Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC299723. Elihu M. Berle, Judge.
Benjamin Robinson for Plaintiff and Appellant.
Collins, Collins, Muir & Stewart, John J. Collins, Thomas A. Guterres and Douglas Fee for Defendant and Appellant.
ASHMANN-GERST, J.
Plaintiff and Appellant Betty W. Dunson (Dunson), an African-American, worked for Los Angeles County Department of Children and Family Services (Department) from 1974 through 2005. In 2003, she sued the Department, alleging that it retaliated against her for engaging in activity protected by the Fair Employment and Housing Act (FEHA). The action went to trial and the jury found in favor of the Department. Dunson filed a motion for new trial and a motion for judgment notwithstanding the verdict (JNOV). Both motions were denied. On appeal, Dunson contends that the trial court should have granted her motion for JNOV. After review, we find no error and affirm.
Dunson contends that she filed an appeal with the Civil Service Commission (Commission) in 1990, to complain about race discrimination, and that she otherwise periodically complained to the Department about its discrimination against her. In retaliation, she contends that: (1) the Department disobeyed the Commission’s order to change the rating in Dunson’s 1988-1989 performance evaluation from the revised rating of competent back to the original rating of outstanding; (2) the Department gave Dunson only two performance evaluations from 1989 to 2004; (3) the Department repeatedly gave Dunson low scores on her appraisals of promotability; (4) the Department placed a negative, false statement about Dunson in the executive team’s consent calendar and failed to recant the statement; (5) the Department failed to transfer or promote Dunson to positions for which she was qualified; and (6) the Department failed to give Dunson lower level parking. However, there was substantial evidence that none of these actions were retaliatory.
This list of adverse employment action is taken from the discussion in part IV.B.2. of Dunson’s opening brief, which is entitled “Adverse Employment Action.” Insofar as Dunson contends that the Department took other adverse employment actions, we deem those contentions waived because they were not identified in her “Adverse Employment Action” discussion.
In its cross-appeal, the Department argues that the trial court abused its discretion when it refused to award the Department attorney fees and expert witness fees. We find that the trial court’s ruling was sustainable.
FACTS
Trial on Dunson’s retaliation claim
Protected activity
Jose Lujan (Lujan) testified that he prepared a performance evaluation for Dunson for the year 1988-1989 and rated her performance as outstanding. According to Lujan, Bill Thomas (Thomas) ordered Lujan to change the rating. Lujan refused. Subsequently, the performance evaluation was changed without Lujan’s consent from outstanding to a rating of competent.
In 1990, Dunson appealed her nonappointment to the position of supervising children’s social worker to the Commission. The next year, in 1991, the Commission ordered that Dunson “be properly graded on her performance evaluation to the level of ‘outstanding’ and that she be immediately promoted to the position of Supervising Children’s Social Worker. If that position is not immediately available, the [Department] is to pay [Dunson] at the Supervising Children’s Social Worker level until a position is available.” Subsequently, Dunson was promoted to supervising children’s social worker, but the Department did not revise her rating in the 1988-1989 performance evaluation until 2002.
In 1992, Dunson appealed a low score on an appraisal of promotability to the appeals division of Los Angeles County. In that appeal she averred that her low score was retaliation for her 1990 appeal before the Commission. On September 30, 1997, Dunson wrote a letter to Alvarez Lecesne (Lecesne), a deputy director, complaining about retaliation after negative comments about her were placed in the executive team’s consent calendar. She complained about retaliation in a July 30, 1999 letter, to interim director Sandra M. Davis (Davis), and in an April 4, 2000 letter, to director Anita Bock (Bock). Finally, on July 19, 2002, Dunson filed a complaint of discrimination with the California Department of Fair Employment and Housing (DFEH).
