Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC311284, Joanne O’Donnell, Judge.
Law Office of Rochelle Evans Jackson, Rochelle Evans Jackson and Melinda G. Wilson for Plaintiff and Appellant Robert Chavez.
Jackson Lewis, Edward P. Zappia and Jared L. Bryan for Defendants and Respondents City of Los Angeles, Los Angeles Police Department, Shirley St. Peter and Thomas Brennan.
PERLUSS, P. J.
Robert Chavez appeals from the judgment entered after the trial court granted the City of Los Angeles’s motion for summary adjudication of his claims for disability discrimination, retaliation and harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and later granted a motion for summary judgment, resolving the remaining claims against the City and Dr. Shirley St. Peter, an occupational psychologist in the City’s Medical Services Division. Chavez contends triable issues of material fact exist as to each of his FEHA claims as well as his common law claim for intentional infliction of emotional distress. We affirm the judgment as to St. Peter, but reverse as to the City because triable issues of material fact exist in connection with Chavez’s retaliation claim.
Statutory references are to the Government Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Chavez’s Employment as a Police Officer and His History of Complaints
Chavez began his employment as a police officer with the Los Angeles Police Department (LAPD) in 1989 and, by all accounts, performed well in his job. However, in 1996 he was investigated by LAPD’s internal affairs department for allegedly cashing stolen checks. His home and locker at work were searched and later the contents of the search warrant, including his name and address, were leaked to the media. Chavez maintained the theft accusation was false and had been made in retaliation for his reports several years earlier (in 1990) of the use of excessive force by some of his fellow officers in the Rampart Division of LAPD.
In 1998, after he had been exonerated of the theft charge, Chavez sued the City and LAPD for defamation, invasion of privacy and violation of his civil rights (the first lawsuit). This lawsuit was apparently dismissed on procedural grounds.
According to Chavez, even after he had been cleared of the theft accusation, LAPD kept him under surveillance. He also complained LAPD was using its helicopters to fly over his house in an intimidating fashion, conduct referred to by LAPD as “buzzing a home.” Chavez’s complaints went unheeded, and his requests to transfer to other divisions of LAPD were delayed or denied.
2. Chavez’s Leaves of Absence
In April 1999 Chavez took a leave of absence from his employment citing stress-related reasons. His treating psychiatrist, Dr. Thomas Curtis, diagnosed Chavez with “depressive disorder not otherwise specified” and anxiety. Chavez returned to work on March 10, 2000 after Dr. Curtis released him for duty without work restrictions. Upon his return Chavez believed he was being treated differently and denied employment opportunities, including the opportunity to work overtime, because his superiors perceived he had a mental disability. In March 2000 he filed an administrative claim with the Department of Fair Employment and Housing (DFEH) and on May 12, 2000 a civil suit in the Los Angeles Superior Court (case No. BC229922), alleging discrimination based on perceived disability, retaliation, trespass and violation of his federal civil rights (42 USC § 1983) (the second lawsuit).
Chavez’s second lawsuit was removed by the City to the United States District Court, which granted summary judgment in the City’s favor in 2001 on the federal civil rights claim and the FEHA claims. The Ninth Circuit reversed the judgment in an unpublished memorandum of decision (see Chavez v. City of Los Angeles (9th Cir. Sept. 30, 2004, No. 02-56789) [nonpub. opn.]) and remanded the case to the district court, which then elected to dismiss the state law claims without prejudice so they could be refiled in a state court action. Chavez filed a new lawsuit in the Los Angeles Superior Court on November 2004 as case number BC324514 and ultimately obtained (in October 2005) a jury verdict of $11,500 on his claim the City had retaliated against him and denied him overtime pay. (The jury rejected Chavez’s claim alleging discrimination based on perceived disability.)
In April 2001 Chavez took a second leave of absence citing “emotional stress” and was again diagnosed by Dr. Curtis with depression not otherwise specified and anxiety. This time Chavez remained on leave for nearly two years. During that time, Chavez gave an interview to a reporter in which he claimed LAPD had been harassing him for exposing corruption.
