motivated adverse employment actions is time-barred, (2) Mr. Riley signed settlement agreements waiving his right to litigate the discipline and the events underlying the discipline, and (3) City otherwise had neutral, non-discriminatory reasons for requesting Mr. Riley to recertify for FMLA leave due to his Monday off pattern. As explained below, the Court does not find a triable issue of fact as to whether Mr. Riley suffered an actionable adverse employment action for the reasons presented by City. City’s motion for summary adjudication as to the Second Cause of action is GRANTED.

In the Complaint, Mr. Riley alleges that he suffered racial discrimination when he was disciplined for: 1) going home without sufficient sick leave (Complaint, 3:11-17; UF 20);

2) soliciting money from a citizen to dump his trash (Complaint, 3:18-21; UF 25 ); 3) using a hand-held device while driving a City truck (Complaint, 3:22-24; UF 23); and 4) being asked to recertify his FMLA use (Complaint, 4:4-8; UF nos. 34,36, 38,39, 40, 41,43). During his deposition, he further added that the discrimination included: 5) receiving a three-day suspension for damaging his city vehicle; and 6) receiving an Intent to Terminate letter after he tested positive for marijuana use (UF 27), and entering a Last Chance Agreement on March 6, 2013 as a result of testing positive for marijuana use (UF 37).

City argues that the above listed disciplinary events for sick leave, soliciting money, damaging a City vehicle and the Last Chance letter for drug use are time-barred. A plaintiff must exhaust administrative remedies before filing a FEHA lawsuit, this requirement is jurisdictional. (Johnson v. City of Loma Linda (2000) 24 Cal. 4th 61, 70.) In order to satisfy this requirement, an employee must file a complaint with the DFEH within one year of the “last alleged unlawful act.” (Gov. Code. §12960(d).) Mr. Riley filed his complaint with DFEH on September 10, 2013 (UF 28). Therefore, any adverse act that occurred before September 10, 2012 is barred as untimely because it became final more than one year before Mr. Riley filed his complaint with the DFEH — unless as Mr. Riley argues the conduct is subject to the continuing violation doctrine in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, and Yanowitz v. L ‘Oreal (2005) 36 Cal.4th 1028.

Mr. Riley concedes that the discipline identified by City before May of 2011 is outside the standard statutory period. But, he contends that three adverse employment actions remain that are not time-barred: (1) all of the FMLA recertifications because those demands constituted a continuing violation, (2) the discipline identified in the May 2012 letter (soliciting money) because the discipline was stalled until September of 2012, and (3) the October 29, 2013 letter of intended discipline. Mr. Riley contends that these are adverse employment actions within the statutory time period which are the viable bases of the claim that he suffered discrimination either within the statutory time or from a continuing violation of his rights that continued beyond September 10, 2012.

Mr. Riley first argues that any conduct after Mr. Harriman was hired in May of 2011 is linked to the “FMLA unreasonable medical recertifications and violations” and is therefore part of a continuing course of conduct violation and hence not excluded conduct. Mr. Riley alleges that Mr. Harriman imposed the FMLA discrimination in an ongoing fashion from May of 2011 to December of 2013. (Opp., p.12:24-27.)

In contrast, City argues that its requirement that Mr. Riley recertify were issued on: November 18, 2011 (UF 34); January 20, 2012; June 6, 2012 (UF 38); July 6, 2012 (UF 39); November 13, 2012 (UF 40); December 17, 2012 (UF 41); February 21, 2013 (UF 43); (Complaint, 4:4-8). So, all of the requests to recertify are time-barred except those issued on November 13, 2012, December 17, 2012, and February 21, 2013. (UF 40, 41, 43.)

City argues that the undisputed facts support the conclusion that City issued the requests to recertify not because of Mr. Riley’s race, but because his pattern of absences conflicted with his doctor’s certification and instead suggested misuse of the leave or an unreported change in his mother’s medical condition that might have necessitated her son’s assistance on Mondays.

The evidence presented does not raised a triable issue of disputed facts as to whether City’s demands that Mr. Riley recertify that he specifically required Mondays off for FMLA leave to care for his mother were adverse employment actions motivated by Mr. Harriman’s racial animus. This is so even though Mr. Riley presents some evidence to support an inference of Mr. Harriman’s alleged racial animus, his potential control of the FMLA leave process, Mr. Riley’s claimed lack of notice as to the specific “Monday” deficiency in his leave certifications, and the apparent inconsistent application of the leave process by City to Mr. Riley over time, and as to one other Caucasian co-employee.

Under Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, where the City can demonstrate that it had a neutral and non-discriminatory reason for any action or inaction concerning Mr. Riley including the FMLA recertification requests, then any presumption of discrimination disappears. (Guz. at 355-356.) If City makes such a showing, Mr. Riley must then present sufficient evidence that City’s legitimate non-discriminatory reason is pretextual. (Id.) It is not enough to show that the City’s decisions were “wrong, mistaken, or unwise.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.)

It is undisputed that Mr. Riley utilized FMLA for many years without issue. Only during 2011-2013 did the department notice that his absences were falling into a pattern that arguably was not excused by his doctor’s note. (UF 34, 36, 37, 39, 40, 41, 43) Under the FMLA, an employer can request an employee to provide recertification every 30 days, if the circumstances described by the previous certification have changed significantly, or the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification. (29 CFR §825.308(a).) If there is a pattern of abuse, i.e., the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. For example, …”if an employee had a pattern of using unscheduled FMLA leave for migraines in conjunction with his or her scheduled days off, then the timing of the absences also might constitute a significant change in circumstances sufficient for an employer to request a recertification more frequently than every 30 day.” (29 CFR §825.308(c).)

