Opinion
B220645
10-03-2011
THOMAS ENCINAS, Plaintiff and Appellant, v. BRENT BURTON et al., Defendants and Respondents.
Litt, Estuar, Harrison & Kitson, Genie Harrison and Stacey R. Brown for Plaintiff and Appellant. McCune & Harber, Christy L. O'Donnell and Heather M. Bean for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC377343)
APPEAL from a judgment of the Superior Court of Los Angeles County, Conrad R. Aragon, Judge. Affirmed in part and reversed in part.
Litt, Estuar, Harrison & Kitson, Genie Harrison and Stacey R. Brown for Plaintiff and Appellant.
McCune & Harber, Christy L. O'Donnell and Heather M. Bean for Defendants and Respondents.
Plaintiff and appellant Thomas Encinas appeals from a judgment following an order granting summary judgment in favor of defendants and respondents Brent Burton and the County of Los Angeles in this action arising from Encinas's reports of misconduct. Encinas contends: 1) triable issues of fact exist as to his cause of action for a hostile work environment based on widespread favoritism shown to Black employees in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); 2) triable issues of fact exist as to his claim of retaliation in violation of the FEHA; 3) Burton can be held individually liable for retaliation under the FEHA; 4) the trial court erred by excluding certain evidence; 5) the trial court erred by sustaining a demurrer to his cause of action for violation of Labor Code section 1102.5 (the whistleblower statute) without leave to amend and subsequently refusing to allow leave to amend based on newly discovered evidence; and 6) the amount of costs awarded was excessive.
We conclude that no triable issues of fact exist as to the causes of action for a hostile work environment or retaliation under the FEHA. However, the allegations of the complaint that Encinas was subject to adverse employment actions as a result of reporting conduct to his employer which violated criminal statutes were sufficient to state a cause of action for violation of Labor Code section 1102.5. The demurrer to the cause of action for violation of Labor Code section 1102.5 should have been overruled. Therefore, we reverse the judgment with directions.
FACTS AND PROCEDURAL BACKGROUND
Encinas's Verbal Report of Misconduct
Encinas is Hispanic. He began working as a firefighter for the Los Angeles County Fire Department (LACFD) in 1994 or 1995. In August 2005, Encinas was assigned as the captain of the "A" shift at Fire Station 170. Encinas's supervisor was Battalion Chief Roy Dull.
Burton, who is Black, was the captain of the "B" shift at Fire Station 170. Burton was also the president of the Stentorians, an organization founded by Black firefighters of the Los Angeles City and County Fire Departments to address discrimination and segregation in the fire department. Burton's supervisor was Battalion Chief Deborah Lawrence.
During the relevant period, Dull and Lawrence reported to Assistant Chief James Powers. Powers reported to Deputy Chief Tommey Glenn Massey. Massey reported to Chief Deputy Michael Dyer or Chief Deputy Gary Lockhart. The chief deputies reported to Fire Chief P. Michael Freeman.
In June 2006, Encinas asked Burton's supervisor Lawrence to arrange a meeting with Powers. Lawrence told him to submit a written request. In writing, Encinas requested that Lawrence arrange a meeting with Massey. Encinas also made three verbal requests to the supervisor of the "C" shift, Battalion Chief Dave Thies, for a meeting with Massey.
Encinas met with Dull and Powers on July 3, 2006. Encinas reported numerous violations of the LACFD's Standards of Behavior by members of the B shift and Burton's failure to follow Los Angeles County Workplace Violence Guidelines. He also made a general statement that members of the B shift had committed acts of harassment toward the members of the fire station who were trying to curtail B shift misconduct. If Dull or Powers had asked Encinas to describe the harassing conduct, Encinas would have related, as an example, incidents when Firefighter Specialist Louis Gonzalez drew caricatures of members of the fire station, placed cut-out pictures of penises in the caricatures' faces, and posted the offensive material on the fire station bulletin board. Dull and Powers instructed Encinas to document violations and actions of which he became aware.
