Opinion
B317767
05-19-2023
MARTIN HERRERA, Plaintiff and Appellant, v. CITY OF BALDWIN PARK et al., Defendants and Respondents.
C. Athena Roussos; Law Offices of Pelayes &Yu, Tristan G. Pelayes, and Tom Yu for Plaintiff and Appellant Leal Trejo and Arturo N. Fierro for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV11521, Jon R. Takasugi, Judge. Affirmed.
C. Athena Roussos; Law Offices of Pelayes &Yu, Tristan G. Pelayes, and Tom Yu for Plaintiff and Appellant
Leal Trejo and Arturo N. Fierro for Defendants and Respondents.
CURREY, Acting P. J.
INTRODUCTION
Martin Herrera sued his employer, the City of Baldwin Park (the City), and his supervisor, Andrew Velebil, alleging that during Herrera's career as a police officer, Velebil sexually harassed him, and the City retaliated against him when he complained about the harassment, in violation of the Fair Employment and Housing Act (FEHA). (Government Code § 12900 et seq.). The trial court granted summary judgment in favor of the City and Velebil. It held Herrera's claim for sexual harassment is time-barred under the then-applicable one-year statute of limitations, and his claim for retaliation fails as a matter of law. For the reasons discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Herrera began working as a police officer for the City in 2014. Beginning in July 2016 and continuing through September 2016, some of Velebil's actions made Herrera feel "extremely uncomfortable" at work. For example, according to Herrara, on several occasions, while Herrera changed his clothes in the employee locker room, Velebil would approach Herrera and initiate unsolicited conversations with Herrera while he was naked. During these conversations, Velebil, who is openly gay, would "intensely look" at Herrera's body. Velebil also routinely parked his car next to Herrera's car in the employee parking lot, which appeared to Herrera to be intentional because there were several other open spots available. Every time he left the locker room to go to the employee parking lot, Herrera noticed Velebil walking closely behind him and looking at his buttocks and smiling. At times, "[Velebil] would get so close to [Herrera] that, . . . [Herrera] knew [Velebil] wanted to make a move and . . . would almost try to kiss [Herrera] ...."
In September 2016, Herrera was promoted to K-9 Officer and left the police department for about two months to attend training. After Herrera completed the training, he began working weekend graveyard shifts with the newly trained police dog. Herrera did not encounter Velebil in the locker room anymore because he changed into his police uniform at home.
Herrera had no further issues with Velebil after September 2016 until an incident that occurred eight months later, on May 12, 2017 (the May 12 incident). Herrera was on duty and drove his patrol vehicle to get gas at the city yard. When he arrived at the fuel pumps, he saw Velebil fueling another vehicle. After Velebil finished, he approached Herrera and asked him personal questions unrelated to work. At one point, Velebil asked Herrera, "What do you do on your days off?" Herrera provided "a generic answer." Velebil then asked, "Do you want to have a drink with me?" Herrera responded with an excuse for why he was unavailable, and walked away quickly.
Herrera reported neither the May 12 incident nor the incidents that allegedly occurred between July and September of 2016. Instead, Herrera avoided one-on-one contact with Velebil between May and November of 2017.
On November 25, 2017, around 9:00 p.m., Herrera responded to a backup request by Velebil at a traffic stop (the November 25 incident). Herrera saw Velebil's patrol vehicle, but there was no other vehicle present. After Herrera got out of his patrol vehicle, Velebil began to physically advance toward Herrera in an intimidating manner, as if Velebil was going to physically assault him. Velebil used his entire body to pin Herrera against Herrera's own vehicle, while cursing and berating him. Velebil screamed at Herrera for purportedly being derelict in his duties.
The next day, on November 26, 2017, Herrera submitted a written complaint to the then-police chief, Michael Taylor, about Velebil's "workplace bullying, harassment and violence toward [him]." Herrera claimed Velebil "has been discourteous, disrespectful and unprofessional to [him] on several occasions." The letter went on to describe the November 25 incident in detail, as well as other incidents in which Velebil accused Herrera of not properly performing his duties, "belittled and ridiculed" him, and "yelled at [him.]" The complaint neither mentioned any of the alleged incidents from June through September of 2016, nor did it allege sexual harassment of any kind or harassment based on Herrera's gender or sexual orientation.
Herrera never submitted a written complaint to the City regarding alleged sexual harassment. In early January 2018, however, he told Sergeant Joe Meister that he "did not welcome [ ] Velebil's sexual advances and [ ] Velebil's forceful encounter . . . [during] the November 25, 2017 traffic stop." In response, Meister informed Herrera that an official internal investigation was initiated by the then-captain, Doug Parnell.