Dunson’s performance evaluations
According to Dunson, the civil service rules require that employees receive a performance evaluation annually. When applying for a new job, an employee is supposed to submit his or her two most recent performance evaluations. After Dunson was given her 1988-1989 performance evaluation, she did not receive another one until 1999. When Dunson applied for jobs between 1991 and 1999, she was unable to submit recent performance evaluations, so she presented commendations. Also, she submitted the Commission’s order directing that the Department change the rating in the 1988-1989 performance evaluation from competent to outstanding.
Irma Cobos (Cobos) prepared Dunson’s 1998-1999 performance evaluation and rated her “[o]verall very good.” Dunson received an overall rating of very good on a 2002-2003 performance evaluation. The rater for that performance evaluation was Sophia Ng (Ng).
Dunson’s appraisal of promotability scores
In 1992, Dunson received a 90 on her appraisal of promotability from Emma Montero (Montero). Dunson appealed the score to Los Angeles County and thereafter met with management. Management recommended that her score be raised from 90 to 100, which resolved the appeal.
Dunson testified that her initial score was 95. However, the appraisal of promotability summary admitted as exhibit 3 at trial states that Dunson’s overall numerical score was 90.
In 1999, Cobos did an appraisal of promotability for Dunson and gave her a score of 90. After discussing the score with Dunson, Cobos wanted to increase the score to 100. However, Rick Sakane (Sakane) told Cobos that the score could not be changed. Dunson was asked if the score was ever changed. She replied: “It was never changed.”
In the reporter’s transcript, Sakane’s name is spelled Sicany, which was identified as phonetic. We opted to use the spelling of Sakane’s name as it appears in the parties’ appellate briefs.
In 2000, Dunson was working in the Department’s contract management section and Armand Montiel (Montiel) was the manager. Dunson applied for the position of administrative services manager III. Montiel gave Dunson a score of 65 on her appraisal of promotability.
When asked what he considered in rating Dunson, Montiel replied: “I used my experience with [Dunson], my knowledge of her as . . . her manager and her supervisor’s manager and my knowledge of her work product, my knowledge of how she performed her duties.”
Montiel was asked if the rating he gave Dunson had anything to do with Dunson’s appeal to the Commission in 1990. He answered in the negative. Furthermore, he testified that he did not know about her 1990 appeal to the Commission until the hearing for the appeal of his rating of her.
Dunson appealed her score internally. The score, however, was not changed. She requested a hearing before the Commission regarding her score but her request for a hearing was denied.
On August 15, 2000, Dunson received a revised test score on her examination to be assistant regional administrator. Her revised score was 100, and she was placed in band 1 for appointments.
The consent calendar
In 1996, Dunson was told she was being promoted and transferred to the contract management section. She asked how she could be transferred without her knowledge. Also, Dunson expressed concern that the position paid less than her current position. She was told that her current position was going to be eliminated. After that conversation, Dunson went to the personnel section to get a grievance form and was asked to speak to the head of personnel, Yvonne Hudson (Hudson). Hudson said that Dunson could not be transferred involuntarily, but she asked Dunson to speak to the interim head of the contract management section, Linda Parks (Parks). Dunson spoke to Parks and Lecesne, the deputy director who reported to the Department’s director, Peter Digre (Digre). Lecesne said he wanted Dunson because of her outstanding writing skills, and that if she transferred she would have an opportunity for promotion.
Dunson transferred on the condition that she retain her pay as a supervising children’s social worker.
According to Dunson, “The consent calendar was a document that was used by the executive team at the top [of] management.” She testified that “[d]ecisions were made on the consent calendar concerning all transfers, promotions, all of the proposed actions of the employees. . . . Other items . . . were discussed on the consent calendar as well, but it was a definite tool for the management [to make] a decision as to whether they would do the demotions, promotions [and transfers].”
In January 1997, Dunson’s name appeared in an item on the consent calendar. The item stated that due to performance problems, Dunson was being transferred from the contract management section.
Dunson asked Lecesne to have the negative statement about her removed from the consent calendar. In some of her correspondence to Lecesne, Dunson stated that she was being retaliated against because of her case before the Commission in 1990. Lecesne stated: “I would not have brought her in to my bureau if I felt she was . . . not competent to do the job.” He added: “I was in charge of discipline for the [Department], and if I found anybody retaliating against anybody, I would have taken administrative action.”
