Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Super. Ct. No. PC033109. John P. Farrell, Judge. Affirmed.
John P. DeGomez for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Melanie M. Poturica and Alex Y. Wong for Defendant and Respondent Los Angeles Unified School District.
Seki, Nishimura & Watase, Bill H. Seki and Kenneth D. Watase for Defendant and Respondent Rosalba Manrique.
OPINION
VOGEL, J.
A teacher sued her former school district and the principal of her school, alleging various forms of age and race discrimination and claiming she was wrongfully denied an opportunity to teach her preferred grade. The trial court granted the defendants’ motions for summary judgment and the teacher appeals. We affirm.
FACTS
A.
In 1987, Shelley J. Krupin went to work for the Los Angeles Unified School District as an elementary school teacher and, from 1990 to 2000, taught second, third, and fourth grade classes at El Dorado Avenue School. In 2000, Rosalba Manrique became El Dorado’s principal.
In January 2003, Krupin sued the District and Manrique for damages, alleging that she had suffered age and race discrimination. In August, Krupin took a medical leave of absence and never returned to work. In November, Krupin filed her second amended complaint which (as presently relevant) alleged wrongful termination on the basis of age and race (in violation of the Fair Employment and Housing Act, Gov. Code, § 12940 et seq.), retaliatory termination, and a violation of 42 U.S.C. section 1983.
Krupin died while this action was pending, and the administrator of her estate (Barry Antis) has been substituted in her place as plaintiff.
According to Krupin, Manrique arrived at El Dorado with a plan to dismantle its successful English immersion program by soliciting the assistance of El Dorado’s staff “to skew the student census and registration,” hire more bilingual teachers, create more bilingual classes, and “force out” non-Hispanic teachers such as Krupin. To those ends, Manrique allegedly “placed phantom students on the El Dorado rolls and pressured the staff . . . to ‘bring back to life’ students no longer in the district, state, or country.”
When Krupin voiced objections to these actions, Manrique harassed her and created a “hostile environment” to force her and other nonconforming teachers to leave El Dorado. Manrique gave Krupin poor evaluations (they were always positive in the past), made unannounced visits to Krupin’s classroom, and sent “see me” notes to Krupin. At the beginning of the 2001-2002 and 2002-2003 school years, Manrique denied Krupin’s requests to teach specific classes and hired less qualified, non-credential teachers (who were Hispanic and younger than Krupin) to teach those classes.
B.
The District and Manrique filed separate motions for summary judgment. For its part, the District contended Krupin could not prevail (1) because she could not prove that she had suffered a substantial adverse change in the terms or conditions of her employment (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-512), or (2) because Manrique’s actions were based on legitimate factors, not age or race discrimination. For her part, Manrique added that her evaluations and class assignments were immune from Krupin’s attack (because she was discharging her official duties).
Over Krupin’s opposition, the trial court granted both motions.
DISCUSSION
In a series of nine related arguments unsupported by relevant authorities or citations to the record, Krupin contends the trial court should not have granted either motion for summary judgment. We disagree.
Krupin contends “[t]he trial court was required [to] consider the material allegations in the second amended complaint.” We agree in the abstract, but find nothing in Krupin’s brief or the record to suggest the trial court failed to consider the evidence in light of her allegations. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522 [an appellant’s failure to develop an issue with meaningful argument constitutes a waiver of that issue]; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [the judgment is presumptively correct and it is the appellant’s burden to show error].)
Krupin contends “[t]he trial court improperly considered waived affirmative defenses not at-issue or contained in the pleadings.” As we understand it, Krupin means the trial court considered an affirmative defense (exhaustion of administrative remedies) that was not alleged in the defendants’ answers -- but she does not point to anything in the record to support her assertion that this occurred, or to any evidence on either side of the point. In any event, it is clear from the record that the judgment is based on the fact that, assuming wrongful conduct, Krupin did not suffer a substantial adverse employment action (there is no evidence to the contrary). (Thomas v. Department of Corrections, supra, 77 Cal.App.4th at pp. 510-512 [FEHA discrimination claim requires adverse employment action]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051-1055 [retaliation claim requires adverse employment action]; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
Krupin contends “[t]he trial court was required to deny [the] motion[s] for summary judgment given discovery abuses.” Although it appears in her two-paragraph discussion that she is referring to evidence allegedly withheld by the District or Manrique, Krupin does not tell us what that evidence might be or how it could have supported her opposition to the summary judgment motions. The issue, such as it is, has been waived by Krupin’s failure to develop it.
Krupin contends “[t]he trial court misinterpreted [or] misunderstood the allegations and evidence presented.” We disagree. Although the trial court questioned whether there was a particular standard for evaluating a teacher’s experience, that fact has nothing to do with the judgments -- both of which are based on Krupin’s inability to establish that she suffered a substantial adverse employment action.
Krupin contends there was evidence of racial animus by Manrique (a statement by Manrique to the effect that “non-Hispanics are not sensitive to Hispanic students”) and that, therefore, there were triable issues of material fact vis-à-vis her discrimination causes of action. We disagree. Assuming wrongful conduct, Krupin’s inability to establish any adverse employment action defeats her discrimination causes of action. In any event, the evidence relied on by Krupin to show racial animus is insufficient to create a triable issue of fact -- because it is from a witness’s deposition testimony about a conversation between Manrique and another teacher, Dorene Lines-Waldrep (and had nothing to do with Krupin).
Lines-Waldrep (represented by the same lawyer representing Krupin) sued the District, Manrique and another administrator on similar theories and lost. (Lines-Waldrep v. Los Angeles Unified School District (June 24, 2005, B175938) [nonpub. opn.]; Lines-Waldrep v. Los Angeles Unified School District (Oct. 31, 2006, B183511) [nonpub. opn.].)
Krupin contends she can establish both a prima facie case of age discrimination, and a prima facie case of race discrimination. We disagree. Aside from the fact that Krupin does not refer to any evidence establishing the age or race of the teachers who allegedly got the assignments she wanted, the evidence is undisputed that she did not suffer a substantial adverse employment action.
In this context, Krupin tells us that “supporting evidence of . . . material facts (hidden from the trial court) is set forth in [her] two indexes.” There are two problems with this argument. First, we cannot consider evidence that was not presented to the trial court. (Monteleone v. Allstate Ins. Co. (1996) 51 Cal.App.4th 509, 514 [“Appellate review of summary judgment is limited to the facts presented in documents presented to the trial court.”) Second, we do not understand the reference to “indexes.” If Krupin’s reference is to her separate statement, it is not evidence of anything -- it simply explains the relevance of offered evidence to the points made by the moving party. She does not cite to any item of evidence in the record.
Krupin’s remaining contentions -- that her “claim for retaliation is supported by facts,” and that “[t]he trial court improperly struck the entire declaration of Dr. Debbie Gomez, a retained education expert” (on the subject of teacher qualifications) -- fail because, as noted several times above, there is no evidence that Krupin suffered a substantial adverse employment action.
DISPOSITION
The judgments are affirmed. The District and Manrique are entitled to their costs of appeal.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.