Mr. Riley’s medical certification indicated only that he needed to take off approximately “3-4” days per month. (UF 33) Despite numerous opportunities to have his doctor modify that certification to indicate that Mr. Riley specifically needed Mondays off on a regular basis, the certification language never changed, the certifications continued to indicate only that Mr. Riley needed a total of “3-4 days off” per month to care for his mother; there was no medical need for him to take Mondays off.

City has established that the reason Mr. Riley was asked to recertify his FMLA was because the leave administrator was alerted of his pattern of Monday absences which the administrator determined was inconsistent with what the medical certification authorized. The leave administrator checked Riley’s payroll records and noted that every Monday or nearly every Monday was being taken off when his medical certification only specified three to four days off per month. (Deposition transcript of Brandy Rushing, 96:8-97:3; UF 41) After confirming the existence of a pattern of Monday absences, the Leave Administer sent Riley letters requesting that he recertify and indicating why that process was needed. Under circumstances such as these that suggest either possible abuse or a change in the employee’s medical situation, the FMLA allows an employer to seek recertification every 30 days.

City has also established that Mr. Harriman and Mr. Castenda had no involvement in the FMLA recertification process. The Court also notes that when the leave administrator sent the letters requiring Mr. Riley to recertify, she did not know that Mr. Riley was African-American. (UF 50)

Mr. Riley was never denied an FMLA right – he was not denied his FMLA time if he submitted the required documentation, he was only asked to recertify.

Mr. Riley has not presented sufficient evidence in opposition to raise a triable issue of fact as to whether the City’s demonstrated reason for requiring him to recertify his need to take Mondays for FMLA was a mere pretext for racial discrimination.

Mr. Riley implicitly argues that City’s repeated requirement that he certify his need for Mondays was unnecessary and arbitrary. He states in opposition that if “the City really wanted to verify Plaintiffs need to take Mondays off work, there things would have happened, 1) [Brown and Howell] would have been told; 2) “they would have contacted HR and confirmed it was legal to ask a doctor to certify the schedule of a non-patient, and 3) they would have called the doctor directly.” (Opp., p. 4:17-20.) However, City’s Reply persuasively demonstrates that it was required to communicate only through Mr. Riley, and could not have directly communicated with the healthcare providers to confirm that Mr. Riley needed Mondays off specifically.

Mr. Riley has presented no substantive evidence that Mr. Harriman, who was the City employee with the alleged racial animus, had any direct involvement in City’s FMLA process. Instead, the evidence is undisputed that the process which managed by the City employee with no knowledge of Mr. Riley’s race.

As to the other discipline that falls within the period of the his DFEH complaint, the May 2012 letter (soliciting money), and the October 29, 2013 letter of intended discipline and threatened discipline regarding “W time” do not constitute adverse employment actions that could found the discrimination claims. The May 2012 discipline is time-barred by the September 10, 2012 cutoff and the settlement waiver. And, the October 29, 2013 proposed discipline was never final or imposed because of Mr. Riley’s resignation on December 9, 2013.

The Court also finds that Mr. Riley entered into settlement agreements to resolve four instances of discipline that he initially relied upon as adverse employment actions motivated by his race. In addition to being time-barred, as he conceded, the settlement agreements also barred him from relying upon the underlying discipline to found his discrimination claims. (UF 20, 21, 22, 24.)

City’s motion for summary adjudication as to the Second Cause of Action is granted because Mr. Riley has failed to raise a triable issue of fact as to whether his experienced an actionable adverse employment action motivated by racial animus.

Retaliation

City argues that the only actions alleged by Mr. Riley as FEHA protected activity to support his retaliation claim is the filing of his DFEH complaint on September 10, 2013, and none of disciplinary events requests to recertify FMLA occurred after Mr. Riley lodged his DFEH complaint.

To establish a claim for retaliation under the FEHA, Mr. Riley must demonstrate that

(1) he engaged in a protected activity; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Mr. Riley’s claim for retaliation is subject to the same burden-shifting framework as his FEHA racial discrimination claim. If City can offer a legitimate, non-retaliatory reason for the alleged adverse employment action, “the presumption of retaliation ‘drops out of the picture and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz, 36 20 Cal.4th 1042; quoting Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.)

City argues that each of the disciplinary acts Mr. Riley complains about occurred before he filed his DFEH complaint, i.e. March 13, 2009 (UF 20); March 26, 2009 (UF 21); September 30, 2010 (UF 23); May 24, 2012 (UF 25); March 6, 2012 (UF 27). So, none of those acts could have occurred in retaliation for his protected activity of bringing his DFEH complaint. And, similarly none of the City’s requests that Mr. Riley recertify his FMLA occurred after he lodged his DFEH complaint either. (UF 34, 36, 38, 39, 40, 41, and 43)

Mr. Riley argues in opposition that he engaged in repeated “protected activity” long before his DFEH complaint by complaining to Brown, Howell and Castaneda about his being subject to racial discrimination. In terms of retaliation for that protected conduct, Mr. Riley argues that Defendant’s motion completely ignores the FMLA recertifications, the threatened discipline and the actual discipline identified in the October 29, 2013 letter of intent to Plaintiff. He argues that all of these dates are within the one year reach of the statute, and all occurred after he engaged in protected activity by complaining about discrimination to Brown, Howell and Castaneda.

However, as discussed with respect to the race discrimination claim, the FMLA recertification process and threatened but not imposed discipline does not constitute actionable adverse employment actions.

City’s motion for summary adjudication as to the retaliation claim is GRANTED because there is no triable issue of material fact that Mr. Riley suffered an actionable adverse employment action following his protected activity.

City shall prepare for the Court’s consideration a formal order pursuant to Code of Civil Procedure section 437c(g) and CRC 3.1312, consistent with this ruling.