Opinion
C065169
10-24-2011
GENE L. ROGERS, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO, Defendant and Respondent.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 34-2008-00004 894-CU-WT-GDS
In 1999 Gene L. Rogers, M.D., was hired as Medical Director of the medically indigent health services program for the County of Sacramento (the County). In 2003, he filed pro se "whistleblower" lawsuits in state and federal court, alleging that the County was—in violation of federal law—providing nonemergency medical care to undocumented aliens.
In 2005, it came to the attention of Rogers's supervisors that he was spending a substantial amount of working hours and using county resources in pursuit of his personal litigation. A subsequent performance review found that Rogers was seriously deficient in many areas of his job duties, as well as having engaged in discourteous and insubordinate conduct towards his peers and supervisors.
When Rogers's performance failed to improve and he continued to defy his supervisors' directive not to work on his litigation while on the job, he was dismissed from his position.
Rogers filed a retaliation lawsuit alleging that he was harassed and then terminated for pursuing his pro se litigation. The trial court granted the County's motion for summary judgment. Rogers now appeals. We find no error and shall affirm.
FACTUAL AND PROCEEDURAL BACKGROUND
Our factual statement is based upon undisputed facts appearing in the moving and opposing papers on summary judgment.
Rogers's Employment with the County
In 1999 Rogers was hired by the Sacramento County Department of Health and Human Services (DHHS), as Medical Director of the County Medically Indigent Services Program (CMISP). The program provides nonemergency medical services to indigent residents of the County. At all times, Rogers's employment was "at will."
From 2004 through 2007, Nancy Gilberti was the Program Manager for the County's DHHS. She oversaw the County's CMISP program and was Rogers's direct supervisor from 2004 until August 2007.
Rogers's job duties did not include determining whether a patient receiving nonemergency services was a legal resident. That function belongs to the County's Department of Human Assistance, which is separate from the DHHS. If Rogers, or any employee, had reason to believe that a patient was an undocumented alien, he was required to report the information to the Department of Human Assistance.
Qui tam Litigation
In August 2003, Rogers filed a civil action in the United States District Court as a complainant on behalf of the government, alleging that the County was unlawfully using public funds to pay for medical services for undocumented aliens. He also filed a sealed whistleblower action in state court under the California False Claims Act (CFCA), with the same material allegations. (See Gov. Code, § 12650 et seq.) The two lawsuits were consolidated in federal court and eventually dismissed. They are no longer pending.
As the California Supreme Court explained in State ex rel. Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, "Under the CFCA, any 'person' who submits a false claim to the 'state,' or to a 'political subdivision,' may be sued for treble damages and civil penalties. (Gov. Code, § 12651, subd. (a).)" (Harris, at p. 1227.) "The CFCA specifies in detail who may bring and prosecute actions under that statute, depending on whether state or political subdivision funds are involved." (Ibid.)Ordinarily, the plaintiff must be a state or local government official. (Ibid.)"There is, however, a third category of eligible plaintiffs under the CFCA. A 'person' with independent knowledge of the facts, who gets to the courthouse first, may bring a qui tam action for and in the name of the state (if state funds are involved), or a political subdivision (where the political subdivision's funds are involved), or both." (Harris, at p. 1228, citing Gov. Code, § 12652, subds. (c)(1), (10), (d)(2), (3).)
Because the parties refer to the state and federal lawsuits filed by Rogers as the "qui tam litigation," we shall adopt this appellation as well.
In January 2004, the CFCA suit was unsealed and Rogers notified each member of the County Board of Supervisors that the action was pending. Rogers had been complaining to county officials since at least 2001 that illegal aliens had been receiving treatment by the County and, by 2004, county management was fully aware that Rogers was pursuing the qui tam litigation.
The Cease and Desist Letter
Sometime in 2005, Gilberti and the County's Division Chief of Primary Health Services Keith Andrews, M.D., became aware that Rogers was spending county time and using county computers and fax machines to pursue his qui tam litigation. An investigation confirmed that Rogers was indeed spending working hours and using county e-mail and the Internet for matters that were not job related.
