Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 468459
Jenkins, J.
This is an appeal from judgment after the trial court granted a motion for summary judgment filed by defendants Board of Trustees of the California State University (San Francisco State or the University), Jason Katz, Nancy Rabolt, Marcia Allsopp, Don Taylor and Michael Martin (collectively, defendants). Plaintiff Julia Powell Keller-McIntyre, a former employee of the University, sued defendants for harassment, retaliation, and discrimination on the basis of age, gender and disability. Defendants thereafter moved for summary judgment on the ground that no triable issues of material fact existed regarding whether they harassed, retaliated, or discriminated against plaintiff because they had lawful reasons for their employment actions against her. The trial court granted the motion and entered judgment in defendants’ favor. We affirm.
At the relevant time, Jason Katz was plaintiff’s supervisor in the CHHS Student Resource Center; Nancy Rabolt was Chairperson of the Consumer and Family Studies/Dietetics Department of the University’s College of Health and Human Services and one of plaintiff’s supervisors; Marcia Allsopp was a Human Resources manager at the University; Don Taylor was Associate Dean and then Dean of the College of Health and Human Services; and Michael Martin was the Interim Associate Vice President with oversight of Human Resources at the University.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was an Administrative Analyst/Specialist employed by defendants at the University from 1996 until she elected service retirement on February 21, 2008. In 2003, plaintiff advised defendants that she suffered from schizophrenia and, at her request, received accommodations, including a modified work schedule, designed to permit her to continue working. Plaintiff had been diagnosed with mild schizophrenia in the late 1970s and, with treatment and medication, was able to earn a masters degree in public administration and to gain full-time employment.
Plaintiff’s last active day of employment was December 8, 2006.
In October 2007, plaintiff filed a complaint against defendants in San Francisco Superior Court alleging claims for breach of contract, common law torts and violations of the California Fair Employment and Housing Act, Government Code section 12940 (FEHA). According to plaintiff’s complaint, due to her psychiatric disability, defendants had transferred her and redefined her duties in such a way that she was effectively demoted from an administrative/management position to a clerical position, even though her job title and classification remained the same.
The October 2007 complaint was in fact the second complaint plaintiff had filed against certain of the defendants alleging employee mistreatment. The first such complaint was filed in federal court on May 15, 2006. Because the federal complaint has shaped the issues that are now before us, we briefly discuss it.
Plaintiff’s federal lawsuit involved claims for harassment, retaliation and discrimination based on gender, age and disability under Title VII of the Civil Rights Act of 1963, the Age Discrimination in Employment Act and the Americans with Disabilities Act. In short, plaintiff claimed defendants Nancy Rabolt, Bob Spina, Jason Katz and San Francisco State University refused to give her more managerial duties and negatively evaluated her job performance on the basis of her gender, age and disability, and retaliated against her for raising two complaints against them, one accusing them of libel and another with the EEOC accusing them of discrimination. In connection with the federal lawsuit, defendants retained Dr. Judith Keins, a forensic psychiatrist, who opined in November 2006 that plaintiff was too mentally disabled from schizophrenia to function in the workplace, even with reasonable accommodation. Defendants then moved for summary judgment, which was granted with respect to plaintiff’s claims for gender and age discrimination, harassment, and retaliation for filing a libel grievance, but denied with respect to her claims for disability discrimination and retaliation for filing an EEOC grievance. The matter proceeded to trial, after which the jury rendered a defense verdict as to all remaining claims. Plaintiff did not appeal the decision.
At the relevant time, Bob Spina was Chair of the Kinesiology Department and one of plaintiff’s supervisors.