Lecesne believed that either Parks or Jennifer Roth (Roth), division chief, contract management section, wrote the statement on the consent calendar about Dunson’s performance problems. Lecesne did not have the statement recanted because he was told by either Parks or Roth that Dunson did in fact have performance problems. In particular, Dunson was unwilling to take supervision, and she had an attitude problem.
Lecesne was asked: “[D]id you or anyone to your knowledge ever retaliate against [Dunson]?” He replied: “Absolutely not.” He testified that he did not hold any animosity or hostility toward Dunson.
The failure to transfer or promote Dunson
Dunson did not like her job in the contract management section. Three months after starting that job, she requested a transfer. Parks was unhappy about Dunson’s decision. Roth did not want Dunson to transfer but agreed to allow it. Moreover, Lecesne testified that he referred Dunson to a position with Hudson.
On April 10, 1997, Dunson applied to be a program analyst II in the emancipation division of the bureau of specialized programs. She expressed interest in the position via a letter to Brian Berger, director of special services. In lieu of performance evaluations, Dunson submitted a letter of commendation from Amaryllis Watkins (Watkins), and a second letter from Watkins which praised Dunson’s work as community development coordinator. Dunson was not interviewed for the program analyst II position.
On October 14, 1997, Dunson applied to be a supervising children’s social worker, bureau of operations executive office. The job would have been a lateral transfer. Dunson submitted various letters of commendation. Once again, she was not interviewed.
In a letter dated November 14, 1997, Lecesne wrote: “It is my understanding that you still wish to transfer from the [contract management section] to another position consistent with your experience and payroll title. . . . However, your position has continued to be that you want to transfer to an assignment that would not require a title change from [supervising children’s social worker]. [¶] It has come to my attention that you decided not to pursue an assignment under Division Chief Helen Maxwell. You were also provided information regarding other potential assignments including an assignment in our Civil Rights section where the payroll title is Administrative Services Manager I (previously Program Analyst). You chose not to pursue this possible assignment. [¶] You were also made aware of other [supervising children’s social worker] assignments that were open for interview. I have not heard from you whether or not you looked into any of those possibilities. [¶] At this time I have no more suggestions for you regarding a future assignment. It will be incumbent upon you to review all prospective job bulletins and determine whether or not you want to interview for any such positions that might become open.”
On March 23, 1998, Dunson sought a lateral transfer to supervising children’s social worker in the resource development division. Dunson applied to Iris Courtney (Courtney), the program manager. Again, Dunson submitted letters of commendation. She was not interviewed.
Montiel tried to help Dunson transfer out of the contract section. He inquired about transfer possibilities for her, and he encouraged her to apply for openings.
On September 16, 1999, Dunson submitted her application to Edward Windsor for a job as assistant regional administrator, juvenile court services. She did not get an interview. Instead, she received a letter from David Urias, the vacancy coordinator from the recruitment and examinations section, which stated: “Thank you for responding to the vacancy notice for the . . . position. However, because our office has determined that you do not meet the eligibility criteria delineated in the vacancy notice’s ‘requirement information’ . . ., we are compelled to reject your application for this position.” The job was given to Wilhelmina Bradley (Bradley). Previously, Bradley was a children’s services administrator II, and also the section head in special studies.
On July 18, 2001, Dunson applied for the position of assistant regional administrator, adoptions. Montero responded with a rejection letter. The letter stated: “Thank you for your application letter. My management team and I have reviewed your application. We received many qualified applications, and although you were not selected to be interviewed at this time, we will keep your application on file in case our needs change.” Barry Ginsberg (Ginsberg) was hired. When Ginsberg applied, he was already serving as the acting assistant regional administrator, adoptions.
In her opening brief, Dunson contends that she applied for this job on July 18, 2000. However, her application letter, which was trial exhibit 124, is dated July 18, 2001.
