Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. BC233210
APPEAL from a judgment of the Superior Court of Los Angeles County, Jane Johnson, Judge. Affirmed.
Law Offices of Ian Herzog, Ian Herzog, Evan D. Marshall; The deRubertis Law Firm, David A. Lesser and David M. deRubertis for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Eric C. Schwettmann and Adrian J. Guidotti for Defendant and Respondent.
WILLHITE, J.
INTRODUCTION
Plaintiff Kristine R. Aronsohn, a former Deputy City Attorney, appeals from judgment granted in favor of defendant the City of Los Angeles (the City) in this action for retaliation in violation of the protections for whistleblowers contained in Labor Code section 1102.5. Aronsohn contends the City retaliated against her after she informed her superiors of her suspicions that a police officer had committed perjury. We conclude that Aronsohn failed to raise triable issues of material fact with regard to the City’s proffered legitimate, nonretaliatory reasons for taking the actions it did. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prior Appeal
This matter was the subject of a prior appeal, which resulted in the issuance of a nonpublished opinion on April 7, 2004. (Aronsohn v. City of Los Angeles (B159812) (Aronsohn I).) In Aronsohn I, this court was called upon to determine whether summary judgment in favor of the City was warranted on the basis that it was immune under Government Code section 820.2 (discretionary act immunity) or section 821.6 (prosecutorial immunity) from Aronsohn’s claims of retaliation in violation of Labor Code section 1102.5. We concluded that discretionary act immunity (Gov. Code, § 820.2) did not apply to the City in this case, and that summary judgment should not have been granted on that basis. We concluded that prosecutorial immunity (Gov. Code, § 821.6) did apply, however not all of the arguably adverse employment actions identified by Aronsohn derived from the formal investigation of the police officer’s complaint and the disciplinary proceedings that followed. Because we found that the City had not demonstrated through undisputed facts that it had legitimate reasons for undertaking the employment actions, we reversed the judgment and remanded the matter back to the trial court for further proceedings.
Aronsohn’s complaint also contained claims for gender discrimination and racial discrimination under the Fair Employment and Housing Act (FEHA), and a claim for “breach of terms of employment relationship.” These claims were resolved by an earlier motion for summary adjudication, and were not at issue in the prior appeal, and of course are not at issue in the present appeal. (See Aronsohn I, supra, at fn. 2.)
II. The Present Appeal
A. The City’s Motion for Summary Judgment
On remand, further discovery was conducted. The City again moved for summary judgment on the sole remaining cause of action for retaliation. The City contended in its motion for summary judgment that the third cause of action for retaliation in violation of Labor Code section 1102.5 failed as a matter of law because Aronsohn could not establish a prima facie case of retaliation in that she did not suffer any actionable adverse employment action based on her complaints regarding perjury by a Los Angeles Police Department officer. In addition, the City contended that the cause of action for retaliation failed as a matter of law because the City had legitimate, non-discriminatory reasons for its actions, and because Aronsohn could not proffer substantial, responsive evidence of pretext. In support of these contentions, the City set forth the following admissible evidence.
1. Aronsohn’s Employment History to July 1998
From July 1995 to June 1999, Aronsohn was employed as a deputy city attorney in the City Attorney’s office. Attorneys in that office were classified by rank (I, II, III, IV, assistant, senior assistant, etc.) and were paid at various steps (1, 2, 3, etc.) in their salary range. Aronsohn was hired as a DCA II, step 3. She was assigned initially to central trials, where she prosecuted criminal matters. She received a merit step increase in June 1996. Aronsohn was assigned to the employee relations unit of the civil litigation branch of the City Attorney’s office in March 1997. The employee relations unit generally handled state and federal employment-related litigation. As of July 1998, Aronsohn was a DCA II, step 6.
2. July and August 1998 Recommendations for Promotion
The merit and promotion process took place in the City Attorney’s Office every two years, and during the relevant times, City Attorney James K. Hahn was responsible for determining promotions and merit salary step increases.
In July 1998, Hahn solicited input from his managers about all deputies who applied for promotions. He received a recommendation in July 1998 from Fred Merkin, a senior assistant city attorney and Aronsohn’s supervisor, that Aronsohn be promoted from DCA II to DCA III and also receive one merit step increase. In August 1998, Peter Echeverria, a chief assistant city attorney, recommended that Aronsohn be promoted from DCA II to DCA III, but that she receive no additional merit step increase.
Merkin said Aronsohn “has been an outstanding addition to the Division. A vigorous and able advocate with a penchant for trial work, she has vigorously and ably defended the City in the discrimination and other cases to which she has been assigned. Her efforts have paid dividends, as indicated by the commendations she has received from Police Department brass. She shows initiative and a positive attitude though working in an operation that has long been considerably understaffed. Her enthusiasm has not flagged even under the often stressful situations in which she has been placed. The additional merit step recognizes the extraordinary time commitment she had made to the Office, for she routinely works long hours.”
Promotions were not guaranteed, even if a supervisor or division head recommended one for an employee. Hahn took into consideration the requests of other attorneys (of which there were over 200) and their prior promotional histories, the overall resources and needs of the office, budgetary constraints, and employee performance.
3. The August 1998 Pickering Incident During the Cochran/Anderson Trial
In August 1998, Aronsohn defended the City in a federal court action brought by two Los Angeles Police Department (LAPD) officers, Anderson and Cochran, in which the officers asserted causes of action for violation of 42 U.S.C. section 1983 and Labor Code section 1102.5, the “California Whistleblower Statute.”
During the course of the trial, Aronsohn cross-examined police officer Ann Pickering. According to Aronsohn, Pickering changed her account of an incident she had previously related to Aronsohn during a pretrial interview, and thereby committed perjury. Later during the trial, Aronsohn questioned Pickering based on information obtained from Pickering’s personnel file.
After Pickering testified, Aronsohn spoke with her in the hallway outside the courtroom. Pickering contended that Aronsohn yelled at her and behaved inappropriately, while Aronsohn denied engaging in such behavior. Counsel for one of the plaintiffs in the Cochran/Anderson trial brought the incident in the hallway to the attention of the trial judge, and also raised the issue of Aronsohn’s having access to Pickering’s personnel file. Aronsohn denied personally accessing Pickering’s personnel file and represented to the court that the information she used to cross-examine Pickering was based on the personal knowledge of police detective Paula Feinmark, who was assisting Aronsohn in the trial.