On October 27, 2007, plaintiff filed the complaint in this lawsuit against defendants asserting claims for breach of contract, common law torts and violations of FEHA. The complaint, which was subsequently amended, raised new allegations of wrongdoing by defendants occurring after plaintiff filed the federal lawsuit, as well as some allegations that had previously been raised in federal court. In particular, the complaint alleged that two actions by defendants after the federal lawsuit was filed – placing plaintiff on paid administrative leave on December 8, 2006, and applying to the California Public Employees’ Retirement System (CalPERS) on her behalf for involuntary disability retirement on June 8, 2007 – demonstrated their continued discrimination, retaliation and harassment against her. It further alleged that four physicians, including Dr. Martin Blinder, plaintiff’s treating psychiatrist, had diagnosed her with mild schizophrenia in remission with treatment and medication, and opined, contrary to the physicians hired by defendants, that she was mentally competent to return to work.
Defendants demurred to the amended complaint on several grounds, including that many of plaintiff’s claims were barred by principles of res judicata and collateral estoppel given the final judgment in the federal case. In addition, because CalPERS had not yet responded to their application, defendants requested that the action be dismissed or stayed pending a determination regarding whether plaintiff qualified for disability retirement. The trial court agreed with this request and issued the stay. Then, when CalPERS denied the application on February 20, 2008, the trial court lifted the stay and held a new hearing on the demurrer.
The trial court thereafter partially sustained the first demurrer, as well as defendants’ subsequently-filed second demurrer, ultimately ruling that plaintiff had failed to set forth valid causes of action for breach of contract and common law employment-related torts, and granting her ten days to amend the complaint again to raise only statutory claims that were not and could not have been raised in the earlier federal lawsuit. Plaintiff thus filed the operative complaint in this appeal – the second amended complaint – that was limited to statutory claims under FEHA for discrimination, retaliation and harassment based on events occurring after she filed the federal lawsuit.
In the meantime, on February 21, 2008, one day after CalPERS denied defendants’ application on her behalf for disability retirement, plaintiff submitted a letter to defendant Martin announcing her “decision to retire,” explaining that her “retirement is being forced by [the University].” In a series of correspondence that followed from March to May of 2008, the University attempted several times to confirm to plaintiff that she had voluntarily elected service retirement; plaintiff, however, continued to insist she had been “terminated,” advising in one such letter that the “University forced me to retire through forced service retirement because I could not psychologically return to SFSU again.” Plaintiff also advised the University that, because her unemployment insurance benefits had terminated, she had no choice but to retire in order to begin receiving her pension because she had no further income.
Plaintiff several times claimed she was “terminated” on December 8, 2006, the day she was placed on paid administrative leave. Defendants explained to plaintiff, however, that her employment was not terminated when she was placed on leave, and that she continued to be employed by the University until she elected service retirement in February of 2008.
On December 8, 2008, defendants moved for summary judgment. In support of their motion, defendants offered evidence that, in taking the relevant personnel actions against plaintiff, they were motivated by legitimate, nondiscriminating reasons. In particular, defendants offered evidence that they placed plaintiff on paid administrative leave only after receiving the medical opinion of Dr. Keins that she was unfit to work for the University due to psychiatric disability, even with reasonable accommodation. Further, defendants applied to CalPERS on plaintiff’s behalf for disability retirement after receiving the June 1, 2007 medical report of psychiatrist Stephen Schneider, who, like Dr. Keins, opined that plaintiff could not perform the essential functions of her job, even with an accommodation, due to her disability. These decisions, according to defendants, were made in reliance on and in compliance with the relevant statutory law, Education Code section 89536.1. Moreover, also in accordance with this statute, defendants removed plaintiff from paid administrative leave and placed her on unpaid leave on July 1, 2007, pending a decision by CalPERS on their disability retirement application. Then, when defendants learned on January 18, 2008, that CalPERS intended to deny their application, they immediately returned plaintiff to paid leave status, reimbursed her in cash for salary and benefits earned while on unpaid leave, and began preparing for her return to work. Defendants stopped these preparations, however, on February 21, 2008, when, one day after CalPERS denied their application and explained to plaintiff that she could resume working, she took voluntary service retirement.