Without a citation to the record, Dunson states in her opening brief that she had more seniority than Ginsberg.
In early 2002, Dunson applied to be an administrative services manager III. She received a rejection letter from Michael Henry (Henry), the director of personnel, which stated that Dunson lacked the training and experience requirements that were listed on the job bulletin. In a second letter from Henry, Dunson was informed that her grade was below the 70 percent minimum score required to pass the examination.
On April 19, 2002, Dunson applied to be the supervising children’s social worker, resource development coordinator, in the Wateridge office. Annie Fultz (Fultz), a children’s services administrator I in the Wateridge office, worked as an assistant to Romalice Taylor, the regional administrator. Fultz was told to schedule an interview for Dunson, and did so. However, Dunson did not appear for her interview. Terese Mikele, who was the acting community development coordinator, was given the permanent job because of her experience and knowledge.
Without citation to the record, Dunson avers: “Dunson’s qualifications were equal to or better than [Mikele’s].”
In late 2002, Dunson interviewed for assistant regional administrator at the metro north office. Tedji Dessalegn (Dessalegn) wrote Dunson a letter informing her that another candidate was chosen for the job. Dessalegn, the regional administrator for the metro north office, wanted someone with immediate policy and procedure understanding. She selected the people who were interviewed; in doing so, she relied solely on the materials that the applicants submitted. Dessalegn interviewed 12 people, and Dunson was among that group. Dessalegn recommended Adrienne Olson (Olson), a supervisor in the metro north office, to the Department’s acting deputy director, Marian Fatini. According to Dessalegn, Olson was the most qualified because she “was an immediate supervisor working on the line. She had the line experience which I needed right away, and I also had had a little opportunity to work with her so I knew that she would best fit at that time.”
The failure to give Dunson lower level parking
Dunson requested lower level parking. She asked Montiel for assistance. However, only people with the title of administrative services manager I or higher were permitted to park beneath the building, and Dunson still had the title of supervising children’s social worker. Due to her title, Dunson was not given lower level parking.
Judgment on special verdict
Judgment was entered in favor of the Department.
The judgment recited the special verdict. In the special verdict, the jury found that the Department did not subject Dunson to adverse employment action by failing to promote her.
The July 7, 2005 hearing
The parties convened on July 7, 2005, for a hearing on Dunson’s motion for JNOV and the Department’s motion for attorney fees.
The parties submitted a two-volume appellant’s appendix and a one-volume clerk’s transcript. Dunson’s motion for JNOV was not included, so we cannot summarize her written arguments, if any. Dunson tried to place her motion for JNOV before us in a request to supplement the appellant’s appendix. The request was untimely and denied as such.
Dunson’s motion for JNOV
Dunson’s attorney, Benjamin Robinson (Robinson), argued that Dunson was harmed in her quest for a promotion because she did not have a performance evaluation for 14 of 15 years. He explained that the Commission and the Los Angeles County manual require that employees be given performance evaluations. Allegedly, the Department said that its failure to file the performance evaluation the Commission ordered for Dunson in 1991 was a “snafu.” Robinson claimed: “This was a figment of their imagination. This was something that they created. This [was] their own fiction. We don’t have any evidence of that.” He went on to argue that the Department’s failure to provide a performance evaluation for the 14 other years at issue showed that the Department’s failure to comply with the Commission’s order was intentional.
Next, Robinson pointed out that Dunson had to appeal each time she received an appraisal of promotability. According to Dunson’s attorney, the Department failed to offer a legitimate, nondiscriminatory reason for why Dunson was always forced to appeal to raise her appraisal of promotability scores.
Robinson adverted to the events in 1996 and 1997. Dunson transferred to the contract section but realized she had incompatible skills. She asked for a transfer. In the next couple of months, the Department stated on the consent calendar that Dunson had performance problems.