On September 8, 1998, the jury returned a general verdict in favor of Anderson for $100,000 and in favor of Cochran for $75,000. The court entered judgment and awarded the plaintiffs attorney fees. (See Cochran/Anderson, supra, 222 F.3d at p. 1199.)
The Ninth Circuit reversed the judgment on August 17, 2000, as to the federal section 1983 claim, and remanded to the district court for disposition of the state law claims under Labor Code section 1102.5. (Cochran v. City of Los Angeles (9th Cir. 2000) 222 F.3d 1195, 1202.) In its opinion, the court noted that the City and other defendants were “tardy in filing a motion for summary judgment, and the case went to trial.” (Id. at p. 1199.) The case was settled in March 2001.
4. Pickering’s September 1998 Complaint, and Aronsohn’s October 1998
Complaint
In September 1998, Pickering filed a formal complaint with the LAPD against Aronsohn regarding her cross-examination, accessing Pickering’s personnel file, and acting inappropriately outside the courtroom. In October 1998, Aronsohn filed a written complaint regarding Pickering with Lieutenant Rita Knecht of the LAPD.
5. October 1998 Quinn Trial, and the City Attorney’s Receipt of Pickering’s Complaint
During October 1998, Aronsohn was engaged in trying the case of Quinn v. City of Los Angeles (see Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 475-476). In that matter, a jury found in favor of the plaintiff and awarded $200,000 in damages. The trial court entered judgment on October 15, 1998, and awarded Quinn over $300,000 in attorney fees. (Ibid.)
In an unpublished opinion filed October 30, 2000, this court reversed the judgment.
On October 28, 1998, the City Attorney’s office received Pickering’s complaint, indicating that an investigation was being requested. The complaint was one of several documents sent to the City Attorney’s Office along with the request to investigate Aronsohn’s conduct.
6. November 1998 Creation of Police Division
In November 1998, a new “police division” was created in the City Attorney’s Office to deal with the legal needs of the LAPD in employment law and civil rights liability matters, to begin operations January 1, 1999. Concurrently, the litigation branch of the office was reorganized and reduced in size. Cecil Marr joined the City Attorney’s Office as a senior deputy city attorney on November 10, 1998, to head the police division.
7. Marr’s November 1998 Recommendation that Pickering’s Complaint be
Investigated
Marr was asked in mid-November 1998 to review the file forwarded by the LAPD regarding Pickering’s complaint, and to determine whether an investigation was warranted. Marr conducted preliminary interviews, then recommended that an investigation be conducted, to address the following allegations: (1) that Aronsohn, on or about August 27, 1998, acted unprofessionally and/or inconsistently with the City’s interest during the incident in the hallway with Pickering during the Cochran/Anderson trial; (2) that she misrepresented to the federal district court judge the facts of what transpired in the hallway; (3) that she misstated facts regarding the obtaining of a document used to impeach Pickering, in response to the plaintiff’s attorney’s contention that she had obtained the document from Pickering’s personnel file; and (4) that she misrepresented facts to co-workers, particularly support staff and paralegals, regarding directions she had given, leading to negative working relationships within the employee relations division.
8. November 1998 Denial of Promotion and Merit Increase
On November 17, 1998, Aronsohn was notified that she would not receive a promotion or merit increase. According to then City Attorney Hahn, who was solely responsible for the decision, Aronsohn did not receive a promotion or merit increase based on numerous factors, including (1) that there were more attorneys eligible for promotion than there were budgeted positions, and he was constrained in his ability to grant promotions; (2) the receipt from the LAPD of Pickering’s complaint and Marr’s recommendation that Aronsohn’s conduct should be investigated; (3) Aronson’s losses in the Cochran/Anderson and Quinn cases, which occurred after Merkin’s and Echeverria’s recommendations; and (4) the existence of more qualified candidates for promotion. Hahn did not believe it was appropriate to promote Aronsohn over other deserving deputies while the investigation into possible misconduct was ongoing; there were more recommendations for promotions than promotions available, and there were more qualified individuals who had not received a promotion or merit increase in the 1996 promotional process, while Aronsohn had received a merit increase in 1996.
On November 24, 1998, Aronsohn was temporarily reassigned to work at home, with full pay, during the pendency of Marr’s investigation. The reassignment lasted until December 18, 1998.
9. Aronsohn’s December 1998 Reassignment
On December 17, 1998, Marr recommended that Aronsohn be reassigned out of the employee relations unit, which he termed a high exposure field. His recommendation was based in part on his review of her handling of files.
On December 18, 1998, Hahn transferred Aronsohn to the workers’ compensation branch of the civil division of the City Attorney’s Office. Her pay and rank remained the same.
Hahn based his decision on several factors, including: (1) his opinion that it would be inappropriate to assign her to the new police division in light of Pickering’s complaint, and Aronsohn’s complaint against Pickering; (2) Aronsohn’s division, employee relations (and particularly the litigation unit), was being downsized as part of the restructuring of the civil branch, in connection with the creation of the police division; (3) the selection of the attorneys to be transferred from the employee relations division to the police division had already been made; (4) Marr’s December 1998 recommendation that Aronsohn be reassigned from the high exposure and high risk of employment litigation; (5) Aronsohn’s experience in employment-related matters would be a natural fit in the workers’ compensation unit; (6) Aronsohn’s trial experience would be an asset in the workers’ compensation unit; and (7) the City Attorney’s office had a need for attorneys in workers’ compensation.
10. Aronsohn’s Treatment in the Workers’ Compensation Division
Aronsohn took vacation time for the last two weeks of December 1998, then reported to the workers’ compensation unit on January 5, 1999.
Garrett Kuehn was head of the workers’ compensation division. During the fall of 1998, Kuehn had requested assistance in the workers’ compensation division due to understaffing. He was told in December 1998 that Aronsohn, an experienced trial attorney, was transferring into his division. He was familiar with her from her work in the employee relations division, which often cooperated with the workers’ compensation division given the overlap in the subject matter handled by the two divisions. Kuehn had no input into the decision to transfer Aronsohn. The reason for her transfer was of no concern to him. Kuehn was not informed of Pickering’s complaint against Aronsohn, Aronsohn’s complaint against Pickering, or the ongoing investigation.
Kuehn and his staff were excited to have Aronsohn in the division. Kuehn had received positive feedback about her from others, and he felt her trial experience and knowledge of employment-related matters would be a good fit. He had also been told that she had a background in medical malpractice, which also made her a good fit for the workers’ compensation division.