The University had requested that plaintiff be further evaluated by Dr. Schneider, and plaintiff agreed after initially refusing the request.
Education Code section 89536.1 provides in relevant part: “(a) If, after considering the conclusions of a medical examination or medical reports from an employee’s physician or other pertinent information, the trustees determine that the employee is unable to perform the work of his or her present position or any other position in the state university system, and the employee is eligible for, and does not waive the right to, retire for disability, the trustees shall file an application for disability retirement on the employee’s behalf. The trustees shall give the employee 15 days’ written notice of their intention to file the application and a reasonable opportunity to respond prior to the filing of the application. However, the decision to file the application is final, and is not appealable to the State Personnel Board. “(b) Notwithstanding Section 21153 of the Government Code, upon filing the application for disability retirement, the trustees may remove the employee from his or her job and place the employee on involuntary leave status. The employee may use any accrued leave during the period of the involuntary leave. If the employee’s leave credits and programs are exhausted, or if they do not provide benefits that are at least equal to the estimated retirement allowance, the trustees shall pay the employee an additional temporary disability allowance so that the employee receives payment that is equal to the estimated retirement allowance. The trustees shall continue to make all employer contributions to the employee’s health insurance plan during the period of involuntary leave. “(c)... If the application is denied, the trustees shall reinstate the employee to his or her position, with back salary and benefits, less any temporary disability allowance paid by the trustees. The trustees shall also restore any leave credits that the employee used during the period of the involuntary leave.”
Plaintiff returned this money to the University, however, explaining that she could not accept it because she was receiving unemployment insurance payments.
Plaintiff filed several papers in opposition to summary judgment, including an opposition to defendants’ separate statement of undisputed material facts (hereinafter, opposition separate statement), in which she argued that disputed issues of material fact existed with respect to each of her causes of action. In particular, plaintiff argued that several of defendants’ actions that occurred after she filed the federal lawsuit amounted to discrimination, harassment, and retaliation. Plaintiff disputed that defendants had complied with Education Code section 89536.1, arguing that the statute required them to accept the medical opinions of her physicians that she was fit for duty, which they refused to do. Plaintiff further argued that defendants improperly used Education Code section 89536.1 to accomplish wrongful termination.
Defendants responded by filing evidentiary objections and a reply memorandum that, among other things, noted plaintiff’s failure to file an opposition separate statement that complied with the mandatory procedural rules, or any evidence in the form of affidavits or declarations to verify many of the assertions made in her opposition papers. Instead, plaintiff simply attached to her papers as exhibits various unauthenticated letters and other documents authored by third parties.
Plaintiff thereafter filed five additional documents in opposition to summary judgment, although none of them contained evidence in the form of affidavits or declarations to verify or otherwise set a foundation for the assertions made in her opposition papers.
Plaintiff’s five documents were labeled as follows: Opposition to Objection to Plaintiff’s Separate Statement; Opposition To [Proposed] Order Re: Defendant’s Objections To Plaintiff’s Separate Statement; Opposition To Defendant’s Objections To Certain Opposition; and Opposition To [Proposed] Order On Defendants’ Objections To Certain Opposition Evidence.
Following a hearing, the trial court sustained defendants’ evidentiary objections and granted their summary judgment motion. In doing so, the trial court provided the following reasons. First, plaintiff failed to file an opposition separate statement that complied with Code of Civil Procedure section 437c, subdivision (b)(3), and California Rules of Court, rule 3.1350(f). In particular, in violation of those mandatory rules, plaintiff’s opposition papers failed to inform the trial court of which of defendants’ purported undisputed facts she claimed were in dispute, and failed to refer the court to admissible evidence supporting her position. In addition, plaintiff’s papers contained arguments and conclusions, but no sworn declarations or affidavits or other admissible evidence to support them. Second, defendants succeeded in showing that one or more elements of plaintiff’s causes of action could not be established by offering undisputed evidence that they complied with Education Code section 89536.1 when filing a disability retirement application with CalPERS on plaintiff’s behalf, removing her from paid administrative leave, and then, after learning their application would be denied, placing her back on paid leave and reimbursing her for lost salary and benefits. Once defendants made this showing, plaintiff failed to offer admissible evidence showing the existence of triable issues of fact with respect to whether defendants relied upon Education Code section 89536.1 as a pretext for discrimination, retaliation or harassment.