At this point, the trial court interrupted and stated: “Assuming that everything you say is accurate, nevertheless, the jury verdict came out . . . [¶] 11 to 1 in favor of [the Department.] [¶] [Dunson] claims retaliation. [¶] Let’s say [the Department] did whatever you say [the Department] did. [¶] Are you saying that the evidence is all one way, that all this conduct that [the Department] engaged in was retaliation? [¶] Couldn’t the jury believe that [the Department] did whatever you said it did, but it did it for other reasons and was not retaliatory? Maybe it was a personality conflict or other issues. Maybe it was some other business decisions. [¶] . . . [¶] Is there evidence to support the claim that all this was retaliatory?” Additionally, the trial court asserted that the “question is whether the jury verdict, 11 to 1 in favor of [the Department], was not supported by any evidence . . . with regard to legitimate reason[s] [for the Department’s conduct].”
According to Robinson, the jury never considered whether there was a legitimate reason for the Department’s conduct. Instead, the jury simply concluded that there was no adverse employment action. And, in any event, Robinson claimed that the Department never articulated a legitimate reason for its actions. In his view, the Department’s claim of a “snafu” was a pretext. Also, he argued that the Department did not offer an explanation for what was said on the consent calendar. He then questioned why Dunson was not given an interview for the positions she sought. In his view, the Department never provided a reason for that.
The Department’s attorney, Tomas Guterres (Guterres), argued that the performance evaluation issue was a red herring. Dunson submitted other documents in lieu of performance evaluations with her applications. Further, other people testified that they also did not have up-to-date performance evaluations. Guterres went on to aver that none of the people who made decisions regarding whether to interview Dunson were privy to the consent calendar. Moreover, the evidence showed that there were a number of administrations during the time of the claimed retaliation. First Digre was the director. Then, among others, Davis and Bock were directors. According to Guterres, there was no evidence of nexus between the decisionmakers during the relevant times. Also, there was ample evidence that the people who were promoted were “all stars” who had the proper qualifications.
The trial court asked Guterres whether Dunson was the subject of adverse employment action.
Guterres stated: “Well, your honor, as I have indicated, I think that there was ample evidence that was presented to establish the various reasons for the promotions. [¶] And the jury obviously accepted the fact that the performance evaluations were not a significant factor in promotions because [Dunson] herself testified that she . . . submitted letters of commendation in place of performance evaluations. [¶] And therefore, there would be enough evidence for the jury to consider that the absence of up-to-date performance evaluations or the failure to provide performance evaluations was not an adverse employment action. [¶] . . . [¶] And individuals such as [Andrew Matlock (Matlock)] . . . testified that they would accept alternatives in lieu of performance evaluations because they knew that many of [the Department] employees did not have up-to-date performance evaluations.”
Continuing on, Guterres explained: “In order for it to reach the level of an adverse employment action, there has to be some nexus between the actual actions and why the action is being taken. [¶] And [Dunson] did not establish, and the evidence did not support, the fact that any actions taken by [the Department] were connected to anything. [¶] We have various individuals playing various decision-making roles. [Dunson] has submitted applications to various individuals. These individuals all were making decisions on their own with regard to interviewing processes and who the successful candidate would be on any promotional opportunity. [¶] And there is nothing to establish that management had come down and told them who they couldn’t interview or who they couldn’t promote.”
Before denying the motion for JNOV, the trial court summarized the parties’ positions, stating: “[Dunson], in essence, claims that she presented evidence to the jury of a prima facie case of retaliation, and that [the Department] did not present sufficient evidence of legitimate business reasons for its actions, which resulted in [Dunson] not obtaining the promotion. And there is insufficient evidence to support the verdict in favor of [the Department]. [¶] In contrast, [the Department] asserts that . . . first, [Dunson] failed to meet [her] burden of establishing a prima facie case of retaliation. [¶] And secondly, [the Department] met its burden to establish a lawful business reason for any actions that it may have taken; and that [Dunson] failed to establish that the actions taken by [the Department] were pretextual or motivated by discriminatory animus. [¶] [Dunson] claims that she is entitled to a [JNOV] on the grounds that there’s no substantial conflict in the evidence; there’s no substantial evidence or reasonable inferences drawn therefrom to support the verdict; and the evidence, as a matter of law dictates a determination of all issues in [Dunson’s] favor; and that [the trial court] should disregard the evidence in support of the verdict on the grounds that the evidence is inherently incredible.”