According to Kuehn, Aronsohn was not given an unusually large caseload. The division was very understaffed and, as a result, each of the 12 attorneys was assigned 300 cases or more. Unlike in civil litigation, in workers’ compensation many of the cases were dormant and required no work, as when a file remained open pending resolution of a lien. The number of actively litigated files was much less than the number of files assigned. Aronsohn also was not assigned an unusually large number of board appearances or depositions. Experienced attorneys in workers’ compensation often made three or four court appearances and handled three or four depositions per week.
The workers’ compensation division was organized on a team concept, whereby a senior attorney, or “trainer,” would work with a less experienced attorney for training and mentoring purposes. The trainer would accompany the less experienced attorney to board appearances and depositions. Based on Aronsohn’s reputation and experience, Kuehn believed she would not require much training to become a solid contributor in the workers’ compensation division. However, she was afforded training opportunities. Aronsohn was placed on a team with Lori Kemp, who trained her, and Kuehn also provided her with guidance and training. Bettina Schendel also provided her with training and assistance. In Kuehn’s experience, the best training for workers’ compensation was simply working the files and cases.
11. Aronsohn’s June 1999 Departure
In June 1999, Aronsohn went out on stress leave, and never returned to work with the City.
B. Aronsohn’s Opposition and Additional Material Facts
Many of Aronsohn’s proffered “facts” in opposition to summary judgment were not facts at all, but improper argument. Further, the trial court sustained certain of the City’s evidentiary objections to portions of her showing. We discuss those rulings, below, and here summarize only the evidence properly submitted, omitting the argumentative portions.
1. The Pickering Incident
According to Aronsohn, before the Cochran/Anderson trial she interviewed Pickering. Pickering denied any knowledge of an incident involving Cochran’s demonstration of a hobble restraint. This incident tended to show that the plaintiffs had mistreated Latino and Black women officers, and was helpful to the City’s defense. Later, at trial, Pickering testified about the hobble restraint incident at length, but in a manner favorable to the plaintiffs. Aronsohn believed that Pickering thus committed perjury, in order to help her colleagues win their case.
When Aronsohn learned Pickering would testify for the plaintiffs as a rebuttal witness, she asked Detective Paula Feinmark, an LAPD liaison who assisted Aronsohn at trial, to “see what [she could] find” on Pickering.
Later, during a break in the trial, Feinmark told Aronsohn about a complaint of misconduct involving Pickering. Aronsohn did not know how or where Feinmark got the information, and had not instructed Feinmark to examine Pickering’s personnel file. However, that file was in fact the source of Feinmark’s information.
Aronsohn then cross-examined Pickering about the misconduct complaint. After Pickering finished testifying, Aronsohn said to her in the hallway, “I’m only going to ask you a question. Are you aware of [Los Angeles Police Chief Bernard] Parks’s latest memo regarding officers who do not testify truthfully?”
When court ended that day, Aronsohn reported Pickering’s suspected perjury to LAPD Lieutenant Rita Knecht, and also mentioned the matter to Merkin. On October 10, 1998, Aronsohn prepared a written report concerning Pickering’s suspected perjury for Knecht.
2. Hahn’s Failure to Investigate Pickering
Hahn never instructed anyone from his office to look into whether Pickering had committed perjury. His “understanding was the police department was conducting its own investigation,” and he did not ask the District Attorney to investigate. Thomas C. Hokinson (the chief of civil litigation who was responsible for all of the litigation divisions) testified in his deposition that generally the City Attorney should investigate allegations that an officer lied under oath. However, Hokinson did not try to determine if Pickering lied under oath, nor did he think it was important to find out. Like Hahn, he believed that the LAPD was investigating Pickering’s alleged perjury. In 2000, after the Rampart scandal, Hahn issued a directive that his deputy city attorneys should report officer perjury.
3. The 1998 Promotion Process
After Aronsohn applied for promotion in 1998, both her immediate supervisor, Merkin, and his boss, Echeverria, recommended that she be promoted and given a raise. Echeverria assured her sometime during the early fall of 1998 that she was approved for the promotion.
Hahn personally made every decision regarding merit increases and promotions for the 1998 promotional process. He considered the deputy city attorney’s application, the recommendation of the supervisor and the branch manager, and the “promotional packet.” Hahn ordinarily relied primarily on the supervisor’s recommendation.
In his deposition testimony, Hahn conceded that he read Merkin’s “glowing recommendation” of Aronsohn and had no reason to disagree with any of it. Hahn stated that “[u]ntil the investigation could be completed, [he] did not believe it was appropriate to promote Ms. Aronsohn over other deserving deputies,” in part because there were more applicants than spots available.
Hahn admitted that, other than overall budget constraints, there was no limit on the number of merit increases that he could give and that these budgetary constraints were no different than any other time he evaluated promotions. He could not say that he considered the prior promotional history of every candidate.
Hahn said Aronsohn was denied promotion in part because she lost two trials, but testified that in making promotional decisions he would look at the candidate’s entire career. He said it was “hard to assign any level of significance” to the Cochran/Anderson verdict. The combination of the adverse verdicts in Cochran/Anderson and the Quinn case played “some small role” in the denial of her promotion. Hahn knew little about the strengths or weaknesses of those cases and took no action to find out. The verdict in Cochran/Anderson was well below the City’s offer at mediation.
Hahn himself noted factors in Aronsohn’s application that militated in favor of a promotion: her willingness to take extra continuing education courses, to work in the employee relations unit which was recognized as being difficult, and to work long hours in the employee relations unit.
Hahn denied Aronsohn’s promotion, after learning of her complaint that Pickering lied, despite the fact both Merkin and Echeverria recommended that she be promoted. Hokinson and Marr also knew that Aronsohn had reported that Pickering lied under oath.
4. The Reorganization, and Aronsohn’s Reassignment
In the fall of 1998, the civil branch was reorganized, in part to create a new police unit to handle police litigation, including employment matters involving police officers. After the reorganization, the employee relations unit “[would] be comprised of several personnel positions from the Employee Relations Division.” “The remaining positions [would] be transferred to the Police Employee Relations Section of the Police Division.” Aronsohn was told that employee relations unit attorneys would either remain in that unit or transfer to the new police unit. Merkin told Aronsohn she would be going to the police unit.