3. Chavez’s Return to Work Following His Second Leave of Absence
In March 2003 Dr. Curtis reported Chavez was fit to return to work without restrictions. Chavez submitted Curtis’s medical note to his supervisor and returned to his duties at the front desk. In May 2003, a few weeks after his return to work, Chavez was ordered by his supervising captain to report to the Behavioral Sciences Services Section (BSS) -- a psychological services unit of LAPD staffed by professional psychologists specializing in law-enforcement-related situations -- to determine whether he was psychologically fit to return to duty. Dr. Yvette Monteiro, a BSS psychologist, interviewed Chavez on May 8, 2003. According to Monteiro’s handwritten notes prepared in connection with the interview, Monteiro found “no significant psychological issue which interfered with [Chavez’s] ability to work.” However, Monteiro referred Chavez to the City Personnel Department, Occupational Health Services Division (OHSD), now known as the Medical Services Division (MSD), “for further assessment” and a comprehensive fitness-for-duty evaluation pursuant to “dep[artment] policy.”
At MSD Chavez submitted to a “fitness for duty” evaluation by Dr. St. Peter. After the interview on July 2, 2003 St. Peter concluded Chavez was suffering from a “delusional disorder,” manifested by his belief LAPD was spying on him and conspiring against him. Pursuant to St. Peter’s recommendation, Chavez was placed on at-home, inactive status with pay pending further evaluation. In the meantime, St. Peter conducted additional interviews with LAPD’s Assistant Chief of Police Sharon Papa and her assistant, Sergeant Darryl Ito, to determine whether any investigation had been made into Chavez’s complaints of harassment, including his allegations that LAPD helicopters had “buzzed” his home. St. Peter was told Chavez had sued “many people” and was a chronic complainer. Ito informed St. Peter that Chavez’s allegations that helicopters had “buzzed his home” had been investigated by the air support division of LAPD and deemed unfounded, although Chavez formally protested that conclusion.
4. Chavez’s Administrative Complaints and Imposition of Permanent Work Restrictions
On July 22, 2003, after he was placed on inactive duty, Chavez filed a DFEH administrative claim alleging discrimination based on perceived mental disability and retaliation. He received a right to sue letter on August 15, 2003. Two weeks later, on August 28, 2003, Dr. Monteiro prepared a typewritten addendum to her May 8, 2003 handwritten notes prepared in connection with her evaluation of Chavez. The addendum states Chavez “presented with paranoid delusional thinking as the stories he depicted regarding helicopters flying over his house and the police attempting to run his son over appeared to be unbelievable and not based in reality.” Explaining the reason for not immediately removing Chavez from active duty, the addendum continues, “[B]ecause the purpose of this evaluation was not to ascertain the veracity of his statements it was not my intention to make a definitive diagnosis” but rather to refer Chavez to MSD for a fitness-for-duty evaluation. “At the time of the evaluation, [Chavez] did not present as a danger to himself or others. Furthermore, according to his commanding officers, [Chavez] appeared to be doing fine at the front desk with no apparent causes for concern. Hence at that time he did not appear to be a serious harm to himself and to others, nor did there appear to be any immediate danger which may have necessitated his immediate removal from his current assignment of working at the front desk.”
Chavez denies that he told anyone LAPD had attempted to run over his child.
In September 2003 Dr. St. Peter conducted a follow-up interview with Chavez. After that interview St. Peter concluded Chavez should remain on restricted duty (at his home, with pay), noting he was to be examined by an agreed medical examiner (AME) in connection with his pending workers’ compensation case. St. Peter also recommended that Chavez’s weapon temporarily be confiscated in accordance with LAPD policy requiring any officer deemed to be suffering from a psychological impairment to turn over his or her weapon until cleared by LAPD as psychologically fit for duty.
On February 13, 2004 Dr. Samuel Miles, the AME psychiatrist, issued his report and diagnosed Chavez with depression not otherwise specified. Miles observed he could not determine the truth of Chavez’s complaints LAPD was spying on him and “buzzing” his home with its helicopters, noting, “to the extent that these events did not occur, his perceptions are understandable as manifestations of his depression, not otherwise specified, with contributions from his narcissistic and paranoid personality traits, and possibly his alcohol use during that time.” Dr. Miles concluded Chavez’s injury was work-related, further vocational rehabilitation was unnecessary and Chavez was “psychiatrically fit” to return to his duties as a police officer without restriction.
5. Chavez’s Permanent Change in Employment Status
Following the AME’s report, Chavez continued to remain at home on inactive status with pay despite his multiple requests to return to work. In September 2004 Dr. St. Peter finalized her fitness-for-duty evaluation of Chavez and determined he was unfit to return to duty as a police officer. Concluding Chavez is “prone to paranoid delusional ideation” manifested in his tendency to systematically perceive information “in a manner that he interprets as uniquely relevant and threatening,” Dr. St. Peter imposed permanent work restrictions on Chavez, including that he not be assigned to any position requiring the exercise of “sound personal judgment,” “clear or flexible thinking” or the carrying of a weapon.