Consequently, in January 2006, Andrews sent a "Direction to Cease and Desist" to Rogers (Cease and Desist letter). That letter acknowledges the lawsuit Rogers had filed against the County alleging unlawful payment for illegal immigrants through the CMISP program. It also notes that Rogers had been informed that he may not use county time or resources in pursuit of the litigation. Nevertheless, the letter continued, Rogers had expressed the opinion that he had the right to work on his lawsuit during working hours and while using county resources. "Accordingly," stated Andrews, "I am directing you to immediately cease and desist working on your litigation during your work hours for the County of Sacramento, or while on the premises of your worksite or any County facility you are required to be present at in the course of your job duties. I am further directing you to cease and desist using any County equipment, staff time, facilities, and other resources for purposes of advancing your litigation." The letter then detailed a list of activities from which Rogers was directed to refrain during normal working hours.
Further Progressive Disciplinary Action
In November 2006, Gilberti and Andrews felt that Rogers was not addressing concerns they had about his performance. Gilberti therefore prepared a "Duty and Standards" statement outlining the scope and functions of Rogers's position as "Medical Consultant." Among other things, these responsibilities included overseeing and approving requests for provider services from outside providers for nonemergency care, developing and implementing policies and procedures for the CMISP program and displaying "strong and visible leadership as a consultant."
The November 2006 annual evaluation form refers to Rogers's job title as "Medical Consultant," rather than Medical Director. In his brief, Rogers characterizes this as a "demotion." However, he fails to cite any admissible evidence supporting the contention that he was demoted.
Following Rogers's receipt of this statement of his responsibilities, Gilberti determined that he continued to fail to perform his job at an acceptable level. Thus, on April 4, 2007 (all further unspecified calendar dates are to 2007), Gilberti wrote a memorandum to her supervisors at DHHS, describing her concerns about the way Rogers was handling his job. Gilberti observed that "[Rogers] appears to be demonstrating patterns of behavior which are unprofessional, inconsistent with . . . his outlined job duties and standards, and inconsistent with the expectation of someone at his rank and level of authority." The memo listed a number of observations, including (1) poor judgment, poor communication and lack of teamwork; (2) failure to follow the program manager's instructions; (3) allowing a "crisis situation to continue and to grow" in community specialist participation in CMISP; and (4) disrespectful and discourteous treatment of supervisor and coworkers. She concluded that Rogers's behavior has "contribute[d] to additional work for other team members, including managers, supervisors, nurses, support staff, clinic staff, Division Chief, and contracted providers."
On May 4, 2007, Gilberti gave Rogers a written evaluation of his job performance based upon the description of job duties given to him in November 2006. In each category, save one, Rogers was rated "E," denoting "effort needed at meeting customer service standards." After each category, Gilberti wrote a series of recommendations for improvement. The evaluation contained a "corrective action plan" requiring Rogers to complete certain tasks by certain dates. Rogers told Gilberti that one of the areas she said he needed to improve upon, medical specialist recruitment, was not part of his responsibilities.
On May 7, Gilberti prepared and delivered to Rogers a letter of reprimand and met with him to discuss its contents. The letter cited three events demonstrating "discourteous treatment, neglect of duty, and willful disobedience." It also recounted an incident in which Rogers inappropriately wrote a comment regarding a patient's immigration status on an ophthalmology referral, an act "which is outside your and [the CMISP] program's purview." The reprimand also noted that Rogers had violated the terms of the Cease and Desist letter by continuing the "use of your title and County resources in furtherance of your litigation with the County." Rogers was directed to comply with the terms of the Cease and Desist letter, and to "treat all individuals respectfully and professionally." The reprimand reminded Rogers that he was an at-will employee and could be terminated with or without cause. It concluded: "Failure to meet the expectations outlined above and in your Performance Review will lead to further disciplinary actions, up to and including termination."