Hahn concluded, however, that “it would be inappropriate to assign [Aronsohn] to the new Police Unit in light of Officer Pickering’s complaint (and her complaint against Officer Pickering) which resulted in [Aronsohn’s] being under investigation.” The City asserted that the complaint originated from “the Management of the Police Department.” Aronsohn noted that the complaint was made by Pickering, a line officer, and not by LAPD management. Hahn did not perceive that the LAPD had a problem with Aronsohn when he decided to transfer her into the workers’ compensation unit instead of the police unit. Hahn did not know whether any of the other deputy city attorneys who transferred into the police unit had complaints made against them, or had made complaints against, a police officer. The description of the qualifications for members of the police unit did not include anything to the effect that complaints by or against an officer involving a deputy city attorney would disqualify that attorney from the position.
5. Evidence of Adverse Employment Action
Aronsohn also addressed at length purported facts demonstrating that her forced transfer to the workers’ compensation unit constituted an adverse employment action. For example, Hahn approved Aronsohn’s transfer to the workers’ compensation unit even though he knew it was “chronically understaffed” and its members complained about heavy workloads. He also knew it was the only unit in the litigation branch in which the deputy city attorneys did not handle jury trials, and he and others knew that Aronsohn liked and wanted to do jury trials. Hahn admitted there were a number of different departments he could have transferred her to, but no effort was made to explore options other than transferring her to the workers’ compensation unit.
The City employees could not cite an example of any other involuntary transfer from the employee relations unit into the workers’ compensation unit, other than Aronsohn.
Aronsohn disputed Kuehn’s assertion in his declaration that he knew nothing about Aronsohn’s past problems when she arrived in his unit. In deposition, he stated that, before Aronsohn joined the workers’ compensation unit, Hokinson “mentioned something about a conflict of interest.” Hokinson indicated that he must have mentioned to Kuehn that they were conducting an investigation. Aronsohn stated that Kuehn immediately warned her that Tim McOsker (chief deputy to City Attorney Hahn) and Hokinson had “preinformed” him about her and “that they were keeping an eye out on” her; she would be “closely monitored based on the problems he had been informed of,” and “he was aware of [her] problems.” McOsker and Hokinson called Kuehn to monitor and check on Aronsohn.
She quickly requested to be transferred out of the workers’ compensation unit. She was told there were openings in central trials, but that the decision from Hahn was that she would not be allowed to transfer.
She contends she was given inadequate training: she had a one-hour meeting with another deputy city attorney, and attended a few appearances with other deputy city attorneys. She did not attend a course on “ratings” as others typically did. Kuehn told Aronsohn he wished he could give her more training.
Aronsohn took time off briefly in May 1999. Before leaving, she was told she would have 225 cases to handle, but upon her return she was assigned approximately 500 cases. Kuehn stated in deposition that he would not have assigned her more than 225 cases because she was not ready for it, and it would create too much stress on her. Kuehn delegated to another deputy city attorney, Lori Kemp, the task of assigning Aronsohn’s caseload, and he could not say whether Kemp increased Aronsohn’s caseload.
On May 28, 1999, Aronsohn gave Kuehn a memorandum detailing her complaints. According to Aronsohn, he summarily dismissed her concerns. On June 8, 1999, Aronsohn met with Kuehn and Kemp. Kuehn criticized her for not trying hard enough, and for missing a meeting, for which she had a legitimate reason that Kemp knew about. Kuehn said he was keeping a secret file on her. Aronsohn left the meeting with high blood pressure. She went to her doctor, who told her not to return to work because of her high blood pressure. Kuehn had come to the meeting prepared to ask her if she wanted to file a workers’ compensation claim.
C. The City’s Reply Papers
The City’s reply included specific responses to Aronsohn’s additional material facts. Notably, the City pointed out that a number of significant issues came to light after Merkin’s and Echeverria’s recommendations which changed the circumstances and led to undisputed, legitimate, non-retaliatory events. In addition, Aronsohn’s assertion that she did not know how or where Feinmark got the information about Pickering was inconsistent with her October 1998 complaint to Lieutenant Knecht, in which she wrote: “I learned through the Department’s examination of her personnel package that Officer Pickering was listed as a witness for Stanley Cochran’s personnel complaints against Lt. Kathy Age on multiple incidents.” However, she told the federal court that “[her] investigator had personal knowledge because of her position of this particular act of misconduct.”
D. The Court’s Rulings Regarding the Existence of Triable Issues of Material Fact
The trial court found that triable issues of fact existed as to whether the City’s denial of a promotion or merit increase, Aronsohn’s transfer to the workers’ compensation unit, and her treatment in the workers’ compensation unit constituted adverse employment action. However, the court also concluded that the City had produced evidence of legitimate, nondiscrimatory reasons for its actions – among other things, the investigation of Aronsohn for alleged unprofessional conduct – and that Aronsohn had failed to produce evidence to raise a triable issue as to whether those reasons were pretextual. Accordingly, the trial court entered judgment in favor of the City. This timely appeal followed.
DISCUSSION
I. The Standard of Review
The standard of review for summary judgment is well established. The motion “shall be granted if 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.” (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his or her burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)
We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review of the evidence, “we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of material fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by plaintiff’s evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiff’s favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).
“‘“To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.”’ [Citations.] ‘The retaliatory motive is “proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” [Citation.] “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.”’ [Citations.]” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70. See also Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258.)
Here, we conclude, that although a triable issue exists as to whether Aronsohn was subjected to adverse employment action, no triable issue exists as to whether the City had legitimate, nondiscriminatory reasons for its employment decisions.
II. Triable Issues Exist Concerning Adverse Employment Action
We need only briefly address the issue whether Aronsohn showed that she was subjected to adverse employment action by the City. Triable issues exist as to whether the series of employment decisions (failure to promote Aronsohn, her transfer to the workers’ compensation division, and her treatment there) constituted adverse employment action. We also conclude that Aronsohn made the very minimal showing required to establish a causal link between the adverse employment action and her protected activity of reporting officer perjury, simply by demonstrating the proximity in time between the protected action and the allegedly retaliatory employment decisions.
III. Aronson Fails to Show Triable Issues As To the City’s Legitimate, Nondiscriminatory Reasons
The City presented admissible evidence of legitimate, nondiscriminatory reasons for its decision not to promote Aronsohn or award a merit pay increase, and for its decision to reassign her to the workers’ compensation unit. Chief among these reasons were the serious allegations of misconduct arising from the Pickering incident and the need to investigate them. Aronsohn’s admissible evidence, on the other hand, fails to create a triable issue whether the City’s reasons were a mere pretext for retaliation.