The trial court ruled thusly: “[The trial court] finds that there is substantial evidence to support the verdict. [¶] And specifically, that there is substantial evidence to support the jury’s verdict and the conclusion that [the Department] did not engage in any adverse employment action. [¶] And to the extent it took any actions, they were legitimate business actions. [¶] And some actions that may have been taken may have been erroneous or inadvertent errors, but nevertheless, the verdict is supported by the evidence. [¶] And the inference is then that the actions taken were part of the business operations of [the Department], and they were not in retaliation or as a result of any discriminatory intent.”
The Department’s motion for attorney and expert witness fees
Citing Government Code section 12965, the Department moved for $156,499.10 in attorney fees and $14,649 in expert witness fees on the grounds that Dunson’s retaliation case was frivolous. The motion was denied. In the trial court’s view, there was “no evidence to show that [Dunson’s] case was frivolous or without foundation.”
These timely appeals followed.
DISCUSSION
I.
The Appeal
A. Standard of review.
In reviewing the denial of a JNOV involving questions of fact and disputed evidence, we view the evidence in the light most favorable to the jury’s verdict and consider whether there is any substantial evidence to support the ruling. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284; Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) If the issues presented on appeal are purely legal, such as the application law to undisputed facts or the interpretation of a statute, our review is de novo. (See Trujillo v. North County Transit Dist., supra, at p. 284.)
B. There is no basis for reversing the denial of JNOV.
Dunson’s failure to include her motion for JNOV in the appellate record precludes meaningful review. We cannot properly assess what arguments, concessions or omissions may have been made below. As a result, the trial court’s ruling must be affirmed. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Our analysis could stop here. For the sake of completeness, we offer the following analysis.
Once again, we note that Dunson made an effort to include her motion for JNOV in the appellate record. However, that effort was untimely.
Dunson contends that she is entitled to JNOV because there is substantial evidence that she engaged in protected activity, that the Department took adverse employment action, and its reasons were pretextual.
These contentions lack merit.
1. The elements of a retaliation action under the FEHA.
Government Code section 12940, subdivision (h), which is part of the FEHA, provides that it is unlawful for “any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”
A FEHA retaliation claim requires that “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant’s proffered explanation is merely a pretext for the illegal termination. [Citations.]” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 (Flait).) To establish a prima facie case, a plaintiff must show that she engaged in a protected activity, her employer subjected her to adverse employment action, and there is a causal link between the protected activity and the employer’s action. (Ibid.) Pretext can be inferred from the timing of the employer’s adverse action, the identity of the person making the decision, and the employee’s prior performance. (Id. at p. 479; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [nexus “‘may be established by . . . 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”’”].)
2. The scope of our analysis.
According to Dunson, we must reverse the order denying her motion for JNOV because there was substantial evidence to support her cause of action for retaliatory discrimination. But precedent does not commend this inquiry. The sole question is whether there is substantial evidence to support the judgment in favor of the Department. In other words, Dunson’s task is to prove a negative about the judgment rather than a positive about her claim; she must convince us that the Department did not offer any solid and credible evidence to negate at least one element of her retaliation cause of action under the FEHA.
In her reply brief, Dunson argues that the judgment is not supported by substantial evidence. But “‘[a] point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
3. Prima facie case.
The first question is whether Dunson engaged in activity that was protected under the FEHA. She did. The evidence shows that Dunson filed an appeal with the Commission in 1990, an appeal with Los Angeles County in 1992, wrote letters to Lecesne, Davis and Bock, and filed a complaint with the DFEH. Each of these actions challenged violations of the FEHA.
