Filed 8/12/20 Monti v. Montebello Unified School Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

JOHN MONTI, JR.,

Plaintiff and Appellant,

v.

MONTEBELLO UNIFIED SCHOOL DISTRICT,

Defendant and Respondent.

B296224

(Los Angeles County

Super. Ct. No. BC681248)

APPEAL from a judgment of the Superior Court of Los Angeles County. David Sotelo, Judge. Affirmed.

The Law Office of Jan T. Aune and Jan T. Aune for Plaintiff and Appellant.

Olivarez Madruga Lemieux O’Neill, Thomas M. Madrgua and Deborah Lee-German for Defendant and Respondent.

John Monti, Jr. (appellant) appeals from a final judgment entered after the trial court granted summary judgment of appellant’s claims against Montebello Unified School District (respondent or district). Appellant appeals from the judgment only as to his fifth cause of action for whistleblower retaliation under Labor Code section 1102.5, subdivision (b) (section 1102.5). The trial court ruled against appellant as to this cause of action on the ground that appellant had failed to make a prima facie showing that he suffered an adverse employment action, an essential element of this claim. Because appellant has failed to show that a triable issue of fact exists as to this element, we affirm the judgment.

FACTUAL BACKGROUND

Appellant was hired as a teacher by the district in 2002. Appellant’s extensive educational background includes credentials for teaching Spanish courses. Appellant began teaching at Montebello High School (MHS) in 2010. Between 2014 and 2016, appellant taught Spanish 1-2 Honors-Spanish for Spanish Speakers at MHS. Starting in the 2017-2018 school year, appellant taught Spanish 3-4 regular track at MHS.

On or about September 16, 2014, while in a classroom where he taught, appellant overheard a male student (student one) state to another male student (student two) that student one had put his hand down the pants of a girl and penetrated her (the sexual incident). Student one graphically described that he had completed the act of “fisting” the girl’s vagina.

Appellant wrote a referral and the students were sent to Assistant Principal Esperanza Guzman. Appellant believed that Guzman made no effort to locate the girl, and learned that Guzman had not reported the incident to law enforcement. Appellant therefore reported the incident to Montebello Police Department (MPD). Appellant also filed a written complaint against Guzman with Jill Rojas, the Assistant Superintendent of Human Resources.

When appellant later met with the MHS principal, appellant advised the principal that appellant had reported the sexual incident to MPD. At the meeting, the principal attacked appellant’s professional competency as a teacher and said that appellant should leave MHS if he did not agree with the way that MHS was handling the sexual incident.

On September 22, 2014, appellant wrote to the principal: “The timeliness of your comments as well as the substance of them has me greatly concerned and have sickened me to physical illness.”

The Montebello School District Police completed an investigation, concluding that no victim came forward; the issue was properly handled administratively; and no crime occurred. Guzman counseled the two male students regarding the impropriety of their actions, and relayed the details of their conversation to the students’ parents. The students were assigned “Saturday school” as a result of their inappropriate actions.

Appellant was not assigned the Spanish for Spanish Speakers class for the 2017-2018 school year. Instead, he was assigned to teach Spanish 3-4 regular track. The change was precipitated by parent complaints regarding appellant’s instruction of the Spanish 1-2 honors class. Appellant’s assignment to Spanish 3-4 did not affect his ability to be promoted to Spanish Department Chair, did not have any impact on his pay, and had no impact on any other employment opportunities. It is common for teachers to be reassigned based on student needs, scheduling issues, and teacher preferences. The determination of who becomes department chair is made by other teachers in the department, not by the school principal or assistant principals.

At MHS, teachers may be assigned a sixth class to teach in a given year. Teachers earn approximately $2,000 per month more for teaching the extra class. The decision to assign a sixth class is based on the needs of the student body, the funding of the district, and teacher and student schedules. Appellant had not been assigned a sixth class in either the 2014-2015 and 2015-2016 school years. The decision not to assign appellant a sixth class in the 2014-2015 school year had been made prior to the sexual incident, as the school year began in August 2014. The decision not to assign appellant a sixth class in 2014-2015 and 2015-2016 was due to student needs and scheduling issues, and not in retaliation against appellant for any of the complaints appellant filed. Appellant was assigned a sixth class in the 2016-2017 school year.