After engaging in the interactive process and conducting an accommodation analysis, LAPD informed Chavez it could not accommodate the work restrictions imposed by Dr. St. Peter. In July 2005 Chavez filed another administrative claim with the DFEH alleging discrimination, harassment and retaliation against St. Peter. On November 9, 2005 the City notified Chavez that, effective January 2006, he would no longer receive his full salary and benefits, but would be entitled to use his accrued sick and vacation leave.
6. Chavez’s First Amended Complaint in the Pending Action
Chavez initially filed the current action (the third lawsuit) against the City on February 27, 2004, alleging discrimination and retaliation in violation of FEHA, intentional infliction of emotional distress and violation of his federal civil rights (42 U.S.C. § 1983). On April 16, 2004 the City successfully removed the matter to the United States District Court, which, on August 2, 2005, granted partial summary judgment in favor of the City on the federal civil rights claim. The federal court declined to exercise jurisdiction over the remaining state law claims and remanded those claims to the Los Angeles Superior Court.
In the operative first amended complaint filed on March 20, 2006 in the superior court Chavez alleged three causes of action under FEHA -- discrimination based on perceived disability (against the City), retaliation (against the City and St. Peter) and harassment (against the City) -- and common law claims for intentional infliction of emotional distress (against St. Peter), wrongful discharge in violation of public policy (against the City) and breach of the implied covenant of good faith and fair dealing (against the City). As to the retaliation claim, Chavez alleged that, after filing his administrative claims with the DFEH in July 2003 and July 2005, his two-week removal “turned into seven months of quarantine to his home” and ultimately into the imposition of unreasonable and uncalled for permanent work restrictions that prevented his return to active duty. He also alleged the adverse employment action was payback for having filed a lawsuit under FEHA, then pending at the time of St. Peter’s diagnosis.
As to the discrimination and harassment claims, pleaded as one cause of action, Chavez alleged that, when he returned from his second leave of absence in March 2003, LAPD wrongfully subjected him to excessive fitness-for-duty evaluations, falsely labeled him “delusional” and wrongfully terminated his ability to work as a peace officer by employing work restrictions it knew would result in his permanent removal from LAPD.
7. The Summary Adjudication/ Summary Judgment Motions
On January 12, 2006 the City moved for summary adjudication as to each of the FEHA claims. The trial court granted the motion on June 27, 2006. As to the discrimination claim, the court ruled requiring Chavez to undergo a mental examination to determine his fitness for duty was not sufficient to show the employer perceived the employee as disabled. In addition, the court found Chavez was still employed and thus had not suffered an adverse employment action and, in any event, the City had proffered a legitimate business reason for its decision and Chavez had raised no triable issues of fact as to whether those reasons were pretext for discrimination.
The motion, styled as one for summary judgment or, in the alternative, summary adjudication, was filed prior to Chavez’s amendment of his complaint to add the common law causes of action and, accordingly, challenged only his FEHA claims.
The trial court found the retaliation claim without merit because Chavez could not show a causal link between the adverse employment action and his filing of his administrative claims with the DFEH. Finally, the court ruled the harassment claim was without merit because Chavez had admitted in his deposition his claims were rooted in discrimination and retaliation, not harassment, and, in any event, could not show severe or pervasive harassment based on a perceived disability.
On July 21, 2006 the City and St. Peter moved for summary judgment, or in the alternative, summary adjudication on the remaining claims. On September 27, 2006 Chavez voluntarily dismissed his wrongful termination claim without prejudice and, on the same date, filed his opposition to the motion for summary judgment. On October 11, 2006 the court granted the City and St. Peter’s motion for summary judgment in its entirety. On November 22, 2006 the court entered judgment for the City and St. Peter in the action.
Chavez’s first amended complaint also purported to state a cause of action for intentional infliction of emotional distress against Thom Brennan, LAPD’s personnel director and commanding officer of the personnel division. Brennan joined in the City and St. Peter’s motion for summary judgment, but Chavez dismissed with prejudice his claim against Brennan prior to the trial court’s ruling on the motion. Chavez does not attempt to resuscitate that claim on appeal.