Because the trial court sustained objections to various portions of Aronsohn’s showing, we begin with a review of the evidentiary rulings as relevant to the determinative issue whether the City’s proffered reasons defeat Aronsohn’s claim of retaliation. We review the rulings for abuse of discretion. (See San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.)
1. Evidentiary Rulings
A. Aronsohn Declaration
The trial court excluded certain portions of Aronsohn’s declaration. In particular, in her declaration Aronsohn stated that in 1996 her supervisor in the central trials unit, Susan Zimber, praised her, and that in 1996 Hokinson asked her to work for him at the Department of Water and Power. Aronsohn contends that the trial court improperly excluded this evidence as irrelevant, because her prior good job performance tended to establish that the City’s reasons for failing to promote her and for transferring her to the workers’ compensation unit were pretextual.
We disagree. Zimber played no role in the decisions at issue. Further, her appraisal occurred in 1996, as did Hokinson’s request that Aronsohn work for him. Hence, this evidence related to a period substantially removed in time from the August 1998 allegations of misconduct that the City cited as part of its justification for its actions. Moreover, evidence was presented that in July 1998 Fred Merkin, Aronsohn’s supervisor, recommended that Aronsohn be promoted from DCA II to DCA III and also receive one merit step increase. Evidence was also presented that in August 1998, the same month in which the Pickering incident occurred, Peter Echeverria, a chief assistant city attorney, recommended that Aronsohn be promoted from DCA II to DCA III, but that she receive no additional merit step increase. Thus, recommendations much closer in time to the alleged misconduct and employment decisions were introduced. On this record, the trial court did not abuse its discretion in determining that the comments by Zimber and Hokinson in 1996 were not relevant to whether Aronsohn’s alleged 1998 misconduct was a mere pretext for adverse employment action.
In her declaration, Aronsohn also described her efforts to improve her trial skills, and her strong desire to do jury trials. The trial court excluded, correctly, all of this evidence as irrelevant on the issue of pretext. That the City transferred Aronsohn to the one unit that did not handle jury trials, knowing that she wanted to try jury cases, might tend to show that the transfer constituted adverse employment action. But it had no relevance to the issue whether the City had legitimate, nondiscriminatory reasons for its employment decisions.
Finally, Aronsohn stated in her declaration that she suffered certain ailments which she and her doctors believed were related to her workplace environment. The trial court correctly ruled that Aronsohn was not qualified to express a medical opinion, and that her recitation of her doctors’ diagnoses constituted inadmissible hearsay. In any event, this evidence was irrelevant to the determinative issue whether the City’s proffered reasons were pretextual.
B. deRubertis Declaration
Aronsohn filed a declaration from one of her attorneys, David deRubertis, to which were attached numerous exhibits. Exhibits C through G were letters of commendation regarding Aronsohn’s job performance. Exhibit R was a letter from Martin Pomeroy of the LAPD to one of Aronsohn’s attorneys stating that he was pleased with her conduct of the Cochran/Anderson case, and that the only complaint against her came from a line level officer (Pickering) that was forwarded for review through the chain of command.
The trial court ruled that exhibits C through F were irrelevant and constituted impermissible hearsay, and that exhibits G and R constituted impermissible hearsay.
Aronsohn contends on appeal that all of the letters were offered not to show their truth but to show the City’s “state of mind,” i.e., its desire to transfer her despite knowing she performed her job well. However, these letters were not authored by anyone involved in making the employment decisions at issue, and they preceded the allegations of misconduct against Aronsohn. Moreover, as we have noted, evidence of the positive recommendations by Merkin and Echeverria was admitted. We conclude that the trial court did not abuse its discretion in excluding the evidence as irrelevant to the City’s “state of mind” in making its employment decisions regarding Aronsohn.
C. Exhibits T-W and Y to the deRubertis Declaration, and the Robbins Declaration
Exhibit T to the deRubertis declaration was the November 20, 1998 memorandum from Marr to McOsker and Merkin, recommending an internal investigation into specified allegations against Aronsohn. Exhibit U was a December 4, 1998 letter from Marr to Dohrmann, Aronsohn’s attorney, responding to his inquiries about Marr’s investigation of Aronsohn. Exhibit V was a June 30, 1999 memorandum from Marr to McOsker transmitting the results of the investigation of Aronsohn. Exhibit W was an April 9, 1999 letter from Dohrmann to Hokinson regarding the chronology of events, and the reassignment of Aronsohn. Exhibit Y was a February 29, 2000 memorandum from Echeverria to Hahn, setting forth his recommendation regarding Aronsohn after her Skelly hearing.
In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, the Supreme Court held that certain civil service employees have the right to notice of charges against them and the right to respond prior to being disciplined.
Aronsohn submitted a lengthy declaration by an expert in workplace evaluations, Michael Robbins, in which he opined that the City’s investigation into the allegations against Aronsohn was plagued by departures from accepted practices and the City’s own protocol. For example, Robbins asserted that it was normal practice for a deputy city attorney’s own supervisor to investigate complaints, but here Marr conducted the investigation; Marr came into the investigation with preconceived, negative opinions about Aronsohn; and the investigation took longer than originally estimated and longer than was necessary, fair, or appropriate.
The City objected that this evidence was irrelevant because the City was immune from liability for any issues arising out of its decision to investigate Aronsohn, its investigation, and the results of the investigation, pursuant to Aronsohn I and Government Code section 821.6. The court sustained the objection, ruling (in part) that our decision in Aronsohn I was law of the case and precluded introduction of the evidence.
Under section 821.6, a public employee “is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
Aronsohn contends that nothing in Aronsohn I spoke to the admissibility of facts regarding the investigation when relevant to a non-immunized claim. Further, citing Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren), Aronsohn asserts that section 821.6 immunity, like the Civil Code section 47 litigation privilege involved in Oren, does not preclude introduction of otherwise immunized evidence when relevant to establish intent or motive.