PROCEDURAL HISTORY

On October 27, 2016, appellant filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) alleging that the district violated the Fair Employment and Housing Act (FEHA). Appellant subsequently received a right to sue letter. On October 24, 2017, appellant filed an amended administrative complaint with DFEH. Appellant identified his race and color as white and his national origin as born in the United States of America.

Appellant’s second amended complaint (SAC) against respondent was filed on April 27, 2018. It alleged five causes of action: (1) failure to prevent race, color, and national origin discrimination; (2) harassment based on race, color, and national origin; (3) failure to prevent harassment based on race, color, and national origin; (4) retaliation based on race, color, and national origin; and (5) whistleblower retaliation.

The trial court sustained respondent’s demurrer without leave to amend as to appellant’s first and second causes of action.

On November 2, 2018, respondent served and filed its motion for summary judgment/adjudication as to the remaining causes of action. On December 31, 2018, appellant served and filed his opposition. On January 10, 2019, respondent served and filed its reply brief.

On March 1, 2019, the trial court issued a minute order and ruling on respondent’s motion. The motion was granted as to all three remaining causes of action. As to appellant’s fifth cause of action for whistleblower retaliation pursuant to section 1102.5, the trial court noted that appellant was required to show “(1) he engaged in a protected activity, (2) his employer subjected [him] to an adverse employment action, and (3) there is a causal link between the two.” (Citing Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384 (Patten).) The court found that the district met its initial burden to show that appellant was not subjected to an adverse employment action, and that appellant did not, and could not, show that a triable issue of fact existed as to this element.

On March 5, 2019, appellant filed his notice of appeal from the judgment entered after the trial court granted respondent’s motion for summary judgment.

DISCUSSION

I. Applicable law and standard of review

A. Summary judgment

The purpose of the summary judgment procedure is to reveal whether “there is no triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) An issue of material fact is one which “warrants the time and cost of factfinding by trial. . . .’ [Citation.]” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) The trial court’s role is to determine whether such issues of fact exist, not to decide the merits of such issues. (California Traditions, Inc. v. Claremont Liability Ins. Co. (2011) 197 Cal.App.4th 410, 416.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) The defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) A defendant may meet this burden by showing that the claim cannot be established due to a lack of evidence on an essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. If the plaintiff is unable to show the existence of a triable issue of material fact, summary judgment in favor of the defendant is proper. (Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590.)

When deciding whether to grant or deny summary judgment, the trial court must consider all of the evidence set forth in the papers, except that to which the court has sustained an objection. The evidence must be considered in the light most favorable to the party opposing the summary judgment. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

We review the trial court’s decision to grant the summary judgment motion de novo, applying the same legal standard as the trial court. (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1414, citing Paz v. State of California (2000) 22 Cal.4th 550, 557.)

B. Whistleblower retaliation pursuant to section 1102.5

Section 1102.5, subdivision (b), provides:

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

A plaintiff in a whistleblower retaliation lawsuit brought under section 1102.5, subdivision (b), must show a prima facie case of retaliation. To meet this burden, the plaintiff must show that (1) he engaged in protected activity; (2) his employer subjected him to adverse employment action; and (3) there is a causal link between the two. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540, as modified Aug. 19, 2014.) The legal standard for an “adverse employment action” under section 1102.5, subdivision (b), is the same as the standard applied in the FEHA context. (Patten, supra, 134 Cal.App.4th at p. 1381.)

An adverse employment action “requires a ‘substantial adverse change in the terms and conditions of the plaintiff’s employment.’ [Citation.]” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) “‘“A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”. . .’ [Citations.]” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357.) Just because “‘an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’. . .” (Ibid.) A plaintiff does not show an adverse employment action merely by showing a minor change in working conditions or a trivial action on the part of his employer. Instead, “‘[t]he plaintiff must show the employer’s . . . actions had a detrimental and substantial effect on the plaintiff’s employment.’ [Citations.]” (Ibid.)