Although it had already been dismissed by Chavez without prejudice, the court granted summary adjudication on the wrongful termination cause of action because Chavez was still employed by LAPD. The court additionally ruled a public employee who holds his or her employment by statute, not contract, could not maintain a claim for breach of contract or breach of the implied covenant of good faith and fair dealing. Finally, as to St. Peter the court found she was immune under section 820.2 (discretionary acts of a public employee) and/or section 855.8 (diagnosing or failing to diagnose or prescribe for mental illness or addiction): “Plaintiff’s claims of retaliation and IIED [intentional infliction of emotional distress] against [St.] Peter arise from her medical diagnosis and she is immune from civil liability stemming from that diagnosis.”
After briefing and a hearing on November 28, 2006, the trial court entered an order awarding the City its costs, including $80,000 in attorney fees under Code of Civil Procedure section 1038, finding that Chavez had unreasonably “plead[ed] and doggedly prosecute[d] multiple legally and factually untenable claims against multiple defendants and then voluntarily dismiss[ed] most of them at the last minute.”
DISCUSSION
1. Standard of Review
We review an order granting summary judgment or summary adjudication de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 344 (Guz); Code Civ. Proc., § 437c, subds. (c), (p)(2).) We view the evidence in the light most favorable to the opposing party, liberally construing the opposing party’s evidence and strictly scrutinizing the moving party’s. (O’Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.) “‘Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors.’” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)
When a defendant moves for summary judgment or summary adjudication in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. Alternatively, the defendant may present evidence to “show[ ] that one or more elements of the cause of action . . . cannot be established” by the plaintiff. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) “[T]he defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) Once the defendant’s initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action or defense. (Code Civ. Proc., § 437, subd. (p)(2); Aguilar,at p. 849.)
2. The Trial Court Did Not Err in Granting Summary Adjudication for the City on Chavez’s Discrimination Claim Based on Perceived Disability
a. Governing law
The California Fair Employment Practice Act (former Lab. Code, § 1410 et seq.) enacted in 1959 and recodified and included in FEHA in 1980 (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) established that freedom from discrimination in employment on specific grounds, including disability, is a civil right and that such discrimination violates public policy. (See Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 44; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379.) In 1992 the Legislature amended FEHA to incorporate as part of state law the protections adopted by Congress in the federal Americans with Disabilities Act (ADA) and in 2000, made clear that “[t]he law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990. [Citation.] Although the federal act provides a floor of protection, this state’s law has always, even prior to the passage of the federal act, afforded additional protections.” (§ 12926.1, subd. (a); see Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1221-1222 & fn. 3.)
The Legislature declared its intent “to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990.” (Stats. 1992, ch. 913, § 1, p. 4282.)
As currently written FEHA prohibits as an unlawful employment practice, unless based upon a bona fide occupational qualification, discrimination against an employee because of the employee’s physical or mental disability (§ 12940, subd. (a)), except when the employee’s disability renders the employee “unable to perform his or her essential duties even with reasonable accommodations . . . .” (§ 12940, subd. (a)(1); see City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160.) As defined in FEHA, a person is mentally disabled if he or she has an actual “mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity” (§ 12926, subd. (i)(1)), or if he or she is perceived as having a physical or mental impairment that is disabling, potentially disabling or perceived as disabling or potentially disabling. (§§12926.1, subd. (b) [“[i]t is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling”]; 12926, subd. (i)(C)(4) [mental disability includes “[b]eing regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult”].)
Discriminatory intent is an essential element of a FEHA action alleging disparate treatment based on disability, whether actual or perceived. (See Green v. State of California (2007) 42 Cal.4th 254, 262 (Green).) Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (McDonnell Douglas) for trying discrimination claims based on a theory of disparate treatment when direct evidence of discriminatory intent is absent. (See Guz, supra, 24 Cal.4th at pp. 354-355.) Under this three-part analysis, the initial burden is on the plaintiff to establish a prima facie case of discrimination. (Id. at p. 354.) In the context of disability discrimination, this is accomplished by providing evidence that he or she (1) suffered from a disability or was regarded as suffering from a disability, (2) could perform the essential duties of the job with or without reasonable accommodations and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 (Brundage), cited with approval in Green, at p. 261 [plaintiff bears burden as part of prima facie case to show he or she could perform essential duties with or without accommodation]; but see Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 51 [when claim is solely for perceived discrimination, the plaintiff need only establish he or she was regarded or treated as disabled and employer’s mistaken perception was a substantial factor in the adverse employment decision].)