On July 6, 2006, Encinas told Burton about the substance of his meeting with Dull and Powers. He invited Burton to report the misconduct by the B shift to Lawrence and provide documentation. On July 8, 2006, Encinas and Burton discussed the matter again and Burton refused to submit a report. Burton said "'he was untouchable and would not be disciplined because of his personal relationship with Deputy Chief Massey and Deputy Chief [Daryl] Osby.'" Massey and Osby are Black. Encinas responded that he would circumvent Massey and notify Freeman of the violations directly by using a particular form. Burton responded, "As president of the Stentorians, I meet with the Fire Chief on a regular basis. Who do you think he is going to believe, me or you?" Encinas replied that they would find out, because he intended to document the violations and provide the information to Freeman.
On approximately July 10, 2006, Encinas reported his conversation with Burton to Dull, including Burton's specific remarks. Encinas told Dull that he planned to report misconduct at the fire station despite Burton's intent to use his position as a Black employee in the LACFD and president of the Stentorians to undermine his report. Dull said Burton would use his network of resources to retaliate against Encinas. Dull instructed Encinas to create a paper trail by documenting any violations that he became aware of and sending confirmation e-mails to Burton about any conversation that they had, including a copy to the battalion office. Dull instructed Encinas to maintain a professional manner and operate within the LACFD's Standards of Behavior, so the members of the B shift would have nothing to use against him. Encinas reported incidents to Burton and sent confirming e-mails.
Burton's Grievance
On September 4, 2006, Burton filed a grievance alleging that Encinas had created a hostile work environment by demonstrating disrespect of others through threatening statements and defamatory remarks in violation of the LACFD's Standards of Behavior. Burton alleged that Encinas made disrespectful comments during the conversation on July 6, 2009. In addition, on August 4, 2006, Encinas told a firefighter that he hated the B shift. On September 4, 2006, Burton arrived for a shift change and Encinas said, "There she is." Encinas told him that he needed to "man up." When Burton asked what he was talking about, he responded, "Do I need to go down the list again?" Encinas accused Burton of being responsible for a new fire engine being moved to another fire station. Burton told Encinas to get his facts straight, and Encinas said he had his facts straight. As Encinas walked out the door, he added, "Your guys are bailing on you. You can't keep a fucking crew." Burton requested that Encinas be removed from Fire Station 170.
Dull provided a copy of Burton's grievance to Encinas. Dull and Encinas agreed that Burton's grievance was retaliation for Encinas's effort to report misconduct by the B shift.
Expressly in his capacity as president of the Stentorians, Burton requested a meeting with Freeman to discuss Encinas's behavior at Fire Station 170. On September 8, 2006, Burton met instead with Dyer, who was acting chief, and Lockhart. Burton told them that he was there in his capacity as the president of the Stentorians and not as a captain. As the president, he felt he had an obligation to inform them of the potential political embarrassment of an incident that Encinas had with firefighter Ryan Watson in May 2005. He stated that Watson was the nephew of Congresswoman Diane Watson. Burton also stated that he had informed his father, who was the congresswoman's consultant, not to call her or get involved yet, but rather to give the LACFD an opportunity to handle it. Burton requested that Encinas be transferred out of Fire Station 170. Dyer and Lockhart did not agree to transfer Encinas, but said they would look into the matter with Massey and expedite the investigation. Burton never discussed Encinas with Freeman and had no further meetings with Dyer or Lockhart.
Burton solicited and submitted statements from B-shift personnel concerning Encinas's behavior. A statement was obtained from Watson that in May 2005, Encinas ordered him to leave an exercise room by saying, "Today, this room is for people who [have] six years or more on the job," and to "go and clean something." Several firefighters provided statements corroborating that during a meeting with the B shift in May 2006, Encinas explained his expectations of behavior at the fire station and said "I will shove my boot up your ass" and "I will grab you by the back of the neck and drag you to my office."
On September 21, 2006, Burton sent an e-mail to Lawrence describing a conversation that Encinas had with a firefighter who wanted to bid the B shift. According to Burton, Encinas said, "We tell it to you straight, we are not pussies." Encinas has also purportedly said he is paid to be an "asshole," made negative remarks about Firefighter Specialist Gonzalez's character, and said Burton's management of the B shift was negative and defaming. Lawrence forwarded Burton's e-mail to Powers the following day. She noted that she was offended by the derogatory references to women that Burton reported Encinas making.
Powers recommended to Massey that Encinas be reassigned to another fire station to prevent any further incidents between Encinas and the B-shift personnel. Dull was not consulted, but his opinion was that both Encinas and Burton should be reassigned to prevent the situation from escalating. Massey made the decision to reassign Encinas to another fire station.
