Weinstein v. City of Oakland
| Decision Date | 09 December 2021 |
| Docket Number | A161268 |
| Parties | MARLENE G. WEINSTEIN, as Trustee, etc., Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG17850153
James M. Gantt[1] filed a lawsuit against his former employer, City of Oakland (the City). Gantt alleged the Oakland Police Department (OPD) retaliated against him for whistleblowing in violation of Labor Code section 1102.5 (further undesignated statutory references are to the Labor Code) and the Fair Employment and Housing Act (Gov. Code § 12900 et seq. (FEHA)). The trial court granted the City's motion for summary judgment, concluding several of Gantt's claims were time-barred and his remaining claims were legally insufficient. It also denied Gantt's motion for a new trial and entered judgment for the City.
We affirm.
BACKGROUND[2]
Gantt joined the OPD in 1988 and became a homicide detective in 2009. In January 2014, Lieutenant A. became the head of the homicide division. Lieutenant A. and Gantt had a contentious relationship. For example, Lieutenant A. removed Gantt from an investigation into a June 2014 shooting death of an OPD officer's wife after Gantt expressed suspicions that the officer had killed his wife.[3] After he was removed from the investigation, Gantt asserted Lieutenant A. regularly pressured him to quickly finish his work; asked Gantt to arrive at work and meetings on time; and refused to authorize overtime. Gantt also alleged that, in late July 2014, junior officers improperly accessed his electronic personnel file to view a "corrective counseling" note written by Lieutenant A. Gantt believed the alleged improper viewing of his personnel file was related to Lieutenant A.'s efforts to embarrass him in the homicide unit.
Meanwhile, in May 2014, Gantt's friend, Lieutenant B., sent a racist image via text message to Gantt and a group of officers. Gantt told Lieutenant B. the image offended him. In August 2014, Gantt requested a transfer from the homicide division. After Lieutenant B. learned of the transfer, he sent the same group various text messages about Gantt's age.
In December 2014, Gantt filed an IAD complaint claiming Lieutenant A. created a hostile work environment by publicly disparaging him. The following month, Gantt filed another IAD complaint asserting Lieutenant B.'s August 2014 text messages constituted harassment of, and discrimination against, Gantt because of his age.
A year later, in January 2016, Gantt received a supervisory note - a non-disciplinary action documenting a conversation between supervisor and officer - due to Gantt's failure to respond to roster requests for an operation headed by Lieutenant A. Based on this note, Gantt's then-supervisor filed an IAD complaint on Gantt's behalf. He alleged the supervisory note was issued in retaliation for Gantt's December 2014 complaint alleging Lieutenant A. created a hostile work environment. IAD concluded the allegations were unfounded.
In April 2016, Gantt notified IAD of Lieutenant B.'s May 2014 racist text messages. IAD opened a new investigation. During its investigation, IAD discovered that Gantt sent homophobic text messages to the same group. IAD ultimately concluded both Lieutenant B. and Gantt engaged in unprofessional conduct. OPD suspended both officers for five days without pay.
IAD also investigated several incidents related to Gantt's conduct. For example, in April 2016, Gantt and his wife had a domestic dispute during which Gantt brandished a firearm. After Gantt reported the incident to IAD, it opened an investigation. The next day, OPD placed Gantt on administrative leave.
In June 2016, while IAD was investigating Gantt's domestic dispute, a civilian lodged a complaint that Gantt mishandled evidence in a 2011 homicide investigation. This triggered an additional IAD investigation. The same month, Gantt's girlfriend announced on social media that she possessed homicide investigation materials. She also contacted Lieutenant B. and other OPD officers and expressed concern that Gantt would harm her. OPD dispatched officers to her apartment, and IAD opened yet another investigation into whether Gantt improperly disclosed evidence in multiple criminal investigations. Several days later, the City's mayor issued a press release announcing a district attorney investigation to determine whether an OPD officer engaged in criminal misconduct.
In October 2016, IAD concluded there was insufficient evidence Gantt engaged in domestic violence and exonerated him regarding the improper firearm use allegation. But the other investigations remained ongoing. OPD kept Gantt on administrative leave until February 21, 2017.
On November 1, 2016, while IAD investigations continued, Gantt presented the City with a Government Claims Act claim (Gov. Code, § 910) alleging retaliation. He alleged OPD retaliated against him for making complaints about the 2014 homicide investigation and harassing conduct of other officers; the City rejected the claim. Gantt also filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) on February 7, 2017, alleging retaliation, among other things. He obtained a right to sue letter the same day.
On February 21, 2017, Gantt sued the City, asserting whistleblower and retaliation claims under the Labor Code and FEHA, and seeking damages and injunctive relief. Several months later, Gantt retired earlier than expected, citing anxiety attributable to working at OPD.
The City moved for summary judgment, which trial court granted. It concluded Gantt's whistleblower retaliation claims based on conduct occurring before May 1, 2016 - six months before Gantt filed his government claim - were time-barred. (Gov. Code, § 911.2, subd. (a).) Similarly, it found his FEHA causes of action based on conduct occurring before February 7, 2016, were untimely. As for Gantt's section 1102.5 and FEHA claims, the court determined Gantt either failed to establish a prima facie case of retaliation or that the undisputed evidence established a legitimate, nonretaliatory explanation for the adverse employment actions.
Gantt moved for a new trial, which the court denied. The court entered judgment for the City.
FEHA protects "the rights of all persons to seek, obtain, and hold employment without discrimination" on account of race, among other things. (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 420.) Relevant here, it prohibits an employer from "discharg[ing], expel[ling], or otherwise discriminat[ing] against any person because the person has opposed any practices forbidden under [FEHA]," a protected activity. (Gov. Code, § 12940, subd. (h).) Section 1102.5 similarly prohibits an employer from retaliating against employees for engaging in protected activity, defined as disclosing to a government or law enforcement agency information reasonably believed to be "a violation of state or federal statute, or violation of noncompliance with a local, state or federal rule of regulation." (§ 1102.5, subd. (b).)
To establish a prima facie case of retaliation under either statute, plaintiffs must demonstrate (1) they were engaged in protected activity; (2) the employer subjected them to an adverse employment action - an action that materially affects the terms, conditions, or privileges of employment (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (Yanowitz); and (3) there is a causal link between the protected activity and the adverse employment action. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1125; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384 (Patten).)
Gantt asserts he engaged in protected activity by disclosing what he reasonably believed were violations of the law. According to Gantt, complaints regarding the following conduct were protected activities: OPD's handling of the 2014 homicide investigation; Lieutenant A.'s management; junior officers' improper access to personnel information; and Lieutenant B.'s improper text messages. He also identifies his submission of a DFEH complaint and Government Claims Act claim as protected activities.
Gantt argues OPD subjected him to several adverse employment actions as a result of his protected activity, including: his 2014 removal from a homicide investigation; OPD's 2015 failure to investigate racist text messages; his January 2016 supervisory note; OPD investigating his text messages and the resulting suspension; the June 2016 investigation of his disclosure of homicide materials; the press release issued by the City's mayor regarding this investigation; and his ten-month administrative leave.[4] These facts, Gantt argues, permit an inference that OPD retaliated against him for engaging in protected activity.
But alleging protected activities, adverse employment actions and a causal link merely shifts the burden to the employer to "provide a legitimate, nonretaliatory explanation for its acts." (Patten, supra, 134 Cal.App.4th at p. 1384; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 (Flait).) That is, an employer must "demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5." (§ 1102.6.) For FEHA claims, in contrast, an employer must demonstrate a legitimate, nondiscriminatory reason for making an employment decision by a preponderance of the evidence. (...
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