If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. “[T]he burden then shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise [] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] . . . The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Guz, supra, 24 Cal.4th at pp. 355-356.)
When moving for summary judgment on a FEHA cause of action, an employer can negate the element of discriminatory intent and shift the burden to the plaintiff by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action. (Guz, supra, 24 Cal.4th at pp. 356-357; Brundage, supra, 57 Cal.App.4th at p. 236; see Code Civ. Proc., § 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing “one or more elements of [plaintiff’s] cause of action, even if not separately pleaded, cannot be established, or [by establishing] a complete defense to that cause of action”].) Once the employer sets forth a nondiscriminatory reason for the decision, the burden shifts to the plaintiff to produce “‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; see Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156.) “[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.” (Guz at p. 361.)
When direct evidence of discriminatory intent is present, the McDonnell Douglas burden-shifting analysis does not apply. (See TransWorld Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [105 S.Ct. 613, 83 L.Ed.2d 523] [“the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination”]; Swierkiewicz v. Sorema N.A. (2002) 534 U.S. 506, 511 [122 S.Ct. 992, 152 L.Ed.2d 1] [same]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 [same]; see also Green, supra, 42 Cal.4that p. 275 (dis. opn. of Werdegar, J.) [McDonnell Douglas test is vehicle used to “‘assure that the “plaintiff [has] his day in court despite the unavailability of direct evidence.”’ [Citation.] It does not define the elements of the cause of action and ‘does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case.’”].)
b. Chavez’s Discrimination Claim Fails in Light of his Concession that His Disability, Either Actual or Perceived, Played No Role in the City’s Employment Actions
The City told Chavez it was imposing significant work restrictions and placing him on inactive status -- the adverse employment actions -- due to his mental disability. Thus, from a conventional viewpoint Chavez’s complaint would seem to raise a straightforward issue: Was LAPD’s decision to impose permanent work restrictions based on its perception Chavez suffered from a mental disability legally justified? (See Trans World Airlines, Inc. v. Thurston, supra,469 U.S. at p. 121; Morgan v. Regents of University of California, supra,88 Cal.App.4th at pp. 67-68 [when direct evidence of discrimination is present and undisputed, no burden-shifting analysis is required; question is simply whether discriminatory action was legally justified].) Rather than pursue this simple claim, however, Chavez turns the typical FEHA analysis on its head by insisting the City’s explanation for his removal from active duty was itself a pretext -- that is, the City never really perceived him as disabled and actually wanted to force him from LAPD because he was a “chronic complainer” and a “problem employee”; for those reasons, according to Chavez, the City engaged in a ruse to get rid of him by falsely labelling him as paranoid and delusional.
Chavez asserts the City’s purportedly pretextual conduct supports a disability discrimination claim because, whether it actually perceived him to be disabled or not, the City in fact “treated him” as though he were. (See e.g., § 12926, subd. (i)(4) [mental disability includes “[b]eing regarded or treated by the employer” as having a disability], italics added.) Such an expansive interpretation of FEHA, even if correct, would only establish the first element of a discrimination cause of action, namely, that the City treated Chavez as disabled. (See Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 50.) Chavez still must also demonstrate a causal relationship between the adverse employment action and the alleged perceived disability. (See Green, supra, 42 Cal.4th at pp. 262-263 [“By its terms, section 12940 makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability . . . .”]; Guz, supra, 24 Cal.4th at p. 335 [to establish FEHA claim, it must be shown plaintiff’s status as a member of a protected class under FEHA was a motivating reason for the adverse action].) Chavez’s discrimination claim fails at this point: Having insisted the City knew he was not mentally ill and its actions were a ruse to get rid of a “chronic complainer,” not an employee who was disabled or even regarded as disabled, Chavez necessarily concedes that disability, either actual or perceived, played no role in the City’s employment decision.
The City and Chavez dispute whether it was LAPD policy to send all persons returning from an extended leave of absence to both BSS and MSD for a fitness-for-duty evaluation. Chavez contends it is not LAPD policy and suggests he was sent to MSD as part of a plan to remove him from active duty. This factual dispute is immaterial because Chavez’s claim is that he was “set up” by LAPD for reasons other than those involving a perceived disability.