Encinas's Reassignment and Written Reports to LACFD
At Massey's direction, on September 22, 2006, Powers sent a notice stating that Encinas was assigned to Fire Station 68 as of Monday, September 25, 2006. A battalion chief subsequently told Encinas that he was detailed from Fire Station 170 to Fire Station 68 as of the next shift. This transfer would have required Encinas to work with Burton's previous subordinates who were involved in violations that Encinas had reported.
On the morning of September 25, 2006, Powers issued a correction stating that Encinas was assigned to Fire Station 38. That assignment would also have required Encinas to work with Burton's previous subordinates who were involved in violations that Encinas had reported. Encinas used leave time rather than work at Fire Station 38.
Encinas met with his union representative, Dave Lopez, on September 25, 2006. Encinas reported the conduct at the fire station, including Burton's "race-based threats," Burton's actions in furtherance of his threats such as the grievance against Encinas, and the reassignment order. Lopez contacted Massey. Lopez expressed his view that both Encinas and Burton should be reassigned. He also explained the issue created by detailing Encinas to Fire Station 38.
On September 26, 2006, Massey sent an e-mail to Lopez explaining that Encinas was transferred because of statements received from various personnel. He noted that he had not received any statements indicating problems with Burton's demeanor or language. He added, "Due to the issue raised concerning Captain Encinas's detail to Fire Station 38, I will move him to another station."
At Massey's direction, Powers sent a notice that Encinas was assigned to Fire Station 36 as of Friday, September 29, 2006. A few hours later, however, Powers sent a notice that Encinas was assigned to Fire Station 2 as of Thursday, September 28, 2006. Encinas worked at Fire Station 2 for approximately 20 or 30 days.
Also on September 26, 2006, Encinas provided a written statement to Dull in response to Burton's allegations that he was rude during the shift change on September 4, 2006. At the end of the statement, Encinas wrote, "Furthermore, I believe that this grievance filed by Captain Burton is an act of retaliation for an informal meeting that took place on July 3, 2006 with [Assistant Chief] Powers and [Battalion Chief] Dull. During this meeting, I reported violations of the Standards of Behavior, failures to follow 'Workplace Violence' Guidelines and harassment by Captain Burton and his subordinates. It was approximately three (3) weeks later that I shared this conversation with Captain Burton and offered him the chance to disclose these violations/actions and forward any supporting documentation through channels prior to me making official notifications. At that time, he stated to me that given his personal relationships with Deputy Fire Chief Massey and Deputy Fire Chief Osby, he is 'untouchable and that I could not do anything about it,' implying to me that it would be stopped at that level. I then stated that if that was the case, I would use an F-703 to inform Fire Chief Freeman. He then stated, 'As president of the [Stentorians], he meets regularly with me and who do you think he will believe? Me or you?' [¶] Since that time, Captain Burton has made every attempt to misrepresent statements, twist the facts and the focus of the issues, created a hostile environment for members at Fire Station 170, all in an effort to continue to suppress the truth/facts with regards to his actions/inactions and those of his subordinates and the negative affect they have had for some time on fire station operations." Encinas provided a second written statement that day responding to a different allegation of Burton's grievance.
On October 17, 2006, Encinas wrote a memorandum to Freeman. He stated, "The purpose of this memo through channels is to officially notify the [LACFD] and all respective chief officers of numerous and serious violations that have occurred at Fire Station 170 on the B shift under the direct supervision of Captain Brent Burton. In addition, I am making official notification of the threats made to me and retaliatory actions taken against me by Captain B. Burton since I advised him of the course of action that I intended to take when he refused to take the required steps to properly address and report the violations himself." Encinas noted that in his meeting with Dull and Powers on July 3, 2006, he reported "violations of the Standards of Behavior, failures to follow the Workplace Violence Guidelines, harassment by Captain Burton and his subordinates and misappropriations of County monies and resources."