Later that month, Sergeant Jorge Huerta informed Herrera that some of the supervisors and managers were aware Herrera complained to Meister that Velebil was sexually harassing him. Huerta then provided Herrera with an email Huerta sent to his then-supervisor Lieutenant Mark Adams on January 22, 2018. The email informed Adams that Herrera told Meister that after Herrera turned Velebil down for a date, Velebil "starting harassing him." The email concluded: "[I]f what [Meister] told me is alleged or possibly going on, we need to immediately separate [Velebil and Herrera] until the internal investigation is resolved." Adams responded to Huerta that he would speak with Meister the following day after the staff meeting.
The City retained Kaufman Law Firm, APC (Kaufman) to investigate Herrera's November 26, 2017 written complaint. Kaufman interviewed Herrera in March 2018. At no point during the four-hour interview did Herrera allege sexual harassment against Velebil, nor did he allege any harassment by Velebil based on his gender as a male, or based on his sexual orientation. In response to Kaufman's question regarding whether he believed he was being harassed by Velebil because he is a member of a "protected class," Herrera answered "no." Kaufman interviewed five witnesses total, which included Herrera and Velebil.
On February 20, 2019, Herrera provided a new statement regarding related allegations of misconduct to the Human Resources department. The City retained Rick Farfan of Fernando Jimenez and Associates to investigate the allegations. Farfan interviewed 15 witnesses, including Herrera.
It is unclear from the record what constitutes these "related allegations of misconduct[.]"
After both investigations concluded, on November 18, 2019, Herrera received a memorandum from the former Interim Chief of Police Johnny Patino, stating that Herrera's allegations of misconduct against Velebil were not sustained. The letter encouraged Herrera to report harassment or retaliation in the future, and assured him that any future complaints would be investigated and appropriate remedial actions would be taken if substantiated.
Four months later, on March 19, 2020, Herrera filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging he was sexually harassed by Velebil and retaliated against after he complained to the City. After receiving a right-to-sue letter, Herrera filed this lawsuit against the City and Velebil alleging three causes of action: (1) gender-based harassment in violation of FEHA; (2) retaliation in violation of FEHA; and (3) failure to prevent discrimination, harassment, and retaliation in violation of FEHA.
The City and Velebil moved for summary judgment or, alternatively, summary adjudication. They argued Herrera failed to file a timely complaint with DFEH and thus, his complaint is time-barred. Alternatively, they argued the undisputed facts demonstrate Herrera was not harassed based on his gender and the City had legitimate business reasons for their allegedly retaliatory actions. In opposition, Herrera argued his complaint was not time-barred under the doctrine of equitable tolling because the statute of limitations should have been tolled between the time he complained to the City and the conclusion of the internal investigation.
The trial court granted the City and Velebil's motion, concluding the equitable tolling doctrine should not be applied and thus, Herrera's claim for sexual harassment is time-barred. It further concluded Herrera's retaliation claim failed as a matter of law.
Herrera prematurely appealed from the order granting the City and Velebil's motion for summary judgment. On March 28, 2022, however, we granted Herrera's motion to treat the appeal
DISCUSSION
A. Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) A defendant moving for summary judgment must show "that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (§ 437c, subd. (p)(2).) "[W]e must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We accept as true both the facts shown by the losing party's evidence and reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
Summary judgment is appropriate only when "all the papers submitted 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." (§ 437c, subd. (c).) A triable issue of material fact exists if the evidence and inferences therefrom would allow a as an appeal from the February 15, 2022 judgment in favor of the City and Velebil. reasonable juror to find the underlying fact in favor of the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)
B. The Trial Court Properly Granted Summary Judgment
1. First Cause of Action: Sexual Harassment
At the time of the alleged misconduct here, FEHA provided that no administrative complaint alleging a violation of its provisions could be filed with the DFEH "after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." (Gov. Code, § 12960, former subd. (d).) The doctrine of equitable tolling, however, allows the suspension or extension of a limitations period under certain circumstances. (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) Our Supreme Court has held a plaintiff bringing causes of action under FEHA may rely on the equitable tolling doctrine to toll the one-year statute of limitations while the plaintiff is voluntarily pursuing an internal administrative remedy, i.e., an internal investigation by the employer. (Id. at pp. 106, 111.) For equitable tolling to apply, however, the plaintiff must establish "three elements: 'timely notice, and lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff.'" (Id. at p. 102, quoting Addison v. State of California (1978) 21 Cal.3d 313, 319.)
The Legislature recently amended the statute to provide a three-year statute of limitations. (Gov. Code., § 12960, subd. (e).) This amendment, however, is not retroactive. (See Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931 [one-year statute of limitations applicable where misconduct occurred before amendment].)