During his meeting with Gilberti to discuss the reprimand, Rogers spoke in a deliberately low, soft voice, asked her to define "courteous behavior," and told her she needed to "grow up." Gilberti perceived that Rogers reacted to the reprimand by mocking her, speaking to her in a condescending manner, and otherwise engaging in behavior that was "entirely unprofessional and inappropriate."
On May 15, while discussing with Gilberti a plan for specialty provider recruitment, Rogers accused her of trying to provoke him so she could reprimand him for discourteous treatment. Gilberti considered this accusation unprofessional and inappropriate.
Termination of Employment
By May 29, the deadline had passed for Rogers to carry out the corrective actions listed in Gilberti's May 4 performance evaluation. Rogers nevertheless continued to be defiant and insubordinate and Gilberti concluded that he lacked either the intent or the ability to perform the job of medical consultant; accordingly, she authored a memo to Andrews, DHHS Primary Health Division Chief, requesting Rogers's dismissal.
The "Request for Dismissal," which was supplemented by a three-page addendum dated July 6, related that "since January 2006, Dr. Rogers'[s] job performance significantly deteriorated in several areas, including but not limited to: failure to collaborate with CMISP team members, County primary care physicians and administrative staff in developing and implementing CMISP program policies and procedures; and lack of leadership in procuring necessary access to medical specialty services, which resulted in a critical shortage of access to specialty care for CMISP clients, thereby creating unacceptable delays in patient access to specialty care and increasing County risk." The Request also stated that since the corrective action plan was given to him on May 4, Rogers "had not satisfied the requirements of the corrective action plan, and had not demonstrated improvement in many areas of his job duties . . . ."
Andrews presented the dismissal request to DHHS Director Lynn Frank who, based upon Gilberti's reports and Andrews's approval, wrote a letter to Rogers terminating his employment, effective August 6.
Litigation and Judgment
Rogers filed a three-count civil complaint in the trial court for (1) interference with employee disclosure and retaliation under the CFCA (Gov. Code, § 12653); (2) discrimination and retaliation in violation of Labor Code section 1102.5; and (3) tortious termination of employment in violation of public policy. Each cause of action is based on the same factual premise: that Rogers was unfairly treated and ultimately terminated by defendants because of his active pursuit of his qui tam litigation, and to "silence [his] protestations against Defendants' inappropriate use of taxpayer funds to provide non-emergent care to illegal aliens."
The complaint named Andrews, Gilberti, and Frank as codefendants, along with the County. The individual defendants were voluntarily dismissed by Rogers prior to judgment, leaving the County as the lone defendant.
The County moved for summary judgment. The gist of the motion was that Rogers was terminated for legitimate, nondiscriminatory reasons unrelated to his qui tam litigation, and there was no substantial evidence that his termination was a pretext for retaliation. Rogers filed opposition, claiming the reasons offered by the County were flimsy and that a jury could reasonably find the County was retaliating against him for engaging in protected activity.
The trial court granted the motion. In a detailed memorandum supporting its decision, the court concluded that the County had shown by competent evidence that there existed legitimate, nonretaliatory reasons for Rogers's termination. The court rejected Rogers's claim that he had shown a causal link between his dismissal and his participation in protected activity, thereby failing to establish a prima facie case of workplace retaliation. Additionally, assuming Rogers carried his burden of establishing a prima facie case, the County had produced legitimate business reasons for his termination and Rogers had failed to provide "'substantial responsive evidence'" that such reasons were false and a mere pretext for retaliation. Rogers appeals from the ensuing judgment.
DISCUSSION
I. Refusal to Grant a Continuance
Before reaching the merits of the trial court's order, we must first dispose of Rogers's initial claim that the court erroneously considered the County's counsel's late-filed declaration authenticating certain exhibits that were attached to the motion for summary judgment.