Encinas explained that Burton refused to disclose violations to his supervisor and Encinas said he intended to report them to Dull. "At that time, Captain Burton stated to me that given his 'personal relationships with Deputy Fire Chief Massey and Deputy Fire Chief Osby, he is untouchable and that I could not do anything about it,' implying to me that these violations would be stopped at that level and that no investigation or disciplinary action would be involved. I then stated that if that was the case, I would exercise my right and use an F-703 to inform Fire Chief Freeman. He then stated, 'As President of the [Stentorians], I meet regularly with the Fire Chief. Who do you think he will believe, me or you?' Because the two Deputy Chiefs mentioned by Captain Burton are both African-American, and the organization to which Captain Burton referred to is comprised of African-American firefighters, it is clear that he was threatening to draw upon his African-American political connections to both avoid the consequences of his conduct and to retaliate against me if I did not back down and allow his dereliction of duty to continue unchecked." Encinas noted that Burton had retaliated by filing a baseless grievance against him.
Encinas listed more than 30 acts of misconduct by Burton and the B shift, such as: "arson fires" inside and outside of the Fire Station, including burning a sofa that was the personal property of an employee without permission and setting a fire in a trash can that damaged the recreation room and was covered up with black paint; setting off illegal fireworks inside the fire station that damaged the carpet; raising a black "pirate" flag on the flag pole during the B shift, instead of the United States and California flags, and not lowering it until a citizen complained; destroying the station's barbeque with baseball bats without reason and refusing to replace it; deliberately wasting numerous house items during food fights; having alcohol in the station; and having women in the station regularly after 8:00 p.m. Encinas specifically noted that Firefighter Specialist Louis Gonzalez broke a window in the recreation room with a baseball bat, used a chain saw to make "plunge cuts" in the garage doors because he was upset, broke into another employee's locker and used spray paint inside it, and destroyed a cabinet by beating it with a vacuum cleaner, then threw the glass doors onto Crenshaw Boulevard in traffic lanes. Under Burton's direction, "Light Force 170" regularly left the jurisdiction for more than an hour to travel to Burton's private residence to check on his remodeling project, leaving the City of Inglewood and surrounding communities with extended response times or no truck coverage.
On October 24, 2006, Powers wrote a memorandum to Massey recommending that Encinas receive a demotion in rank for repeated violations of the LAFD's Standards of Behavior. He relied on the three instances of demeaning language that Burton reported which were substantiated by other personnel, a six-day suspension in 1999 for violating the LACFD's Standards of Behavior, a notice of instruction in April 2005, to use courtesy and respect in response to a citizen complaint, and recent counseling by Dull on interpersonal relations and compliance with the Standards of Behavior. He sent the memorandum to human resources department employee Ronald Wu to ask if the proposed punishment would be defensible before the Civil Service Commission.
Wu responded to Powers that a reduction in rank would not be defendable. Pursuant to the guidelines, the maximum penalty for an issue of courtesy and respect was 15-30 days for a third offense. To jump from a six-day suspension in 1999 to a reduction in rank would be difficult to defend. On November 3, 2006, Wu advised Massey and Powers that a 15-day suspension was appropriate based on the reported incidents and Encinas's history.
Encinas's Grievances and Subsequent Events
Encinas filed two grievance forms on November 10, 2006. The first grievance objected to his reassignment from Fire Station 170 as "[u]nfair and punitive action taken against me prior to a comprehensive investigation being completed." Encinas requested immediate reassignment to Fire Station 170 or for Burton to be transferred as well until an investigation was completed.
The second grievance was for racial discrimination, threats, harassment, and retaliation by Burton. Encinas attached a detailed description of events that was identical to the information provided directly to Freeman, including Burton's statements, Encinas's perception of the statements, and the misconduct at issue. Encinas requested immediate reassignment to Fire Station 170 and Burton's transfer to a 40-hour assignment pending an independent, unbiased investigation. The supervising battalion chief at Fire Station 2 noted on both grievance forms that he was unable to resolve the matter at his level.
On November 21, 2006, an LACFD employee from a different region sent a notice that Encinas was assigned to Fire Station 158 as of December 1, 2006.
On November 27, 2006, Powers wrote that he was unable to resolve Encinas's transfer grievance at his level, because the decision to transfer Encinas had been made by Massey. On the discrimination grievance, Powers wrote that he had asked Encinas to waive the time limits due to the complexity of the grievance and Encinas agreed. No further action was noted on either grievance form. That same day, Massey told Wu to proceed with a 15-day suspension of Encinas.