The next question is whether the Department took adverse employment action against Dunson. Even though the special verdict is to the contrary, we presume arguendo that the Department’s failure to promote or transfer Dunson, the statement on the consent calendar, and the low appraisal of promotability scores were adverse employment actions. We note that the California Supreme Court held that “adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (Yanowitz).) The FEHA protects against “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz, supra, at p. 1054.) Certainly the denial of multiple promotions and transfers, the low appraisal of promotability scores, and the negative statement on the consent calendar adversely affected Dunson’s opportunity for advancement.
We presume that the jury conflated the elements of adverse employment action and nexus. In other words, we presume that the jury found that there was no adverse employment action because the Department did not base any of its decisions on Dunson’s protected activity.
The evidence did not establish that the Department’s failure to change the 1988-1989 performance evaluation, its failure to give Dunson annual performance evaluations or its failure to give Dunson lower level parking, materially affected the terms or conditions of her employment.
Last, we must examine the evidence impinging upon whether there was a causal connection between the Department’s failure to promote or transfer Dunson and her complaints about discrimination and retaliation. If there is substantial evidence that no causal connection existed, then we must affirm the trial court’s decision to deny Dunson’s motion for JNOV.
Nowhere in Dunson’s opening brief does she claim that the Department failed to present evidence to negate nexus. Notably, Dunson’s opening brief contains subheadings that discuss protected activity and adverse employment action, but there is no discussion of nexus between the two. Moreover, her discussion does not advert to any evidence in her favor. Instead, she merely quotes Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1456 (Akers), which cites Boone v. Goldin (4th Cir. 1999) 178 F.3d 253, 256–257. Akers held: “Where an employer reacts to a discrimination complaint by eliminating a reasonable potential for promotion or materially delaying the promotion, there is a legally tenable basis for a jury to find the employer substantially and materially adversely affected the terms and conditions of the plaintiff’s employment. [Citation.]” (Akers, supra, 95 Cal.App.4th at p. 1456.)
In her opening brief, Dunson claimed that “[t]he Department became angry when the Commission ordered it to do the right thing by Dunson. It decided the promotion ordered by the Commission would be her last as long as she was a [Department] employee.” For support, Dunson referred us to trial exhibit 68, which is entitled “Employment History Sheet.” It lists Dunson’s payroll titles from 1974 to 1991. It is not the smoking gun implied by Dunson’s opening brief. No other evidence is cited.
This quote does not assist Dunson’s cause. It does not establish, as a matter of law, that there was a nexus between Dunson’s appeals, letters and complaints about violations of the FEHA and the adverse employment actions. Stated in reverse, it does not establish an absence of substantial evidence to support the judgment. Moreover, we have not been cited any evidence that the Department “reacted” in any particular way to Dunson’s protected activity. At most, in the statement of facts in the opening brief, Dunson states: “[A] reasonable inference can be made of a causal connection between [Dunson] engaging in protected activity and the adverse employment action by the Department.” Even if this is true, it does not eliminate the opposing reasonable inference that there was no nexus to the Department’s adverse employment actions. Thus, it is impossible to say, based on Dunson’s argument, that a trier of fact could not reasonably find a lack of nexus.
The following litany establishes substantial evidence that the Department did not engage in retaliation. There was testimony that, other than Montiel, the raters on Dunson’s appraisals of promotability were willing to change their scores once they talked to her. As for Montiel, he declared that he based his rating on his experience with Dunson. The inference is that none of the raters retaliated against Dunson because they either agreed that a change was proper, or they based their score on nonactionable beliefs. Matlock, the assistant regional administrator for the Wateridge office, testified that people who did not have up-to-date performance evaluations submitted letters regarding past performance in connection with their applications. The inference is that people other than Dunson did not get annual performance evaluations, that she was not singled out, and she was not damaged as a result. Additionally, Dunson’s performance evaluations from Cobos and Ng were overall “very good,” which contradicts Dunson’s contention that the Department intended to block her advancement. The people interviewed and hired for the jobs sought by Dunson often had experience she did not possess. In any event, she was denied transfers and jobs many years after she filed her 1990 appeal with the Commission. Also, there is no evidence that the managers making hiring decisions knew about the letters that Dunson sent to Lecesne, Davis and Bock, and there is no evidence that Dessalegn knew about Dunson’s DFEH complaint, which suggests that there was no nexus to the Department’s actions. Also, Thomas was not the person who denied Dunson transfers and promotions. It was people who had no connection to the 1990 appeal. In fact, Dunson’s superiors indicated that they were supportive of her attempts to transfer. The only reason Dunson was denied lower level parking was because of her title. Finally, the negative statement on the consent calendar was based on the view of Parks or Roth that Dunson had an attitude problem, and that she was unwilling to be supervised. This established that the negative statement was not designed to punish protected activity.