II. Appellant failed to raise a triable issue of material fact regarding an adverse employment action

The parties do not dispute that appellant engaged in protected activity under section 1102.5, subdivision (b). The trial court granted respondent’s motion on this cause of action based on appellant’s failure to sufficiently show that he suffered an adverse employment action. Using the standards described above, we analyze appellant’s claims as to this element of his whistleblower retaliation cause of action, and also conclude that he failed to raise a triable issue of material fact.

A. Principal’s comments

Appellant claims he was retaliated against by Principal Schwartz at the time appellant disclosed that he had reported the sexual incident to law enforcement. Schwartz attacked appellant’s professional competency and told appellant that he should leave MHS if he did not agree with the way the sexual incident was handled. Appellant argues that through the principal’s actions, he was severely harassed and subjected to a hostile work environment. Appellant notes that he suffered extreme emotional distress at that time, which he documented in his September 22, 2014 letter. Appellant argues that an objective, reasonable person who was similarly threatened by the highest-ranking person in an organization would be concerned for his job security. Appellant contends that this evidence is sufficient to create a triable issue of fact as to whether he suffered an adverse employment action.

“[A] single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 879 (Meeks).) In Meeks, a female store manager (Meeks) claimed that she was a victim of sexual harassment and retaliation for reporting the harassment. (Id. at pp. 860-861.) When Meeks reported the harassment to her supervisor, the supervisor expressed anger at having to make a report to the human resources department, and instructed Meeks to tell the human resources department that everything had been handled. Further, Meeks’s supervisor threatened to fire Meeks and her husband if Meeks took the complaint higher. (Id. at p. 860.) There was no evidence that the threat was carried out, and no other evidence of an adverse employment action. Therefore, the employer was entitled to summary judgment on Meeks’s retaliation claim because Meeks had failed to show an adverse employment action.

Here, the alleged threat that was made to appellant was less severe than the threat alleged in Meeks. Instead of being threatened with termination, appellant was told that he should leave if he was unhappy. As in Meeks, no threat to appellant’s employment was ever carried out and he remained employed throughout the litigation below.

Appellant attempts to distinguish Meeks, arguing that the facts are different. Appellant argues that the supervisor to whom the plaintiff in Meeks complained was not the highest-ranking individual in the company, noting that the supervisor threatened to fire Meeks if she took her complaints higher. Appellant argues that the principal, in contrast, was the highest-ranking individual at MHS. Further, Meeks presented no evidence that she was emotionally distraught at her supervisor’s comments, whereas appellant wrote a letter shortly after the incident explaining how the principal’s conduct made him physically ill.

These factual differences do not overshadow the similarities between the two cases. In each case, the complaining party was faced with a threat concerning his or her employment. In each case, the threat was not carried out. The single threat, never acted upon, does not constitute an adverse employment action under the law.

Further, minor actions and conduct that are objectively likely to anger or upset a reasonable employee do not qualify as adverse employment acts under FEHA, as long as such actions do not substantially and detrimentally affect the terms, conditions, or privileges of employment. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373 (Horsford).) For example, generally “oral or written criticism of any employee . . . does not meet the definition of an adverse employment action under FEHA. [Citations.]” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1457 (Akers); see also Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 822 [act of transferring or “writing up” an employee is not retaliation].)

Appellant contends that the actions of the principal did not constitute a single threat. Instead, he claims, the remarks combined an attack on appellant’s professional competency and a threat that he may receive subpar performance evaluations. Appellant emphasizes that these threats were made by the highest-ranking individual on MHS campus.

In spite of these distinctions, appellant has not shown that the principal’s comments constituted, or led to, any adverse employment action. While inappropriate, they did not adversely or materially affect the terms, conditions, or privileges of his employment. Thus, such comments do not permit appellant to proceed with an action for whistleblower retaliation.