On December 15, 2006, however, an employee in human resources directed Wu not to proceed with the suspension, because Encinas might have a whistleblower case due to his allegations about conduct at Fire Station 170. On December 22, 2006, at the request of the LACFD, Public Interest Investigations, Inc. (PII), began an investigation of Encinas's misconduct allegations.
In March 2007, Encinas filed a complaint with the Department of Fair Employment and Housing. He stated that in July 2006 and September 4 and 22, 2006, he was harassed and removed from his assignment because of race/color and for reporting violations. He described the reason for the discrimination as follows: "I reported to the Administration numerous department violations and potential criminal actions by Burton's subordinates and his failure to report these actions. I was [retaliated] against after reporting these violations."
Encinas was reassigned to Fire Station 116. In April 2007, while he was on injured status, an LACFD employee sent a notice stating that Encinas was reassigned to Fire Station 164 as of April 9, 2007.
On April 11, 2007, PII completed its investigation and provided a report to the human relations department of the LACFD. PII investigated 57 allegations in the areas of arson, fires and fireworks, property damage, and conduct of personnel and supervisors. PII found many of Encinas's allegations to be true, including that: a fire took place in the recreation room that was concealed by repainting the ceiling tiles; a fire occurred in the bathroom that was not reported; a sofa disappeared under circumstances from which PII inferred it had been set on fire; fireworks were set off inside the fire station that damaged the carpet; food fights were a repeated problem at the fire station and B-shift personnel wasted house food items during food fights; B-shift personnel destroyed the fire station barbecue with some type of blunt object; B-shift personnel deliberately broke station dishware that was the property of the County; a plunge cut was made into the garage door; Firefighter Specialist Gonzalez broke the glass doors of a cabinet and threw at least one of the doors into the street; Gonzalez drew cartoons of a firefighter who complained about B shift conduct as a rat and cartoons of other non-B-shift personnel in a similar manner and posted them on the station board; alcoholic drinks were found under the coffee counter following the B shift; a black pirate flag was raised on the flag pole during the B shift; and Burton had taken Light Force 170 to his home outside the jurisdiction of Fire Station 170 without authorization. The report listed Penal Code and/or Health and Safety Code sections that had been violated by each act.
PII also found that Burton failed to properly supervise members of the B shift. Burton did not provide truthful answers during the investigation, provided evasive and indirect answers to questions that he would have been expected to know the answer to, and provided some false answers. PII also found that Lawrence provided incomplete and evasive answers, as well as omitted knowledge that she had of certain incidents.
Burton received a 15-day suspension based on the findings of the PII report. However, Burton appealed and the suspension was reduced to 3 days.
On April 26, 2007, Encinas submitted a notice of his claim against a government entity for damages. The claim contained the same information as Encinas's memorandum to Freeman and described the retaliation that Encinas had suffered as a result of his efforts to have misconduct addressed.
Encinas was involuntarily permanently assigned to Fire Station 75. However, in December 2007, Encinas requested a transfer to Fire Station 125, which was granted.
Complaint
On September 11, 2007, Encinas filed a complaint against Burton, the LACFD, and the County, for several causes of action, including retaliation in violation of the FEHA and retaliation in violation of the County's whistleblower ordinance (L.A. County Code, § 5.02.060) and Labor Code section 1102.5. The complaint alleged that Encinas met with Powers and Dull to report numerous violations of LACFD's Standards of Behavior, failure to follow the Workplace Violence Guidelines, and harassment by Burton and his subordinates. The complaint listed the violations that were reported in the memorandum to Fire Chief Freemen, including arson fires inside and outside of the fire station, unauthorized destruction of personal property, and threatening, harassing behavior that Burton refused to document. The whistleblower cause of action alleged that Burton and the County had retaliated against Encinas for reporting workplace violations with reprimands and hostile treatment in violation of the whistleblower laws. Encinas attached a copy of his FEHA complaint and his notice of claim against a government entity for damages.
Burton and the County filed a demurrer to all of the causes of action, except retaliation in violation of the FEHA. On December 4, 2007, the trial court sustained the demurrer with leave to amend as to several causes of action, including the whistleblower cause of action. The court noted that an essential element of the whistleblower cause of action was a report of a violation of state or federal statute or regulation. The court found that the complaint alleged Encinas had reported violations of internal rules and policies that did not amount to statutes or regulations. Moreover, the County's ordinance provided administrative remedies and the complaint failed to allege that Encinas had exhausted these remedies.