Absent equitable tolling, Herrera ordinarily would be able to sue only based on acts occurring during the one-year period immediately prior to the filing of his March 19, 2020 DFEH complaint, i.e., on or after March 19, 2019. Herrera argues that his lawsuit is nevertheless timely because both his November 2, 2017 written complaint and his January 2018 verbal complaint should stop the clock on his one-year filing deadline during the pendency of the investigation of those complaints.
The trial court concluded equitable tolling did not apply because Herrera's "evidence fails to show good faith and reasonable conduct by [Herrera] in filing the second claim." The trial court explained that Herrera had "not provided any reasonable explanation as to why he failed to mention the alleged sexual harassment for a year and a half[,]" and "why he did not alert the City during the four hour interview in 2018[.]" Even assuming arguendo equitable tolling applies, however, the only incidents that occurred within the limitations period proposed by Herrera (i.e., one year preceding his November 26, 2017 internal complaint) are the alleged incidents on May 12 and November 25 of 2017. Because Herrera first complained to the City more than a year after the alleged conduct that occurred between July and September of 2016, equitable tolling does not save a cause of action based on that conduct. (See Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923 [the timely notice element of equitable tolling essentially means that the first claim must have been filed within the statutory period]).
Herrera does not argue the alleged misconduct in 2016 is not time barred based on the continuing violation doctrine. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 (Richards) [where continuing violations are alleged, a complaint arising out of FEHA is not time barred by the statute of limitations if any act occurred within the limitations period].) Rather, Herrera seemingly concedes in his opening brief that, even if the equitable tolling doctrine applies, his complaint is only timely with respect to the May 12 and November 25 incidents. Thus, the 2016 incidents are admissible and relevant only to the extent they provide context and background useful to determine whether the alleged actions that occurred within the limitations period were of a sexual nature. (See, e.g., Richards, supra, 26 Cal.4th at p. 812, citing United Air Lines, Inc. v. Evans (1977) 431 U.S. 553, 558 [97 S.Ct. 1885, 52 L.Ed.2d 571].)
Having narrowed our focus of Herrera's claim for sexual harassment to the May 12 and November 25 incidents only, as we must for the reasons discussed above, we conclude the claim fails as a matter of law.
FEHA prohibits the sexual harassment of an employee. (Gov. Code, § 12940, subd. (j)(1).) "Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature." (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459.) FEHA recognizes two theories of lability for sexual harassment: "'"[Q]uid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances . . . [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment."'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1943.) "[A] hostile work environment sexual harassment claim requires a plaintiff employee to show [he or] she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of [his or] her employment and create an abusive work environment [citations]. In addition, [he or] she must establish the offending conduct was imputable to [his or] her employer." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (Lyle).)
Herrera appears to rely on the hostile work environment form of sexual harassment. He contends the May 12 incident (when, according to Herrera, Velebil asked him on a date) made him feel extremely uncomfortable "especially in light of Velebil's prior actions toward Herrera" in 2016. He further contends the November 25 incident was "part of Velebil's pattern of sexual harassment against Herrera." Based on these incidents, Herrera argues a jury could reasonably find Velebil sexually harassed him or discriminated against him because of his gender. We disagree.
The two incidents, which occurred six months apart, were isolated and sporadic, and therefore do not rise to the level of actionable conduct for a sexual harassment claim. (See Lyle, supra, 38 Cal.4th at p. 283 ["[A]n employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial"] see also Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 131-132, 144-145 [concluding three incidents over a five-week period, including an incident in which a male employee asked a female employee where she lived and then "put his arm around [her] and, as he did so, his arm rubbed against her breast" fell "short of establishing 'a pattern of continuous, pervasive harassment' [citation] necessary to show a hostile working environment under FEHA"].)
Accordingly, the trial court did not err in granting summary judgment in favor of the City and Velebil on Herrera's sexual harassment claim.
2. Second Cause of Action: Retaliation
To establish a prima facie case of retaliation under FEHA, "'a plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.'" (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.) "Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) "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.)
Herrera contends he was subjected to the following adverse actions in retaliation for reporting Velebil's alleged sexual harassment: (1) on February 11, 2018, Velebil took Herrera's shotgun away for two weeks because, according to Velebil, it was not properly secured in the patrol vehicle in violation of the department's policy; (2) on July 18, 2018, Herrera was transferred from the weekend graveyard shift to the weekday cover shift for six months; and (3) in January 2019 he was denied a promotion to the Special Weapons and Tactics (SWAT) team.
The trial court addressed Herrera's retaliation claim on the merits without first determining whether it is timely. The alleged retaliatory acts occurred more than a year before Herrera filed the DFEH complaint in March 2020, however. Thus, the retaliation claim is untimely unless an exception applies. (See Gov. Code, § 12960, former subd. (d).) As we did with Herrera's harassment claim, we assume (without deciding) that equitable tolling applies because as discussed in detail below, Herrera's retaliation claim fails on the merits as a matter of law.