Regardless of the holding in Oren, the trial court did not abuse its discretion in ruling that the doctrine of law of the case required excluding the evidence. “‘Under the law of the case doctrine, “‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’” [Citation.]’ [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.) In Aronsohn I, we considered whether the trial court erred in denying Aronsohn’s motion to continue the summary judgment proceeding to allow her to conduct further discovery. We held that, “[s]ince many of the ‘essential facts’ allegedly needed to justify the requested continuance related to the investigation and formal disciplinary action taken, the [trial] court was justified in considering whether those actions could properly be raised in [Aronsohn’s] retaliation claim.” (Aronsohn I at LEXIS pp. 33-34, italics added.) Because section 821.6 prosecutorial immunity applied, we held that “no claim could properly be based on the formal disciplinary proceedings or the reprimand that resulted from them. The court did not err in refusing to continue the motion [for summary judgment] to allow further discovery in that area.” (Aronsohn I at LEXIS p. 38.) We thus held that Aronsohn was not entitled to further discovery with regard to the investigation because she was not entitled to rely on facts relating to the conduct of the investigation in support of her retaliation claim. That decision necessarily meant not simply that the facts of the investigation could not be used as the gravamen of liability, but rather that the facts of the investigation could not be used at all. Our ruling is law of the case, and the trial court did not abuse its discretion in so concluding.
Aronsohn was permitted to conduct further discovery on remand (supra, at p. 42), but not in order to gather evidence regarding the investigation to use to support her retaliation claim.
We note that Aronsohn has failed to argue that any exception to the law of the case doctrine applies in this case. Therefore, that issue is forfeited. In any event, even were we to depart from the doctrine of law of the case and agree with her contention that Oren requires consideration of the evidence on the issue of motive, we would nevertheless conclude that the evidence was insufficient to create a triable issue concerning the City’s proffered reasons for its employment decisions regarding Aronsohn.
D. Lesser Declaration
The City objected to the declaration of Attorney Lesser, offered by Aronsohn to provide a statistical and legal analysis regarding promotional documents produced by the City Attorney’s office. The City objected that the declaration lacked a proper foundational showing that Lesser was qualified to undertake any type of statistical analysis, that it amounted to lay opinion testimony, and constituted improper expert testimony to the extent he purported to offer the legal opinion that similarly situated city attorneys were promoted or otherwise treated differently than Aronsohn.
The court ruled as follows: “The court can consider the underlying data, but it is not certain that [Aronsohn’s] counsel properly computed the data. The summary should not be considered.” The City’s objections to paragraphs 4 through 12 of the Lesser declaration were sustained, as lacking foundation.
On appeal, Aronsohn contends that Lesser’s declaration was merely a summary of simple calculations of the promotional data—not opinions but simply factual data, computed by use of simple arithmetic. We disagree.
For example, Lesser purported to use the data to assert that applicants who were less qualified than Aronsohn received an award. According to Lesser, 13 of the 38 deputy city attorneys (34.21%) who were only recommended by either their supervisor or the branch manager, but not both, received an award. Similarly, Lesser noted that 42.6 percent of applicants who received an award in 1998 also received an award in 1996, and a portion of those failed to receive a recommendation in 1998 from either their supervisor, branch manager, or both. Such use of the promotional data constituted a qualitative evaluation of the evidence, not simply a quantitative one. Lesser was not qualified as an expert to offer such opinions. He was not using simple arithmetic to calculate damages, (cf. Maggio, Inc. v. United Farm Workers (1991) 227 Cal.App.3d 847, 871-876), but was attempting to use statistical analysis of promotional data to demonstrate that the City harbored a retaliatory motive. The court correctly sustained the City’s evidentiary objections to Lesser’s declaration and summary, while permitting use of the promotional documents themselves.
Furthermore, such a comparative analysis did not take into account whether any of the other applicants for promotion were under investigation for professional misconduct at the time the awards were decided.
E. Freed Declaration
Aronsohn asserted that another deputy city attorney, Evan Freed, suffered retaliation for revealing officer perjury. Aronsohn requested that the court take judicial notice of Freed’s declaration filed in his lawsuit against the City Attorney’s office for retaliatory dismissal. Based on the City’s objection that it constituted hearsay, was not a proper subject of judicial notice, was not a matter of common knowledge, and was reasonably subject to dispute, the court denied the request for judicial notice.
On appeal, Aronsohn contends that the declaration was a court record, and was not hearsay but instead was based on Freed’s personal knowledge. She contends that the statements attributed to Hahn by Freed were authorized admissions, as were statements purportedly made to Freed by his supervisors, Susan Zimber and Bernie Brown.
We conclude that the Freed declaration was not a proper subject of judicial notice. “Judicial notice may be taken of the following matters . . . [¶] (d) Records of (1) any court of this state . . . [¶] (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452.)
Although Freed’s declaration purported to be based on his personal knowledge, it was offered for the truth of the matters asserted therein. “A court cannot take judicial notice of hearsay allegations as being true simply because they are part of the court record or file. It has been said that a court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. . . . While judicial notice may be taken of the records of a state court, this is not [to] say that notice may be taken of the truth of facts asserted in every document in a court record.” (31 Cal.Jur.3d ([database updated Dec. 2007]) Evidence, § 45; fn. omitted. See, e.g., Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056. See also Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-146.) Further, to the extent Freed purported to state in his declaration what Zimber and Brown said to him regarding Hahn’s alleged indication that he would not tolerate reporting of police officer perjury, this constituted multiple hearsay, and there was an insufficient showing that Zimber and Brown were authorized to speak on behalf of Hahn. (Cf. O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563 [deposition testimony by manager as to vice-president’s statement was admissible as authorized admission regarding company policy]. See also Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 70-71.) Finally, judicial notice was improper because Freed’s assertions of fact were certainly subject to dispute.
F. The City’s Legitimate, Nondiscriminatory Reasons, and Aronsohn’s Inability to Raise Triable Issues of Fact Demonstrating Pretext
Having determined that the trial court properly excluded specified evidence offered by Aronsohn in opposition to the City’s motion for summary judgment, we turn now to consider whether Aronsohn presented triable issues of material fact sufficient to defeat summary judgment.
In defense of a lawsuit claiming prohibited employment practices, an employer may offer legitimate, nondiscriminatory reasons for its employment decisions. The framework for so-called “pretext” cases includes three steps. “First, it is the plaintiff’s burden to prove by a preponderance of the evidence a prima facie case of discrimination [or retaliation]. Second, if the plaintiff proves the prima facie case, then the burden shifts to the defendant to provide some legitimate nondiscriminatory [and nonretaliatory] reason for its employment decision. Third, if the defendant carries this burden, then the plaintiff must have an opportunity to show by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination [or retaliation].” (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1749-1750 [discrimination]; see also Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613 [retaliatory discharge in violation of public policy].)