Contemporaneous with the filing of the motion for summary judgment, the County filed a "Statement of Undisputed Material Facts" in support of the motion. Attached to it were various exhibits, including excerpts from the deposition testimony of various witnesses in the case. Each excerpt had a cover page bearing the logo of the certified court reporter and a copy of the certification signed by the court reporter who prepared the transcript. Rogers filed objections to these exhibits on a number of grounds, including the fact that the deposition excerpts did not include a declaration by the moving party authenticating the deposition testimony.
In response, the County's counsel filed, along with his reply papers, a declaration personally authenticating the deposition exhibits in question. The declaration was filed and served by mail eight days before the hearing.
At the hearing, Rogers's counsel orally moved for a continuance to respond to the now properly authenticated exhibits. The trial court denied the continuance. It ruled that counsel's declaration was not "new evidence" but merely authentication of evidence that had already been submitted by the County along with its moving papers, and that "Plaintiff [Rogers] had every opportunity to respond to the deposition testimony in the opposition."
Rogers contends the trial court erred in considering the belatedly authenticated deposition excerpts submitted by the County, while refusing Rogers's motion for a continuance to "afford more time to research and respond to such late evidentiary filing." We are not impressed.
The trial court's denial of a continuance in a summary judgment proceeding is reviewed for abuse of discretion. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) We review the trial court's ruling, not its rationale. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.) Continuances in summary judgment motions are governed by subdivision (h) of Code of Civil Procedure section 437c. Under that section, a nonmoving party may obtain a continuance by affidavit of good cause showing: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Frazee, supra, 95 Cal.App.4th at pp. 633-634.)
Rogers did not file an affidavit at all. He made an oral motion at the hearing. On this ground alone, the court's ruling satisfies the abuse of discretion test. Nor did Rogers explain why a continuance was needed to develop new facts essential to opposing the motion. After all, the deposition excerpts had been filed along with the motion and Rogers had a full opportunity to respond to them in his opposition. The authenticating declaration added nothing to the substance of the excerpts. Unlike the cases cited by Rogers, counsel was neither surprised nor ambushed.
We also note that, because Rogers submitted authenticated excerpts from the depositions of Gilberti and Andrews along with his opposition, he was precluded from arguing that his opponent's excerpts from the same depositions were inadmissible for lack of authentication. (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1528-1529.)
Finally, Rogers utterly fails to show prejudice from the trial court's denial of the continuance. He merely advances the fuzzy claim that the court's ruling violated his "due process rights." Without a demonstration of prejudice, the assignment of error, even if meritorious, must fail. (Cal. Const., art. VI, § 13.)
II. Resolution of the Summary Judgment Motion
A. Preliminary Procedural Note
Rogers claims that he was punished by his superiors for pursuit of his pro se "whistleblower" litigation that alleged the County was providing medical care to illegal aliens. The CFCA imposes civil liability and penalties on anyone who knowingly presents a false claim to the state or a political subdivision thereof. (Gov. Code, § 12650 et seq.; 3 Witkin, Summary of Cal. Law (10th ed. 2010) Agency and Employment, § 288, p. 372.) "Under the CFCA, an employer may not 'discharge . . . an employee . . . because of lawful acts done by the employee . . . in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652 [to enforce the CFCA].' (Gov. Code, § 12653, subd. (b).)" (Kaye v. Board of Trustees of San Diego County Public Law Library (2009) 179 Cal.App.4th 48, 59.)
The second cause of action seeks the same relief based upon the protection afforded by Labor Code section 1102.5, which forbids retaliation against an employee for disclosing information to a government or law enforcement agency where the employee "has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation" (Lab. Code, § 1102.5, subd. (b)).
The final cause of action is for wrongful discharge in violation of public policy. Such a tort claim, first recognized in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, prohibits even an at-will employee from being terminated for "an unlawful reason or a purpose that contravenes fundamental public policy." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094 (Gantt ), overruled on a separate ground in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6; see also Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91.) The asserted public policy in this case would be the policy against punishing an employee for pursuing whistleblower litigation that challenges his employer's alleged unlawful conduct.