Chavez’s citation to evidence to establish the City’s proffered reason for his removal -- that it believed him delusional -- was untrue does not raise a triable issue of material fact as to whether the adverse employment decision was itself the result of intentional discrimination. Simply stated, it is not enough to show pretext; the plaintiff must show the proffered reason was pretext for discrimination. (See Guz, supra, 24 Cal.4th at p. 361 [“[t]he pertinent statutes do not prohibit lying, they prohibit discrimination”]; see also St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 514 [113 S.Ct. 2742, 125 L.Ed.2d 407] [“nothing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable”].) Although “[p]roof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons,” there must be evidence supporting “a rational inference that the intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, at p. 361.) Here, Chavez concedes the real reason for the adverse employment action is not discrimination based on a protected disability. Whatever claim Chavez may have in connection with his employer’s allegedly false reasons for placing him on inactive status, this failure of causation is fatal to his FEHA discrimination claim based on perceived disability.
Chavez has filed a new lawsuit (case No. BS113503), apparently alleging due process violations and violation of the Public Safety Officers Procedural Bill of Rights Act (§ 3304 et seq.).
In his first amended complaint Chavez also asserted a claim for harassment based on his perceived disability in violation of FEHA. Although Chavez asserts the trial court improperly granted summary adjudication of that claim, he provides no argument on appeal and cites to no evidence in his appellate briefs to support that assertion. Accordingly, this issue has been forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief must “[s]tate each point under a separate heading or subheading summarizing the point and support each point by argument and, if possible, by citation of authority”]; People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’”]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 456, fn. 1 [appellate court’s review limited to issues that have been adequately raised and supported in appellant’s brief].)
3. The Trial Court Erred in Granting Summary Adjudication for the City on the Retaliation Claim
a. Governing law
Section 12940, subdivision (h), makes it an unlawful employment practice “[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” As in discrimination cases alleged under FEHA, California employs the three-stage burden-shifting test articulated in McDonnell Douglas, supra, 411 U.S. 792 for trying retaliation claims absent direct evidence of retaliatory intent. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1041-1042 (Yanowitz.) That is, a plaintiff establishes a prima face case for retaliation by showing he or she engaged in a protected activity; the employee suffered an adverse employment action; and a causal link exists between the protected activity and the employer’s action. (Id. at p. 1042.) At trial, once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse action. If the employer produces a legitimate reason for the adverse employment action, “the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee” to prove intentional retaliation. (Ibid.)
b. Chavez raised a triable issue of fact that his removal from active duty was the result of his exercise of his rights under FEHA
In its motion for summary adjudication directed to the retaliation claim, the City argued, and the trial court agreed, Chavez could not demonstrate his July 22, 2003 filing of an administrative complaint with the DFEH against the City or his July 2005 filing of an administrative complaint against St. Peter caused his permanent removal from active duty. As the City observes, Dr. St. Peter met with Chavez and made the diagnosis that ultimately triggered his removal from active duty on July 3, 2003, nearly three weeks before Chavez filed his July 22, 2003 DFEH claim. The timing of these events does not raise an inference of retaliation. (Cf. California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023 [termination immediately following employee’s engagement in protective conduct may raise inference termination was illegal result of protected conduct]; Kelly v. Stamps. com Inc. (2005) 135 Cal.App.4th 1088, 1100 [evidence plaintiff was discharged within a day of complaining about possible pregnancy discrimination permitted inference discharge was discriminatorily based].)
Chavez’s retaliation claim, however, was not based solely on the 2003 and 2005 administrative claims. He also asserted the prosecution of his 2000 federal civil rights and FEHA lawsuit -- the second lawsuit, which was pending at the time St. Peter made the diagnosis that ultimately led to Chavez’s removal from active duty -- was a motivating factor in the City’s decision. Chavez testified, during his fitness-for-duty interview with St. Peter, her sole concern, as evidenced by her questions to him, was Chavez’s pending FEHA lawsuit. Before finalizing her diagnosis, St. Peter also consulted with Ito, who told her Chavez was a “chronic complainer” who filed many lawsuits.