B. Teaching assignments

Appellant further argues that the district’s decisions not to assign him a sixth class for the 2014-2015, 2015-2016, and 2017-2018 school years constituted adverse employment actions in retaliation for his reporting of the sexual incident on September 16, 2014. Evidence showed that the district’s decision not to assign appellant a sixth class during these school years was due to student needs and scheduling issues. Moreover, the decision not to assign a sixth class to appellant for the 2014-2015 school year was made in August 2014, prior to the reporting of the sexual incident in September 2014. Finally, appellant admits that he was assigned a sixth class for the 2016-2017 school year. This fact undermines his claim of retaliation.

Appellant next argues that he suffered an adverse employment action when the district removed him from teaching the Spanish for Spanish Speakers class, which appellant asserted improved his chances for being promoted. However, the district produced contrary evidence showing that appellant’s teaching assignments had no bearing on his promotional opportunities. There was no evidence that appellant was ever denied a promotional opportunity nor is there any district policy restricting his promotional opportunities based on the changes to his teaching assignments. Acts which anger or upset an employee are insufficient to create a prima facie case of whistleblower retaliation unless such acts are reasonably likely to impair an employee’s job performance, prospects for advancement or promotion. (Horsford, supra, 132 Cal.App.4th at p. 373.) There was no evidence that appellant’s reassignment to a different class had any impact on his prospects for advancement or promotion. Thus, the reassignment did not, as a matter of law, constitute an adverse employment action.

C. Totality of the circumstances

Appellant cites Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 for the proposition that we should consider his allegations of adverse employment action under a totality of the circumstances approach. (Id. at p. 1036.) As set forth in Yanowitz, the impact of an employer’s action may be fact specific. “[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052, fn. omitted.) An employer’s retaliatory acts may not constitute “one swift blow,” but instead may be “a series of subtle, yet damaging, injuries.” (Id. at p. 1055.) Each separate act on the part of the employer need not constitute an adverse employment action. (Id. at p. 1056.)

Taking into consideration the totality of the circumstances, and viewing the district’s actions as a whole, appellant still fails to allege any act or series of acts which has materially affected the terms, conditions, or privileges of his employment. Appellant was never removed from his position as a Spanish language instructor, and has provided no evidence that his assignment to different classes affected his ability to be promoted or to obtain other employment opportunities. Because he has failed to establish a prima facie showing of an adverse employment action, his whistleblower retaliation claim fails as a matter of law.

III. Exclusion of evidence

The trial court sustained certain of respondent’s objections to appellant’s declaration, and concluded that “[t]he remaining evidentiary objections are not material to the Court’s ruling and as such the Court declines to rule on them.” Appellant argues that the objections concerned relevant evidence and were subject to hearsay exceptions such as admission of a party opponent and declarant’s state of mind. An appellate court generally reviews a court’s rulings on evidentiary objections for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688.)

Appellant argues that all statements cited to in his opening brief are admissible under the hearsay rule. However, he fails to point out which statements were excluded by the trial court. Respondent presents no objection to any evidence cited in appellant’s opening brief. Appellant admits that respondent did not object to exhibit C of appellant’s declaration, which contained the written complaints appellant made to respondent based on the comments of Principal Schwartz. While appellant argues that all the statements of Schwartz and Guzman were against respondent’s interest and were admissions of a party opponent, he fails to explain how such evidence would save his retaliation claim from summary judgment. Appellant also fails to point to any specific statement that was material to the issue of whether he suffered an adverse employment action. In short, appellant has not set forth in sufficient detail the consequences of the trial court’s evidentiary ruling.

Anyone “who seeks to predicate . . . a reversal of [a judgment]” on error “must show that the error was a prejudicial one.” (People v. Wilson (1963) 60 Cal.2d 139, Cal. Const., art. VI, § 13.) Appellant has failed to show he was prejudiced by the trial court’s decision to decline to rule on respondent’s evidentiary objections.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

LUI

__________________________, J.

HOFFSTADT