The trial court thus found summary judgment proper on two separate, independent grounds, and entered judgment for defendants and against plaintiff. This appeal followed.
DISCUSSION
Plaintiff, proceeding in propria persona, argues on appeal that the trial court erred in granting defendants’ summary judgment motion because triable issues of material fact exist regarding whether defendants complied with Education Code section 89536.1, or whether they instead used the statute as a pretext for discriminating against, retaliating against and harassing her. Plaintiff further argues the trial court erred in ordering her to pay defendants over $6,000 in costs.
In connection with her opening brief, plaintiff has submitted several letters from her physicians responding to the trial court’s decision and reiterating their belief that she is fit to work. Of course, we decline to consider these documents, as they are not part of the appellate record.
Defendants, in turn, ask that we affirm the judgment in their favor, arguing that the trial court properly granted summary judgment based on plaintiff’s failure to file an appropriate opposition separate statement and her failure to provide admissible evidence showing any disputed issues of material fact in support of her claims. Moreover, defendants argue that they met their burden of proving that a lawful basis existed for each of the employment actions taken against plaintiff in that they were relying upon and complying with Education Code section 89536.1.
I. Rules Governing Review of the Trial Court’s Grant of Summary Judgment.
Summary judgment may be granted “if it is contended that the action has no merit....” (Code Civ. Proc., § 437c, subd. (a).) A defendant moving for summary judgment has met the burden of showing that a cause of action has no merit if that party “has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2). See also Teselle v. McLoughlin(2009) 173 Cal.App.4th 156, 168-169 (Teselle).)
“We review an order granting or denying a motion for summary judgment de novo, examining the evidence before the trial court. We independently determine the effects of that evidence as a matter of law. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 161, 163 [80 Cal.Rptr.2d 66].) ‘In undertaking our independent review of the evidence submitted, we apply “ ‘ “the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” ’ ” ’ (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392 [134 Cal.Rptr.2d 689].)” (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 601-602.)
As an initial matter, defendants contend a different standard of review – the abuse of discretion standard – applies where, as here, the trial court grants a summary judgment motion based upon the opposing party’s failure to comply with the procedural rules embodied in Code of Civil Procedure section 437c, subdivision (b)(3), and California Rules of Court, rule 3.1350. In doing so, defendants rely on Whitehead v. Habig (2008) 163 Cal.App.4th 896, 901.
Code of Civil Procedure section 437c, subdivision (b), provides in relevant part: “(2)... The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. “(3) The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subds. (b)(2), (b)(3).)