California follows the "primary rights" theory of litigation based on the harm suffered (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860), regardless of the number of theories of relief alleged in the complaint or asserted at trial (Slater v. Blackwood (1975) 15 Cal.3d 791, 795). Here, Rogers is asserting a single primary right violation: the economic and noneconomic damage suffered as a result of being harassed and then terminated for pursuing his qui tam litigation. Because all of Rogers's causes of action are, in reality, aspects of a single legal claim-retaliation by his employer for engaging in protected activity— the legal analysis that follows applies equally to all causes of action.
B. Summary Judgment Principles
"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. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We consider all of the evidence presented by the parties and all inferences reasonably deducible from that evidence. (Code Civ. Proc., § 437c, subd. (c).)
C. Prima Facie Case
To establish a prima facie case of unlawful retaliation for whistleblowing activity, a plaintiff must present substantial evidence that (1) he engaged in a protected activity; (2) the employer thereafter subjected him to an adverse employment action; and (3) there was a causal connection between the protected activity and the employer's action. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) If a prima facie case is established, the burden shifts to the employer to demonstrate legitimate business reasons for its decision. If it does so, the burden shifts back to the employee to show those reasons were pretextual. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.)
There is no dispute that Rogers engaged in protected activity by pursuing the qui tam litigation and that he subsequently suffered adverse employment action. The trial court ruled, however, that Rogers had not established the third element of his prima facie case—a causal link between pursuit of the litigation and his termination. We agree. 1. Causation.
"'"To establish a prima facie case of retaliation, a plaintiff must show that [he] engaged in protected activity, that [he] was thereafter subjected to adverse employment action by [his] employer, and there was a causal link between the two."'" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 (Morgan), italics added.)
In support of his argument that there was a causal connection between the qui tam litigation and his eventual termination, Rogers points to evidence that (1) the County was aware he was pursuing the litigation; (2) when Andrews wrote the Cease and Desist letter, he knew that Rogers had been communicating with the office of County Counsel about the litigation; (3) Gilberti and Andrews assisted county counsel in retrieving documents relevant to the litigation; (4) Rogers mentioned the statutory whistleblower protections in a meeting with Human Resources personnel; and (5) the reprimand and Request for Dismissal documents specifically mention the CFCA lawsuit.
None of this constitutes evidence from which a jury could conclude that Rogers was singled out, harassed, and/or fired for pursuing his lawsuits. The fact that Gilberti and Andrews may have assisted counsel in responding to litigation affecting their job duties is unremarkable and certainly not evidence of animus toward Rogers for filing the litigation. Nor can Rogers's expression of fear that he might be subject to retaliation for being a whistleblower be converted into a motive on the part of his employer to fire him for engaging in litigation. Finally, an objective reading of the dismissal memoranda shows that Gilberti's concern was not the existence of the lawsuits, but Rogers's continued and persistent devotion of county business time and resources in their pursuit, even after having been warned not to do so. What upset the County was not the fact that Rogers was pursuing the litigation, but that he was misusing county resources and neglecting his responsibilities by pursuing matters that were beyond the scope of his job duties.
Gilberti's declaration stated that when the County became aware of the CFCA lawsuit her supervisor, Andrews, advised her not to discuss it with Rogers, advice that she heeded at all times. As of the date of her declaration, Gilberti had never even read a copy of the complaint.
Rogers's argument depends upon a blurring of the distinction between pursuing his pro se litigation and the diversion of working hours and misuse of county property in doing so. No one challenged Rogers's right to litigate. There is no evidence that the County was worried about the qui tam litigation or made any efforts to impede the progress of the litigation. However, the County did strongly object to Rogers spending county time and the county's dime on unrelated litigation matters. As Andrews put it in the Cease and Desist letter: "[C]onducting litigation, whether against the County or anyone else, is not within the course and scope of your job duties." The fact that the County reprimanded and then fired Rogers, in part, because he continued to defy the letter is not evidence of retaliation. The whistleblower statutes were designed to prohibit an employer from punishing an employee for investigating or complaining about illegal conduct. They were not designed to provide immunity to an employee who uses his office in pursuit of litigation that is outside the scope of his job responsibilities.