We agree with the trial court that the two-week denial of the use of a shotgun and the six-month transfer to a weekday shift do not constitute adverse employment actions. An "adverse employment action" is one that "materially affects the terms, conditions, or privileges of employment." (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1051.) An adverse employment action refers not only to "ultimate employment actions such as termination or demotion, but also . . . actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." (Id. at p. 1054.) That said, "[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable[.]" (Ibid.)
The record contains no evidence that the two-week denial of the use of a shotgun materially affected the terms and conditions of Herrera's employment. The same is true for the six-month transfer to a weekday shift. Herrera acknowledges that officers' schedules rotated every six months, and he was transferred back to his preferred weekend graveyard shift in January 2019. He complains, however, that the weekday shift denied him the opportunity and exposure to critical incidents that allowed for use of the police dog, which mostly occurred during the weekend graveyard shift. He also claims he was "buried in reports" and "always writing reports." These complaints, however, do not demonstrate that the shift change impaired his job performance or prospects for advancement or promotion. (See Yanowitz, supra, 36 Cal.4th at p. 1054-1055.) Rather, the evidence simply demonstrates Herrera was "displeased" by the shift change, which does "not elevate that act . . . to the level of a materially adverse employment action." (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) Herrera, therefore, cannot satisfy the adverse action element of a prima facie case of retaliation based on those actions. The denial of the promotion to the SWAT team, however, undeniably constitutes an adverse employment action. We therefore turn to whether the record demonstrates the City had a legitimate, nonretaliatory reason for its denial of the promotion.
In support of its summary judgment motion, the City offered evidence demonstrating Herrera was not selected for the SWAT team because he failed the shooting portion of the exam. The selection criteria for the SWAT team includes marksmanship, i.e., a "'[c]andidate must be proficient with handguns and long guns and be able to pass all qualification courses.'" According to the Baldwin Park Police Department Manual, a candidate passes the shooting exam if he or she obtains 90 percent accuracy. It is undisputed that Herrera scored 62 percent on his first attempt, and 78 percent on his second attempt.
Because the City's proffered reason for not selecting Herrera for the SWAT team is unrelated to Herrera's complaints against Velebil, the burden shifts to Herrera to demonstrate a triable issue of fact that the City's stated reason for not promoting him to the SWAT team was pretextual. Herrera did not meet that burden.
Herrera argues pretext can be shown from evidence demonstrating the selection process for the SWAT team consists of three independent qualification tests (physical proficiency, shooting, and the oral examination) and candidates do not normally proceed to the oral examination without first passing the shooting test. Because Herrera proceeded to the oral examination, he argues he must have passed the shooting test. He also claims the handgun shooting course was faulty and all candidates were told they "shot like crap." But the objective documentary evidence demonstrates Herrera did not receive a passing score on the shooting test on either of his two attempts. That the City permitted Herrera to proceed to the oral examination without passing the shooting test first, or that the test was faulty and all candidates performed poorly, demonstrates, at most, that the City may have erred in its administration of the SWAT examination. But "simply show[ing] the employer's decision was wrong, mistaken, or unwise" is insufficient to show pretext. (See Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
Finally, Herrera argues pretext can be shown from the deposition testimony of Luis Valdivia, a member of the SWAT team. In his opening brief on appeal, he states "there is Valdivia's testimony that Herrera was not selected to SWAT because he was labeled as a 'snitch' because of his complaints about Velebil." That was not Valdivia's testimony, however. Valdivia testified Sergeant Gonzalez did not want Herrera on the SWAT team because of his "attitude." In response to the follow-up question regarding whether the shooting score was "just an excuse to keep [Herrera] from joining . . . the SWAT team[,]" Valdivia responded: "No. I mean, he still needed to pass the shooting with a certain score."
On this record, we conclude Herrera failed to produce evidence from which a reasonable trier of fact could infer the City retaliated against him for his complaints against Velebil when it did not select Herrera for the SWAT team.
3. Third Cause of Action: Failure to Prevent Harassment and Retaliation
To prevail on a claim for failure to prevent harassment or retaliation under FEHA, a plaintiff must show he was subject to harassment or retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314-1315.) Because Herrera's claims for harassment and retaliation fail as a matter of law (for the reasons discussed above), his claim for failure to prevent harassment and retaliation cannot survive summary judgment.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
Our Supreme Court recently held that "[a]n appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff's action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so." (Pollock v. Tri-Modal Distribution Services, Inc., supra, 11 Cal.5th at pp. 950-951.) The City and Velebil, prevailing FEHA defendants, have not asked us to determine that Herrera's action was at any point frivolous, unreasonable, or groundless.
We concur: COLLINS, J. MORI, J.