As defendants correctly point out, the court in Whitehead held that “ ‘[t]he trial court’s decision to grant a motion for summary judgment because the opposing party failed to comply with the requirements for a separate statement... is reviewed for an abuse of discretion. [Citations.]’ [Citation.]” (Whitehead, supra, 163 Cal.App.4th at p. 901.) The Whitehead court further held that “[t]he separate statement is required, not discretionary, on the part of each party, and [that] the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).)” (Whitehead, supra, 163 Cal.App.4th at p. 902.) However, while we may agree with these statements of the law in the abstract, we disagree with the Whitehead court’s suggestion that a trial court may grant summary judgment on the sole basis that the opposing party failed to submit a separate statement that complies with section 437c, subdivision (b)(2). The reason is this. “ ‘[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)” (Teselle, supra, 173 Cal.App.4th at p. 169.) As such, while the trial court may have discretion to grant summary judgment based on the opposing party’s failure to file a proper separate statement (§ 437c, subd. (b)(3)), “it would be an abuse of discretion for a trial court to grant a summary judgment based on a failure to file a separate statement when the moving parties have not in their moving papers set forth a prima facie showing for summary judgment — i.e., have not met their ‘burden of persuasion to show that there was no triable issue of material fact and that they were entitled to judgment as a matter of law.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) After a prima facie showing, the burden shifts to the opposing party to make a showing of the existence of a triable issue of fact. (Id. at p. 862.) If the opposing party fails to submit the required separate statement, under the applicable law and rules, a trial court may conclude that the opposing party has not satisfied his ‘burden of production’ showing a triable issue of fact. (Ibid.) Thus, we must examine whether defendants made a prima facie showing that they are entitled to a summary judgment.” (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416 (fn. omitted) (Kojababian). See also Teselle, supra, 173 Cal.App.4th at pp. 170-171 [criticizing Whitehead for not examining the shifting burdens imposed by section 437c, subdivision (p)(2), and noting that, with two exceptions, “in every other case of which we are aware the court has determined whether the moving party has established a prima facie case of entitlement to a judgment”]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086 [“While subdivision (b) of section 437c allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.”].)
We thus turn first to the issue of whether defendants have, in moving for summary judgment, “shown that one or more elements of [plaintiff’s] cause[s] of action, even if not separately pleaded, cannot be established, or that there is a complete defense to th[ose] cause[s] of action.” (§ 437c, subd. (p)(2).)
II. Defendants’ Evidentiary Showing in Support of Summary Judgment.
As mentioned above, plaintiff’s causes of action for discrimination, retaliation, and harassment arise under FEHA, which is designed to further the public policy that “[e]mployment practices should treat all individuals equally, evaluating each on the basis of individual skills, knowledge and abilities and not on the basis of characteristics generally attributed to [protected groups].” (Cal. Code Regs., tit. 2, § 7286.3.) Specifically, FEHA prohibits “an employer, because of... mental disability, medical condition,... sex, [or] age... of any person,” to discharge a person from employment, discriminate against the person in compensation or in terms, conditions, or privileges of employment, harass, or fail to make reasonable accommodation for a known mental disability of the person. (Gov. Code, § 12940, subds. (a), (j), (m).) The statute also prohibits an employer from terminating or otherwise discriminating against an employee because he or she has opposed any practices forbidden under the statute or has filed a complaint in any proceeding under it. (Id., § 12940, subd. (h).)
In cases brought under FEHA, the plaintiff bears the initial burden of proving a prima facie case. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) A prima facie case of discrimination is proved where: (1) the plaintiff was a member of a protected class, (2) she was qualified for the position she sought or was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests a discriminatory motive. (Id. at p. 355; see also Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) A prima facie case of retaliation is proved where: (1) the plaintiff was engaged in a protected activity, (2) the employer subjected her to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) And, a prima facie case of harassment, in turn, is proved where: (1) the plaintiff was subjected to hostile or abusive conduct or comments at work, (2) the conduct or comments were severe enough or sufficiently pervasive to alter the conditions of her employment and to create a hostile or abusive work environment, and (3) the conduct or comments were made because of her gender, age or disability. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647 (Reno).)
Where an employer moves for summary judgment in a case involving alleged violations of FEHA, the employer must show either that the plaintiff cannot establish one or more elements of her prima facie case, or that one or more legitimate, nondiscriminatory and nonretaliatory reasons motivated its allegedly adverse employment action. (Guz, supra, 24 Cal.4th at p. 356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098; Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1379 [Jones].) If the employer meets this initial burden on summary judgment, the burden then shifts to the plaintiff to produce substantial evidence that the employer’s stated nondiscriminatory and nonretaliatory reason for the adverse employment action was untrue or pretextual, or evidence the employer acted with a discriminatory or retaliatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination or intentional retaliation. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005; see also Jones, supra, 152 Cal.App.4th at pp. 1379-1380; Yanowitz, supra, 36 Cal.4th at p. 1042. See also Guz, supra, 24 Cal.4th at pp. 355-356 [under FEHA, “[t]he ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff”].)