The County's Statement of Undisputed Material Fact No. 18 asserted that "Plaintiff was using county time to litigate his Federal lawsuit, including discovery litigation, motions and preparation and receipt of correspondence with opposing counsel." Rogers's response was: "Undisputed."
At oral argument, counsel for Rogers asserted that whether Rogers spent an excessive amount of time on litigation matters unrelated to his job duties should be a question for the jury. We reject the notion that a jury—rather than the employer—may act as the arbiter of the terms and conditions of Rogers's employment. Moreover, the issue is not whether the County's rules were too harsh, but whether it harbored a retaliatory motive for its actions. Rogers does not deny that he used county time and resources pursuing personal litigation and that he continued to do so openly after receiving the Cease and Desist letter. Undisputedly, there existed a legitimate, nonretaliatory reason for his termination.
Causation can sometimes be inferred circumstantially from timing, i.e., when the employer's awareness of the protected activity is followed closely by an adverse employment decision. (See Morgan, supra, 88 Cal.App.4th at p. 69, citing Jordan v. Clark (9th Cir. 1988) 847 F.2d 1368, 1376; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) ¶ 10:87, pp. 10-15 to 10-16 (rev. #1, 2007) (hereafter Chin).) However, close temporal proximity is essential. (See Candelaria v. EG & G Energy Measurements, Inc. (10th Cir. 1994) 33 F.3d 1259, 1261-1262 [three-year time gap insufficient as a matter of law]; see also Oliver v. Digital Equipment Corp. (1st Cir. 1988) 846 F.2d 103, 110-111 [discharge two and one-half years after EEOC filing insufficient to show causation].) This is not such a case. The County knew about the qui tam litigation since January 2004, yet Rogers was not disciplined until two years later and was not terminated until the summer of 2007.
We conclude that Rogers failed to produce substantial evidence of a causal link between the County's adverse employment action and the qui tam litigation. 2. Pretext.
Although the above analysis would be sufficient to affirm the judgment, we also conclude that the County advanced legitimate reasons for its employment decisions and Rogers did not rebut this showing with evidence that the reasons were a pretext for retaliation.
The County made an impressive showing that Rogers was disciplined and finally terminated for objective, nonretaliatory reasons. Rogers pursued the qui tam litigation for more than two years before any personnel action was initiated by the County. In January 2006, when it came to the attention of his superiors that he was spending working hours and misusing county resources to further the litigation, he was given a warning letter directing him to stop. The letter had no effect, as Rogers continued to work on his litigation at the County's expense, all the while insisting he had a right to do so.
Rogers's improper use of county time and property was, however, just the tip of the iceberg. Since November 2006, Gilberti had been observing serious deficiencies in Rogers's work performance. He failed to demonstrate initiative or leadership in projects, exercised poor judgment and was discourteous to his supervisor and other team members during meetings, and made inappropriate use of a county letterhead in personal legal correspondence and litigation against the County, despite being counseled against it.
Andrews, chief of the division, testified in his deposition that he received complaints from at least three doctors and a nurse practitioner that Rogers was not communicating with them about patient care or assisting them in providing care of the patients. One doctor even questioned Rogers's competency based on the decisions he was making.
In May 2007 Rogers was given a poor job evaluation and recommendations for improvement. Soon thereafter, he was given a written reprimand, citing discourteous treatment, neglect of duty, and willful disobedience. When Gilberti met with Rogers to discuss the reprimand, he responded in an unprofessional and inappropriate manner and told her to "grow up."
Inundated by burgeoning evidence of unprofessional behavior, lack of initiative, discourteous behavior and willful disobedience of his supervisors, the County finally terminated Rogers in August 2007.