The City presented evidence that the employment decisions regarding Aronsohn – the November 1998 denial of promotion and merit increase, and the December 1998 reassignment to the workers’ compensation division rather than the police unit – were based on legitimate, nondiscriminatory reasons. Chief among these reasons was Aronsohn’s August 1998 conduct in the Pickering incident, the investigation of which was not resolved before the decisions were made. Aronsohn disputed whether she knowingly used information from Pickering’s personnel file and whether she misrepresented her conduct to the federal district court judge trying the case. Aronson did not, however, dispute the essential facts of her conduct. Undisputed evidence showed that she cross-examined Pickering on information that did, in fact, come from Pickering’s personnel file. She then confronted Pickering in the hallway outside the courtroom and (in substance) accused her of perjury. She also later represented to the district court that the information used to cross-examine Pickering was based on her investigator’s personal knowledge rather than the personnel file. These undisputed facts raised serious, legitimate issues concerning the propriety of Aronsohn’s use of confidential information from Pickering’s file, her judgment in confronting Pickering in the hallway, and the truthfulness of her representation to the district court judge as to the source of the information used to cross-examine Pickering. Hence, the City had strong reason in November 1998 to withhold a promotion and merit increase to Aronsohn, and strong reason in December 1998 not to assign her the police unit where she would be dealing with LAPD officers on issues of employment law and civil rights liability.
Because the City presented legitimate reasons for its employment decisions regarding Aronsohn, “the presumption of unlawful discrimination ‘simply [dropped] out of the picture.’ [Citation.] [¶] Consequently, the burden shifted to [Aronsohn] to ‘produce “substantial responsive evidence” that the employer’s showing was untrue or pretextual. [Citation.]’ [Citations.] ‘To avoid summary judgment, [Aronsohn] “must do more than establish a prima facie case and deny the credibility of the [City’s] witnesses.” [Citation.] [She] must produce “specific, substantial evidence of pretext.” [Citation.]’ [Citation.] We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) “As several federal courts have stated: ‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
In contending that she raised a triable issue, Aronsohn asserts that Hahn’s deposition testimony constitutes direct evidence that he retaliated against her for reporting Pickering’s alleged perjury. Hahn testified at deposition that his decision to transfer Aronsohn to the workers’ compensation unit was based in part on his belief that “it would be inappropriate to assign [Aronsohn] to the new Police Unit in light of Officer Pickering’s complaint (and her complaint against Officer Pickering) which resulted in [Aronsohn’s] being under investigation.” Aronsohn contends that this testimony constitutes a direct admission by Hahn that Aronsohn’s report of Pickering’s alleged perjury was a motivating reason for the denial of her promised transfer to the police unit. However, Aronsohn unreasonably parses Hahn’s testimony rather than reading it in context. Hahn was simply stating his belief that it was unwise to transfer Aronsohn to the police unit given Aronsohn’s and Pickering’s conflicting and then unresolved complaints, which created serious issues concerning Aronsohn’s judgment and professionalism. Indeed, on the undisputed facts of the incident, those issues are self-evident. No reasonable trier of fact could conclude that Hahn was saying that Aronsohn’s report of perjury, in and of itself, was a motivating reason for his decision.
Aronsohn attacks the validity of the City’s reliance on the Pickering incident by charging that City was duplicitous. That is, according to Aronsohn, the City’s initial representation that Pickering’s complaint originated from LAPD management was a falsehood. It is true that Hokinson stated in a memorandum to Aronsohn that the complaint originated from the management of the LAPD when it actually originated from Pickering. However, this statement was hardly a material falsehood undercutting the credibility of the City’s stated concerns about Aronsohn’s conduct. Pickering’s complaint was forwarded for review through the LAPD chain of command, which then transmitted the complaint to the City Attorney’s Office. Hence, the City received the complaint from LAPD management, though technically speaking it did not originate there. This minor nuance does not suggest that the City was using the Pickering incident as a cover for retaliation.
Aronsohn dismisses as “inherently unbelievable” the notion that a single complaint from one of 9,000 officers disqualified her from working with other officers in the police unit. Aronsohn fails to acknowledge the significant lapses of judgment and professionalism suggested by her use of confidential information to cross-examine Pickering, by her accusing Pickering of perjury in the hallway, and by her inaccurately telling the district court judge that the source of her information was the personal knowledge of her investigating officer. The police unit was created to represent the LAPD in the areas of employment law and civil rights liability. Hahn could reasonably determine that Aronsohn’s conduct in the Pickering incident might cause friction between her and other LAPD officers, or interfere with their confidence in her, thereby undercutting her effectiveness as an attorney in the police unit. He could also reasonably determine that concerns about Aronsohn’s alleged lapses in judgment and professionalism cautioned against assigning her to a new unit that was just getting off the ground.
Aronsohn asserts that her conduct in the Pickering incident could not justify the City’s decisions. She points to the results of the City’s investigation, and claims she was ultimately cleared of wrongdoing. Of course, the ultimate conclusions of the investigation do not dissipate the serious issues that existed when the employment decisions were made. In any event, although the most serious allegations (improperly accessing confidential information and lying to the district court about it) were not sustained, the investigation nonetheless found serious lapses in Aronsohn’s judgment and professionalism, thus tending to support, rather than undercut, the validity of the City’s concerns.
Regarding Aronsohn’s confronting Pickering in the hallway, the City’s investigation concluded that “there were alternative avenues available, of which Ms. Aronsohn is aware, to pursue allegations of misconduct against Officer Pickering. The hallway confrontation need not, and should not, have occurred.”
Aronsohn attempts to show that circumstantial evidence raises a triable issue whether her protected report of perjury was a motivating reason for the alleged pattern of systematic retaliation. She asserts that comparative evidence showed more favorable treatment of those who did not report officer perjury, and that the promotional data provides evidence that Aronsohn was treated less favorably than others similarly situated. However, this evidence is insufficient to create a triable issue, in that Aronsohn cannot show that she was similarly situated to, or more qualified than, deputy city attorneys who were not under investigation for misconduct. Likewise, Merkin’s and Echeverria’s recommendations, made before the serious issues of misconduct arose, cannot create a triable issue concerning the legitimacy of the City’s asserted reasons, which largely derived from her misconduct and the obvious concerns it raised.