Here, defendants sought summary judgment on the basis that each of the alleged adverse employment actions in this case – including placing plaintiff on administrative leave and applying to CalPERS on her behalf for disability retirement – was motivated by, and in compliance with, the requirements of Education Code section 89536.1. Specifically, defendants submitted declarations by defendants Martin and Allsop, among others, that proved that defendants submitted the disability retirement application to CalPERS and placed plaintiff on paid leave, followed by unpaid leave, only after receiving medical reports from two physicians who independently concluded she was too psychiatrically disabled to work at the University even with reasonable accommodation. Moreover, defendants relied upon and were motivated by Education Code section 89536.1, not by discrimination or retaliation, which requires the University to file an application for disability retirement on behalf of an employee if, “after considering the conclusions of a medical examination or medical reports from an employee’s physician or other pertinent information, the trustees [of the University] determine that the employee is unable to perform the work of his or her present position or any other position in the state university system, and the employee is eligible for, and does not waive the right to, retire for disability....” (Ed. Code, § 89536.1, subd. (a).)
In addition, defendants submitted evidence that they complied with the statute when, upon learning that CalPERS intended to deny their application for plaintiff’s disability retirement, they promptly reimbursed plaintiff for benefits and salary accrued while she remained on unpaid leave and began preparing to return her to work. (Ed. Code, § 89536.1, subd. (c).) However, one day after CalPERS issued a letter denying defendants’ application – which letter also explained to plaintiff that she had the option to return to work, to be transferred to another job covered under CalPERS or to take service retirement – plaintiff gave notice of her intent to take service retirement.
With respect to plaintiff’s harassment claim, defendants offered additional evidence in the form of declarations from defendants Taylor and Rabolt that they had no opportunity to harass plaintiff because they were not involved in any employment-related decisions involving her from the time she went on administrative leave in December 2006 until her retirement. Further, to the extent any of the defendants did have personal contact with plaintiff, they denied using language or conduct that could reasonably be viewed as harassing or creating a hostile work environment.
Having considered this evidence, we conclude it was sufficient to establish that defendants had legitimate rather than illicit reasons for taking adverse employment actions against plaintiff, and thus to shift the burden to plaintiff to produce evidence that, taken as a whole, would permit a reasonable inference that their actions were in fact taken to harass or to intentionally discriminate or retaliate against her. (Guz, supra, 24 Cal.4th at pp. 356, 361; Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at pp. 1097-1098; Jones, supra, 152 Cal.App.4th at p. 1379; Reno, supra, 18 Cal.4th at pp. 646-647.) As such, plaintiff’s compliance with section 437c, subdivision (b), in filing her opposition separate statement now becomes relevant. (Kojababian, supra, 174 Cal.App.4th at p. 416; Teselle, supra, 173 Cal.App.4th at pp. 170-171.)
III. Plaintiff’s Opposition to Summary Judgment.
As other courts have explained, “ ‘[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ ([Citation]; see § 437c, subd. (a).) The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers ‘a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed... [together with] a reference to the supporting evidence.’ [Citation.]” (Teselle, supra, 173 Cal.App.4th at p. 168; see also Kojababian, supra, 174 Cal.App.4th at p. 416.)
Here, as mentioned above, the trial court found that plaintiff’s opposition separate statement failed to comply with section 437c, subdivision (b), and rule 3.1350(f), because it failed to inform the court of which of defendants’ purported undisputed facts she was disputing, and failed to refer to admissible evidence supporting her position. While it is clear plaintiff, proceeding without assistance from counsel, made a good faith effort to comply with these rules, we cannot conclude the trial court abused its discretion in finding her noncompliant on these grounds. (Kojababian, supra, 174 Cal.App.4th at p. 416. See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [“[e]xcept when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forego attorney representation”].) Plaintiff’s opposition separate statement, like her other opposition papers, is largely narrative and argumentative in form, and contains few, if any, proper citations to supporting evidence.