On January 14, 2008, Encinas filed an amended complaint which alleged several causes of action, including hostile work environment in violation of FEHA, retaliation in violation of the FEHA, and retaliation in violation of Los Angeles County Code section 5.02.060 and Labor Code section 1102.5. The allegations of the whistleblower cause of action were identical to the previous complaint.
The cause of action for hostile work environment alleged Encinas was subjected to workplace harassment that was ratified by the LACFD. The acts constituting harassment included: "[Burton's] statements that he would use his racial position as president of the African-American firefighter's association and his personal relationship with African-American Chief Officers at the [LACFD] against Encinas; [Burton's] statement claiming that he would use his influence as the [Stentorian's] president to influence Fire Chief Freeman to Encinas's detriment; false claims made by Burton in his grievance filed against Encinas; The [LACFD's] decision to detail Encinas out of [Fire Station] 170—rather than Burton—a decision the [LACFD] took without conducting any investigation into the veracity of Burton's grievances; and [the LACFD] detailing Encinas to six (6) different fire stations beginning in September 2006 through September of 2007." Encinas alleged that this conduct amounted to the LACFD communicating to Encinas "that in no event is he to ever question or challenge the actions of an equally ranking officer should that officer happen to be African-American."
Encinas alleged that the LACFD gives preferential treatment to Black employees to the detriment of firefighters who are not Black. Specifically, the cause of action for retaliation in violation of the FEHA alleged in pertinent part: "Encinas engaged in a protected activity when he questioned the propriety of the actions taken or the lack thereof regarding Burton, Burton's subordinates, and Fire Station 170. Furthermore, Encinas engaged in protected activity when he (i) grieved the harassing and discriminatory conduct of Burton, and (ii) challenged through the [LACFD]'s grievance machinery those statements by Burton which were meant to demonstrate to Encinas that the [LACFD] had and would continue to give preferential treatment to Burton, because of his race, to the disadvantage of Encinas and other non-African American officers at the [LACFD]. Specifically, the statements by Burton to Encinas that, given his personal relationships with two African-American chiefs, Deputy Fire Chief Massey [] and Deputy Fire Chief Osby [], he was 'untouchable,' and that Encinas 'could not do anything about it'; and, that statement that, 'As president of the [Stentorians], I meet regularly with Fire Chief Freeman. Who do you think he will believe, me or you?' Though aware that Burton used his race as a means of discriminating against Encinas, the [LACFD] did nothing to assure Encinas that unnecessary preferential treatment and power were being afforded Burton and other African-American officers to the unnecessary disadvantage of non-African-Americans. Rather, following submission of his grievances, the [LACFD] detailed Encinas to six different fire stations beginning in September 2006 through September 2007."
Burton and the County filed a demurrer to the amended complaint. Encinas argued that the alleged FEHA violations satisfied the requirement of a statutory violation to support the cause of action under Labor Code section 1102.5. Encinas also requested leave to amend, which the trial court denied. The trial court sustained the demurrer without leave to amend as to several causes of action, including violation of Los Angeles County Code section 5.02.060 and Labor Code section 1102.5. The court found the misconduct at issue did not amount to violations of statutes or regulations, there was no allegation that Encinas had sought relief under the administrative remedies provided by the county ordinance, and the FEHA protects disclosure of a specific statutory legal violation, while Labor Code section 1102.5, subdivision (b), protects the disclosure of violations of statutes, regulations, or rules generally. Encinas subsequently dismissed two causes of action without prejudice. The remaining causes of action were for hostile work environment and retaliation in violation of the FEHA.
Motion for Summary Judgment
On November 20, 2008, Burton and the County filed a motion for summary judgment, or in the alternative, summary adjudication, on the following grounds: there was no evidence of a hostile work environment under the FEHA; Encinas had not engaged in a protected activity under the FEHA; no adverse employment action was taken against Encinas; and Burton was not individually liable under the FEHA.
On December 18, 2008, Encinas filed a notice of substitution of attorney. On January 15, 2009, the parties stipulated to a continuation of the motion for summary judgment to April 27, 2009, to allow Encinas's new counsel to become familiar with the case. On February 23, 2009, the trial court granted another continuance of the motion for summary judgment to June 1, 2009.