Since the County produced ample evidence that its reasons were nonretaliatory, it was incumbent upon Rogers to come forward with "'"substantial responsive evidence"'" that the proffered reasons were pretextual. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see also Morgan, supra, 88 Cal.App.4th at p. 68.)
Pretext may be found where the employer has given shifting, contradictory, implausible, uninformed or baseless justifications for its actions. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant); Chin, supra, ¶ 7:462, p. 7-84.8 (rev. #1, 2010).)
Although close temporal proximity between the protected activity and the employer's decision may also sometimes support an inference of pretext (Chin, supra, ¶ 7:808, p. 7-134 (rev. #1, 2010); Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112), as discussed ante, the timing here militates against, not in favor of, an inference of retaliation.
Rogers claims he produced sufficient evidence to show pretext. He asserts evidence of pretext can be found in the disciplinary documents themselves, both of which cite Rogers's engagement in "protected activity related to his [CFCA] lawsuit." However, as we have explained, this argument conflates Rogers's pursuit of his lawsuit (which is protected), with the inappropriate use of county time and resources he devoted to it while being paid as a medical consultant (which is not protected). None of the cited documents refers to his pursuit of the qui tam litigation as a ground for discipline or dismissal.
Rogers characterizes the timing of Gilberti's performance review and reprimand as suspicious and thus indicative of pretext. He asserts that although he was hired in 1999, he had never received a performance review until May of 2007; that Gilberti admittedly drafted the letter of reprimand before the evaluation was given to him; that he was "given only 12 1/2 work days" to complete the corrective action plan recommended by Gilberti in her May 4 evaluation; and that Gilberti gave him no "support or training" to implement its stated goals. We are not persuaded.
First, Rogers's claim that complaints about him mysteriously surfaced and led to a sudden dismissal distorts the record. Complaints about Rogers's inappropriate use of county computers, stationery and fax machines date back to late 2005. Concerns about deficiencies in his performance arose at least as early as November 2006, when Gilberti delivered a "Duty and Standards" statement outlining expected job responsibilities as a medical consultant. By April 2007, Gilberti had compiled a list of incidents showing Rogers's poor judgment, discourteous behavior and dereliction of duty. Finally, her letter of reprimand on May 7 had no effect on Rogers, who continued to display a cavalier attitude and neglect his job responsibilities.
Furthermore, it must be kept in mind that the critical issue is not whether Rogers was terminated for good cause. As an at-will employee, he could have been fired for an arbitrary reason or even no reason. (Gantt, supra, 1 Cal.4th at p. 1094.) Thus, "[i]t is not enough for the employee [claiming pretext] simply to raise triable issues of fact concerning whether the employer's reasons for taking the adverse action were sound." (Hersant, supra, 57 Cal.App.4th at p. 1005.) Rather, it was Rogers's burden to demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons that a reasonable fact finder could find them "'"unworthy of credence,"'" and thus pretextual. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807, citing Hersant, supra, 57 Cal.App.4th at p. 1005.)
Rogers points out that his opposition papers included the declarations of "four independent employees" who worked with him and never heard the type of complaints Gilberti had about him. However, these declarations came from three account clerks and a case management nurse. None of the declarants was qualified to evaluate the performance of someone in as high ranking a position as Rogers.
Rogers's showing in the trial court was insufficient to create a reasonable inference that the County's true motive for terminating him was retaliation for his lawsuits. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.)
Given the richly documented record of poor performance, insubordination and uncivil behavior on the part of Rogers, no reasonable jury could conclude that the reasons advanced by the County were pretextual. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476; see also Unt v. Aerospace Corp. (9th Cir. 1985) 765 F.2d 1440, 1447 [employee's "well documented performance deficiencies that were of legitimate concern to . . . management" dispelled any inference of reprisal for protected activity].)
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, J. We concur:
HULL, Acting P. J.
HOCH, J.