Moreover, Chavez presented evidence his initial evaluator, Dr. Monteiro, had determined in May 2003 he did not exhibit delusional thinking, but altered her opinion via an addendum to her handwritten notes in August 2003 (without again meeting with Chavez), a short time after Chavez had filed his July 2003 administrative claim. Dr. Kris Mohandie, a police and forensic psychologist and former employee of LAPD’s BSS division, testified that Monteiro’s addendum was suspect: If Monteiro really believed Chavez suffered from delusional thinking, she would have, in accordance with the standard of care applicable to occupational psychologists, articulated those concerns in her May 2003 notes and not waited until August 2003 to amend her notes. Dr. Curtis, Chavez’s treating psychiatrist, concurred with Mohandie’s opinion and testified Chavez was plainly not delusional. Daniel Rybicki, a psychologist who administered the Rorschach test to Chavez in 2003 and summarized his findings to St. Peter, recommended to St. Peter that, in light of Chavez’s expressed concerns about LAPD’s retaliatory conduct, he repeat the test for the sake of reliability, but St. Peter dismissed those concerns and never repeated the test. In addition, despite St. Peter’s initial diagnosis in July 2003, LAPD waited several months, until September 18, 2003, to confiscate his weapon despite LAPD policy requiring such confiscation when an officer is mentally impaired, suggesting the diagnosis of mental impairment was simply a pretext for unlawful retaliation.
The City insists Chavez admitted in his deposition the City’s decision was the product of disability discrimination, not retaliation for his prior lawsuits. We give little credence to Chavez’s testimony on what amounts to a legal conclusion. In any event, elsewhere in his deposition Chavez testified the gravamen of his claim is his removal from active duty as a direct result of the filing of his DFEH claim in 2003 and his prior, but then-pending, FEHA lawsuit.
To be sure, the City presented its own evidence, largely in the form of Dr. St. Peter’s and Dr. Monteiro’s testimony, that Chavez suffered from delusional thinking or, at the very least, that it held a good faith belief that its evaluation of Chavez was true, which obligated it to err on the side of protecting the public from a mentally impaired officer. (See Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1195 [employer’s decision may be “‘“wrong, mistaken, or unwise”’” but it does not necessarily follow its reason was pretext for unlawful discrimination or retaliation]; Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 75 [same].) Nonetheless, in response to a motion for summary adjudication, Chavez’s evidence was sufficient to permit a reasonable trier of fact to find, more likely than not, that St. Peter, on behalf of LAPD, manufactured her diagnosis with the intent to remove Chavez once and for all from LAPD for his continued exercise of his protected rights under FEHA. Accordingly, summary adjudication of the retaliation cause of action in favor of the City was error.
Although Chavez’s claim for retaliation against the City survives summary adjudication, his retaliation claim against St. Peter as an individual fails as a matter of law. (See Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174 [although an employer may be held liable for retaliation under FEHA, “nonemployer individuals are not personally liable for their role in the retaliation”].)
4. Chavez Has Forfeited Any Argument Challenging the Trial Court’s Ruling on His Claim Against St. Peter for Intentional Infliction of Emotional Distress
Chavez also asserts the court erred in summarily adjudicating in St. Peter’s favor his claim against her for intentional infliction of emotional distress. Although Chavez argues the claim was not preempted by the Workers’ Compensation laws, the court did not decide the issue on that basis; rather, the court ruled St. Peter, a city employee whose job was to provide the type of evaluation performed, was statutorily immune from this claim under section 820.2 (“[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused”]). Accordingly, as with his claim for harassment (see fn. 10, above), Chavez has forfeited his challenge to the court’s ruling in favor of St. Peter on the tort claim. (See Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995)10 Cal.4th 764, 793 [failure to furnish argument on a particular point may result in forfeiture on appeal]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 456, fn. 1.)
DISPOSITION
The judgment in favor of St. Peter is affirmed. The judgment in favor of the City is reversed, as is the November 28 2006 order awarding the City its costs. On remand the trial court is directed to vacate its June 27, 2006 order granting the City’s January 12, 2006 motion for summary adjudication on each of Chavez’s FEHA claims and enter a new and different order denying the motion with respect to Chavez’s retaliation claim and granting the motion with respect to Chavez’s FEHA claims for disability discrimination and harassment. The court is further directed to vacate its October 11, 2006 order granting summary judgment and enter a new order granting the City’s and St. Peter’s July 21, 2007 alternative motion for summary adjudication in connection with the remaining claims for wrongful termination, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. St. Peter is to recover her costs on appeal. Chavez and the City are each to bear his and its own costs on appeal.
We concur: WOODS, J., ZELON, J.
Chavez does not challenge in this appeal the trial court’s rulings on the claims for breach of the implied covenant of good faith and fair dealing or wrongful termination in violation of public policy.