Patten v. Grant Joint Union High School

• Decision Date: 19 December 2005
• Docket Number: No. C048156.,C048156.
• Citation: 134 Cal.App.4th 1378,37 Cal.Rptr.3d 113
• Court: California Court of Appeals Court of Appeals
• Parties: Colleen PATTEN, Plaintiff and Appellant, v. GRANT JOINT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

37 Cal.Rptr.3d 113

134 Cal.App.4th 1378

Colleen PATTEN, Plaintiff and Appellant, v. GRANT JOINT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

No. C048156.

Court of Appeal, Third District.

December 19, 2005.

Leo F. Donahue, Gold River, for Plaintiff and Appellant.

Anwyl, Scoffield & Stepp, James T. Anwyl, Elisa W. Ungerman, Sacramento, and Lynn A. Garcia for Defendant and Respondent.

DAVIS, J.

In this appeal, we conclude that the standard of "adverse employment action" that our state Supreme Court recently defined and applied to an employment retaliation lawsuit under the California Fair Employment and Housing Act (FEHA) also applies to an employment retaliation lawsuit under Labor Code section 1102.5, subdivision (b) (retaliation for whistleblowing regarding reasonably believed legal violations). (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 116 P.3d 1123.)

In applying this standard, we reverse a summary judgment in favor of the defendant employer, Grant Joint Union High School District (Grant). We conclude that plaintiff Colleen Patten (Patten) has raised a triable issue of material fact regarding whether her transfer from one Principal position to another constituted an adverse employment action.

BACKGROUND

At the time of the relevant events here, Labor Code section 1102.5, subdivision (b) (hereafter § 1102.5(b)) provided: "No employer shall retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation." (Section 1102.5(b) was amended in 2003, but remains substantively the same. (Stats.2003, ch. 484, § 2.))¹

The summary judgment papers show the following.

Patten was the principal at Foothill Farms Junior High School (Foothill) during the 2000 and 2001 school years. The year before Patten arrived as principal, Foothill had been designated an underperforming school. This made Foothill eligible for additional special funding under the Immediate Intervention/Underperforming Schools Program (II/USP).

Patten contends she disclosed four legal violations for which Grant retaliated against her.

The first disclosure arose from Grant's year-end financial audit for the 2000-2001 school year. Grant discovered a surplus of approximately $127,000 in Foothill's II/USP budget. Grant wanted to reassign expenditures already incurred for at least one other educational program, and perhaps others, to nearly $104,000 of this surplus. This would allow Grant to retain this amount of unspent II/USP funds (rather than return the amount to the state) and, as Patten maintains, would provide Grant with funds to clean up its budget (Grant was allowed to hold onto the $23,000 difference in any event).

To effectuate this reassignment of expenditures, Grant, in early September 2001, requested that Patten sign blank "transfer of funds" forms. Patten refused, and explained to Grant why. According to Patten, "there was no way to ensure that the [reassigned] expenditures were legitimate based on II/USP guidelines"; she "was fearful of the legality of this action." District personnel subsequently carried out this reassignment. In October 2001, Patten met with a state assembly member and a representative of a state senator regarding this matter.

The second disclosure also arose from events in September 2001. Patten received complaints from female students that a male physical education (P.E.) teacher at Foothill was peering into the girl's locker room. Patten disclosed this information to her district superiors for personnel action.

The third disclosure involved an off-color remark that a male science teacher at Foothill had made to a female student in April 2002. Again, Patten disclosed this information to her superiors for personnel action.

The fourth and final disclosure encompassed the issue of school safety. In April 2001, a student had been assaulted on the Foothill campus. Foothill is a large campus and, at the time, was geographically split. Patten requested on this occasion as on others, additional staff to keep the campus safe.

Patten attended a Grant School Board meeting on March 13, 2002. There, she apparently provided information related to the II/USP funding issue that contradicted what the superintendent had previously told the Board.

On June 21, 2002, Grant notified Patten that she was being transferred to another principal position; this position was to a much smaller junior high school comprised of high-achieving students, the Campus Verdes Alternative Magnet School (CVAMS). Patten never began work at the CVAMS position. Patten had been diagnosed with mononucleosis in late March 2002. Although she missed about three weeks of work, she returned to duty and completed the 2001-2002 school year at Foothill while continuing to experience symptoms of her infection through July 9, 2002. Patten's health initially precluded her from returning to work during the summer and early fall months of 2002. Eventually, she claimed in late October 2002 that she had been forced to quit her job based on Grant's retaliatory conduct.

In February 2003, Patten sued Grant for whistleblower retaliation under section 1102.5(b) (based on the four disclosures of legal violations described above). She also sued Grant for constructive discharge and for violation of free speech.

The trial court upheld Grant's motion for summary judgment. The court found that only the disclosure regarding the II/USP funding constituted protected whistleblowing. As to that disclosure, however, the court determined that Grant had not retaliated against Patten by subjecting her to an adverse employment action because the wages, benefits and duties (as set forth by the job descriptions) of the CVAMS Principal position were the same as at Foothill, and both schools were junior highs.

In this appeal, only the whistleblower retaliation cause of action under section 1102.5(b) is at issue.

DISCUSSION

1. Standard of Review and the Section 1102.5(b) Cause of Action Elements

A motion for summary judgment shall be granted if all the evidentiary papers submitted, which we review independently, 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. We do not resolve factual issues but ascertain whether there are any to resolve. (Code Civ. Proc., § 437c, subd. (c); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 474-475, 4 Cal.Rptr.2d 522 (Flait); Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1305, 130 Cal.Rptr.2d 347 (Colores).)

A defendant "may move for summary judgment in any action or proceeding if it is contended that the action has no merit." (Code Civ. Proc., § 437c, subd. (a).) A cause of action has no merit if it is shown that the plaintiff cannot establish one of the action's elements. (Code Civ. Proc., § 437c, subd. (o)(1); Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710.)

Because a summary judgment denies the losing party a trial, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party's favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517; Colores, supra, 105 Cal.App.4th at p. 1305, 130 Cal.Rptr.2d 347.)

As noted, under section 1102.5(b), an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency that the employee reasonably believes discloses a violation of, or noncompliance with, a state or federal statute or regulation. (In addition to "statute" and "regulation," the recently amended version of section 1102.5(b) adds a state or federal "rule." (Stats.2003, ch. 484, § 2.))

The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. (See Flait, supra, 3 Cal.App.4th at p. 476, 4 Cal.Rptr.2d 522; see also Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453, 116 Cal.Rptr.2d 602 (Akers); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69, 105 Cal.Rptr.2d 652.)

We are concerned here with the first element of a section 1102.5(b) retaliation claim, establishing a prima facie case of retaliation. To do that, a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two. (Akers, supra, 95 Cal.App.4th at p. 1453, 116 Cal.Rptr.2d 602.) Grant moved for summary judgment, contending that Patten could not establish any of these prima facie elements.

2. Protected Activity

We first consider the issue of whether Patten's disclosures regarding the P.E. teacher, the science teacher, the safety of the school, and the II/USP reassignment of expenditures, present a triable issue of material fact as constituting protected activities. We agree with the trial court that the teacher and safety disclosures do not amount to whistleblowing as a matter of law, but that the II/USP disclosures do present a triable issue of material fact of protected whistleblowing under section 1102.5(b).

The disclosures involving the two teachers do not amount to whistleblowing as a matter of law because, although the disclosures were made by a government employee (Patten) to a government agency (Grant), the disclosures indisputably encompassed only the context of internal personnel matters involving a supervisor and her employee, rather than the disclosure of a legal violation. (Cf. Colores, supra, 105...