The bottom line is the jury drew inferences from the evidence that favored the Department rather than Dunson. But this was permissible because the evidence for both sides’ positions—in many respects—was circumstantial. The resolution of the questions of fact presented to the jury involved determinations of credibility and the weighing of evidence. The trial court was not in a position to substitute its judgment for that of the jury, and neither are we.
II.
The Cross-Appeal
The Department argues that the trial court abused its discretion when it refused to award attorney and expert fees.
We disagree.
In actions brought under the FEHA, “the [trial court], in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees[.]” (Gov. Code, § 12965, subd. (b).) We review orders under Government Code section 12965 for an abuse of discretion. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1388 (Cummings).)
An award to a prevailing defendant is appropriate if “the plaintiff’s conduct was egregious,” or his or her case was “patently baseless for objective reasons. . . . [Citations.]” (Cummings, supra, 11 Cal.App.4th at p. 1389.) For example, an award may be called for if: (1) a plaintiff engaged in a pattern of filing duplicative and baseless motions to avoid adverse legal rulings; (2) a plaintiff pursued litigation after discovery affirmatively disclosed that his or her FEHA claims lacked factual support; or (3) a plaintiff’s case was “obviously contrary to undisputed facts or well established legal principles specifically precluding recovery.” (Id. at p. 1390.)
This record does not establish that Dunson’s case was frivolous. Though there was substantial evidence that Dunson was not retaliated against, we cannot ignore the contrary evidence.
A review of the record reveals that Dunson is a highly articulate employee with exceptional writing skills. Also, she received numerous letters of commendation, and on multiple occasions her appraisal of promotability score was 100. Dunson’s work was often praised. Even the one time director, Digre, wrote Dunson a letter of appreciation for her work.
Dunson was promoted to supervising children’s social worker, but that was more than a decade and a half ago, and only after the Commission upheld her race discrimination appeal and ordered her promotion. This raises questions as to why she was unable to promote further. Also, we query why she could not transfer to positions she held in the past. We note that when she submitted applications, anybody who reviewed her application was immediately apprised of her 1990 appeal to the Commission. Therefore, the decisionmakers were aware of her protected activity. And Dunson was subjected to a series of rejections that would have driven the best and hardiest employees to their wits’ end. This pattern supports an inference of some sort of institutional animus toward Dunson. Whether it was personal or in retaliation for protected activity, we cannot say. The salient point is that the evidence is not, in every respect, objectively contrary to her theory of liability. And, both sides left many questions unanswered about why Dunson was never promoted or transferred, or why she often was not interviewed. This gap in the evidence adds to the difficulty we perceive in finding that this case was frivolous.
The Department points out that Dunson sued for race discrimination and harassment as well as retaliation. But our reasoning nonetheless applies to the dismissed claims. The evidence gives rise to overlapping inferences. Consequently, it was not unreasonable for Dunson to pursue multiple, related theories and then whittle them down to one theory for purposes of trial.
The Department requested that we award sanctions against Dunson and her attorney for filing a frivolous appeal. We reviewed the motion and concluded that this is not an appropriate case for sanctions.
DISPOSITION
The judgment is affirmed. The trial court’s order denying the Department attorney and expert fees is also affirmed.
The parties shall bear their costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.