Ultimately, however, plaintiff’s opposition to summary judgment fails not based on noncompliance with mandatory procedural rules, but based on her failure to prove necessary elements of her prima facie cases of discrimination, harassment and retaliation – i.e., some circumstance suggesting a discriminatory or retaliatory motive, a causal link between her protected activity in opposing practices forbidden under FEHA and defendants’ actions, or conduct severe enough or sufficiently pervasive to alter the conditions of her employment and to create a hostile or abusive work environment that were made because of her gender, age or disability. (Guz, supra, 24 Cal.4th at p. 355; Yanowitz, supra, 36 Cal.4th at p. 1042; Reno, supra, 18 Cal.4th at pp. 646-647.)
Plaintiff’s ultimate position is that defendants have misinterpreted Education Code section 89536.1, the statute upon which they rely to prove they had legitimate, nondiscriminatory, and nonretaliatory reasons for taking actions against her, and that, based on a proper interpretation, defendants failed to comply with the statute. According to plaintiff, the statute required defendants to accept the medical reports of her own physicians, who opined she was mentally fit to work, rather than the medical reports of Dr. Keins and Dr. Schneider, who opined (she claims falsely) that she was not fit for work, when deciding whether to file the disability retirement application on her behalf.
We reject plaintiff’s interpretation of Education Code section 89536.1 as a matter of law. On its face, the statute provides that, “[i]f, after considering the conclusions of a medical examination or medical reports from an employee’s physician or other pertinent information, the trustees determine that the employee is unable to perform the work of his or her present position or any other position in the state university system, and the employee is eligible for, and does not waive the right to, retire for disability, the trustees shall file an application for disability retirement on the employee’s behalf.” (Ed. Code, § 89536.1, subd. (a) (italics added).) The Legislature’s use of the disjunctive (“or”) rather than the conjunctive (“and”) connotes there are two distinct and independent bases for determining whether an employee is unable to work in the state university system for purposes of filing an application for disability retirement pursuant to this statute. (In re Jesusa V. (2004) 32 Cal.4th 588, 622 [“ ‘In its ordinary sense, the function of the word “or” is to mark an alternative such as “either this or that’ ”].) Accordingly, under the statute, defendants were entitled to rely on “pertinent information” contained in the medical reports of Drs. Keins and Schneider, rather than “medical reports from [plaintiff’s] physician[s],” in determining that she was “unable to perform the work of... her present position or any other position” in the University, and thus that they were required to file an application for disability retirement on her behalf. (Ed. Code, § 89536.1, subd. (a).)
Moreover, even assuming for purposes of our inquiry that plaintiff’s interpretation of Education Code section 89536.1 is reasonable and that she is correct that defendants failed to comply with it, the fact remains that she has failed to offer any actual evidence that defendants’ asserted reliance on the statute in taking the actions against her was untrue or a pretext masking an illegal motive. Plaintiff has likewise failed to offer evidence that defendants acted with discriminatory or retaliatory animus in relying on the statute, or made comments or engaged in conduct severe enough or sufficiently pervasive to create a work environment that was hostile or abusive. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005; Jones, supra, 152 Cal.App.4th at pp. 1379-1380; Yanowitz, supra, 36 Cal.4th at p. 1042; Reno, supra, 18 Cal.4th at pp. 646-647.) Without such evidence, no reasonable trier of fact could conclude defendants harassed or intentionally discriminated or retaliated against plaintiff, thereby entitling defendants to summary judgment. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 [“If the plaintiff produces no evidence from which a reasonable fact finder could infer that the employer’s true reason was discriminatory, the employer is entitled to summary judgment”].)