Aronsohn asserts that aside from the Pickering incident, Hahn’s reasons for not promoting her were full of contradictions, weaknesses, and inconsistencies. The additional reasons cited by Hahn included Aronson’s losses in the Cochran/Anderson and Quinn cases, which occurred after Merkin’s and Echeverria’s recommendations, and the existence of more qualified candidates for promotion. Aronsohn asserts Hahn’s reliance on her losses in the Cochran/Anderson and Quinn trials conflicts with his testimony that one should evaluate an employee’s entire track record. Aronsohn points out that Hahn knew nothing about the merits of the two trials, and both verdicts were reversed on appeal. She asserts that the verdict in Cochran/Anderson was hundreds of thousands of dollars below the City’s settlement authority, and notes that in her criminal trials she had 40 guilty verdicts and only one not guilty.
Of course, the question is not whether Hahn’s purportedly flawed secondary reasons might pass muster in themselves, but rather whether the City’s evidence as a whole, considered in context, demonstrated legitimate, nondiscriminatory reasons for the employment decisions of which Aronsohn complains. No doubt the verdicts in the Cochran/Anderson and Quinn trials standing alone say little about Aronsohn’s abilities. But in light of the overarching concerns about Aronsohn’s professionalism and judgment raised by the Pickering incident, it was not unreasonable for Hahn to question whether the results of the trials might be due in part to similar lapses in judgment and professionalism in presenting the City’s case. In any event, the cited weaknesses in Hahn’s subsidiary reasons do not create triable issues regarding his primary reason: the self-evident concerns about Aronsohn created by her conduct in the Pickering incident.
Aronsohn contends that her treatment in the workers’ compensation division was “the fatal blow to any so-called legitimate reasons.” She asserts that she was denied training, subjected to excessive scrutiny, and given a caseload double what it should have been and at a level that Kuehn admits would cause her to fail. Aronsohn vastly overstates the probative value of her evidence.
She did not dispute that the workers’ compensation unit was understaffed and overworked, and chronically in need of attorneys. She also did not dispute that Lori Kemp, not Kuehn, was responsible for assigning her workload. The evidence showed that Kuehn delegated to Kemp the task of assigning Aronsohn’s caseload, and he could not say whether Kemp increased Aronsohn’s caseload. Aronsohn offered no evidence that Kemp harbored a retaliatory intent or that she gave Aronsohn a heavy workload at the behest of upper management. Thus, there is no evidence to show that Aronson’s treatment in the workers’ compensation unit was in retaliation for her having reported Pickering’s alleged perjury.
Indeed, the court sustained Aronsohn’s objection to Kuehn’s statement that plaintiff was not given an unusually large case load while in the workers’ compensation division, and that she was not assigned an inordinate number of board appearances or depositions during her employment in the workers’ compensation division. The court ruled the statements were lacking in foundation.
Finally, Aronsohn asserts that Hahn contemplated running for mayor, wanted the support of the Police Protective League, and feared that the League would react negatively to accusations of officer perjury. Therefore, according to Aronsohn, Hahn had political motivations for punishing deputy city attorneys for reporting officer perjury. Such speculation that Hahn harbored a political motive to suppress allegations of officer perjury does not create a triable issue. It has no reasonable tendency to show that the serious questions about Aronsohn’s judgment and professionalism created by her conduct in the Pickering incident were mere pretexts for retaliation.
Considering the whole picture demonstrated by the undisputed evidence, Aronsohn has failed to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the City’s proffered legitimate reasons for its employment decisions, such that a reasonable trier of fact could find them unworthy of credence and hence infer that the City did not act for the asserted nonretaliatory reasons. Summary judgment was properly granted as to Aronsohn’s sole remaining cause of action for retaliation.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: EPSTEIN, P. J, MANELLA, J.
Aronsohn argues that it may be inferred from the allegedly flawed investigation that the City “was looking for reasons to terminate Aronsohn.” To defeat summary judgment, however, Aronsohn was required to produce evidence from which a reasonable trier of fact could conclude not merely that the City wished to terminate her, but that the City’s wish was motivated by her report that Pickering committed perjury. As we explain below, the undisputed evidence of Aronsohn’s conduct in the Pickering incident raised serious concerns about Aronsohn’s judgment and professionalism. The manner in which the investigation of Aronsohn’s behavior was conducted has no reasonable tendency to undermine the legitimacy of those concerns. Even if the later investigation of Aronsohn’s conduct was flawed, the commission of the conduct itself was undisputed. On its face, that conduct created substantial, legitimate reasons for not giving Aronsohn a promotion or step increase and for not reassigning her to the police unit.
As to the use of information from Pickering’s personnel file, the investigation concluded that it was not clear that Feinmark (Aronson’s investigating officer) told her that she had obtained the information about Pickering from Pickering’s personnel file. “She [Feinmark] may well have, but the record does not support the conclusion that Ms. Aronsohn had the information and chose to lie to the Court about it. However, before using any such document or information Ms. Aronsohn could easily have determined the source of the document or information by asking, and should have done so. Knowing the source of such documents and information is basic, indeed critical, in trying a legal matter. . . . Failure to ascertain the origin of such information before using it in trial is a serious lapse for a trial attorney, and demonstrates a lack of professionalism.”
Concerning Aronsohn’s description of her conduct to the district court judge, the investigation stated that Aronsohn “ignores that her account to the Court is inconsistent with the account provided by her own investigator. Such inaccuracies, intentional or not, about an incident which she appears to have instigated in the first place, affect her credibility before the Court and have an impact on how other members of this office are received by the Court. . . . Admittedly, this was a very difficult case with very difficult opposing counsel, but the incident and the subsequent need to comment before the Court could have been avoided by Ms. Aronsohn in the first place by exercising better judgment and following a more appropriate course of conduct.”
Finally, in deciding that Aronsohn would be disciplined by receiving a written reprimand, the investigation concluded that “[e]ach of the instances referred to in the three charges, separately and collectively, constitute unprofessional conduct which is contrary to the interests of the City.” Thus, although the more serious allegations about Aronsohn were not sustained, the investigation confirmed her poor judgment and unprofessional conduct. The results certainly did not, as Aronsohn suggests, wholeheartedly endorse her behavior. Nor do they create a triable issue whether the concerns about her conduct at the time of the relevant employment decisions were simply a pretext to punish her for making an allegation of officer perjury.
The court found, however, that there also was no proof that she was assigned 500 cases in the workers’ compensation division. She stated as much at deposition, but offered no other evidence in support. There is no indication what portion of those cases were dormant. In any event, this evidence did not suffice to show retaliatory intent.