We note with respect to plaintiff’s harassment claim that, under California Supreme Court authority, personnel decisions, including “hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Reno, supra, 18 Cal.4th at pp. 646-647.) Rather, “ ‘harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification.’ ” (Id. at p.p. 645-646. See also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 294-295.) Plaintiff points to no evidence of conduct by defendants that meets this definition of harassment.
Plaintiff makes two additional arguments in opposing summary judgment regarding defendants’ alleged noncompliance with Education Code section 89536.1 that we briefly address. First, plaintiff claims defendants violated Education Code section 89536.1 by not giving her a temporary disability allowance (TDA) while she was on unpaid leave pending CalPERS’s decision on the disability retirement application. (Ed. Code, § 89536.1, subd. (b).) Second, plaintiff claims defendants violated the statute by not reinstating her after CalPERS issued its denial of the application, given that, according to plaintiff, she had already been terminated by defendants and thus could not be reinstated. (Id., § 89536.1, subd. (c).) The record, however, does not support plaintiff’s arguments.
First, defendants offered undisputed evidence that, before filing the disability retirement application with CalPERS, they explained to plaintiff in a letter in July 2007 that, as part of the disability retirement procedure, she would stay on paid leave until July 31, 2007, at which time she would be placed on involuntary leave and would become eligible to receive a TDA after exhausting all accrued leave credits and other available options, including non-industrial disability insurance. Plaintiff thereafter initially elected to exhaust her leave credits and apply for non-industrial disability insurance, which would have later entitled her to receive a TDA; however, she then decided against this course of action and elected instead to apply for unemployment insurance benefits, rendering her ineligible to receive a TDA. Thus, plaintiff’s failure to receive a TDA was due to her own decisions, not those of defendants.
In an administrative proceeding, defendants challenged plaintiff’s eligibility for unemployment insurance on the ground that she remained a University employee and would have been entitled to non-industrial disability insurance, had she applied, but an administrative law judge disagreed, and defendants later withdrew their appeal of this decision.
With respect to her second argument, defendants’ undisputed evidence proved that plaintiff was advised in writing by defendant Allsopp when defendants filed the disability retirement application that her separation from the University was “temporary,” and was later advised in writing by CalPERS when it denied the application that she could return to work (among other options), but plaintiff nonetheless gave notice by letter dated February 21, 2008, that she was taking service retirement. Plaintiff insists she was forced to do this, but there is no evidence whatsoever supporting her claim. As such, plaintiff’s argument again provides no basis for reversing the trial court’s decision to grant summary judgment.
IV. The Trial Court’s Award of Costs.
Finally, we address the trial court’s award of costs to defendants in the amount of $6,200. This award was based on defendants’ submission of a memorandum of costs stating that they had necessarily incurred $6,461 in defending against plaintiffs’ FEHA claims. Plaintiff does not dispute these costs, but rather argues she should not have to pay them for reasons of financial hardship and the so-called “American rule.” In doing so, plaintiff points to no actual evidence of personal financial hardship in the appellate record. And in any event, the law is clear that, “[i]n actions brought under [FEHA], the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code, § 12965, subd. (b). See also Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 681 [“ordinary litigation costs are recoverable by a prevailing FEHA defendant even if the lawsuit was not frivolous, groundless, or unreasonable”].) Here, there is no basis in the record for finding the trial court abused its discretion in awarding costs to defendants. As such, the award must stand.
Plaintiff identifies $6,200 as the amount of costs she was ordered to pay. The trial court’s order to pay costs does not specify an amount, however defendants’ memorandum of costs identifies $6,461 as the amount of costs that they incurred. For purposes of this appeal, we need not resolve this discrepancy.
Accordingly, for all of the reasons stated, the judgment is affirmed.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: McGuiness, P. J., Siggins, J.
California Rules of Court, rule 3.1350(f), in turn, provides: “Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits. On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.”