On March 30, 2009, Encinas requested leave to file a second amended complaint adding a new cause of action for retaliation in violation of Labor Code section 1102.5 and a cause of action for violation of Civil Code section 52.1. Encinas's attorney filed a declaration explaining that on June 27, 2008, Burton and the County provided Encinas with an unredacted copy of the PII report. The report confirmed that B-shift personnel took many of the acts that Encinas had reported and listed the provisions of the Penal Code, Health & Safety Code, and Government Code that had been violated.
Burton and the County opposed the motion for leave to file a second amended complaint. On May 15, 2009, the trial court denied Encinas leave to amend, finding that allowing amendment would adversely affect the pending motion for summary judgment, which had been continued twice at Encinas's request.
On September 18, 2009, the trial court granted the motion for summary judgment. On October 16, 2009, the court entered judgment in favor of Burton and the County. Encinas filed a timely notice of appeal from the judgment. In February 2010, the trial court awarded costs against Encinas, and on March 16, 2010, ordered amendment of the judgment by interlineation to state the costs awarded.
DISCUSSION
I. Standard of Review
"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden of showing the court that the plaintiff "'has not established, and cannot reasonably expect to establish, a prima facie case . . . .' [Citation.] On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
II. Harassment Under the FEHA
Encinas contends that a triable issue of fact exists as to his cause of action for a hostile work environment in violation of the FEHA. We note Encinas does not claim that he was harassed based on his race. Instead, Encinas asserts that he was harassed by the LACFD's favoritism of Black employees. The conduct that Encinas relies upon, however, does not constitute a claim for hostile work environment in violation of the FEHA.
A. General Law
It is an unlawful employment practice under the FEHA, "[f]or an employer, . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." (Gov. Code, § 12940, subd.
To establish a prima facie case of a hostile work environment based on race, the plaintiff must show that "(1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [the employer] is liable for the harassment. [Citations.]" (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
"[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected classification]. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.]" (Miller v. Department of Corrections, supra, 36 Cal.4th at p. 462.)
"[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) The harassment "'"cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature."' [Citation.] Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment 'must be assessed from the "perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff."' [Citation.]" (Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 877.)
B. Burton's Comments
Encinas contends that Burton's comments on July 8, 2006, constituted race-based threats of intimidation that conveyed a message of racial favoritism toward Black employees. We disagree.
"'California courts have been guided in their interpretations of FEHA by the federal court decisions interpreting Title VII' of the federal Civil Rights Act (42 U.S.C. § 2000e-2(a)(1))." (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35.) Federal courts have found that title VII does not prohibit a supervisor's favoritism toward an employee based solely on a friendship or other intimate relationship, even when the favoritism disadvantages someone within a protected class. (E.g., Brandt v. Shop 'n Save Warehouse Foods, Inc. (8th Cir. 1997) 108 F.3d 935, 938 [gender discrimination claim failed in light of evidence that supervisor had hired his friend, without consideration of the gender of the applicants]; Neal v. Roche (10th Cir. 2003) 349 F.3d 1246, 1251-1252 [race discrimination claim failed based on evidence that supervisor offered open position to white employee to protect her from a layoff that did not threaten plaintiff's position]; Foster v. Dalton (1st Cir. 1995) 71 F.3d 52, 54, 56 [race discrimination claim failed in light of evidence supervisor changed a job description simply to favor "'fishing buddy'"]; Holder v. City of Raleigh (4th Cir. 1989) 867 F.2d 823, 826 [race discrimination claim failed based on finding that supervisor engaged only in nepotism in hiring son to fill position].)
In Miller v. Department of Corrections, supra, 36 Cal.4th at page 465, our Supreme Court approved the holding in Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1628 that unless special circumstances exist, favoritism motivated solely by an intimate relationship does not constitute sexual harassment or sexual discrimination under FEHA. The Miller court concluded, however, that "an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. [Citation.]" (Miller v. Department of Corrections, supra, at p. 466.)
Burton's comments on July 8, 2006, that he would not be subject to discipline because of his personal relationships and political influence as the leader of an organization formed on the basis of race did not subject Encinas to harassment on the basis of widespread favoritism of Black employees. Burton referred to his personal relationships with certain decision-makers in the LACFD. He did not explicitly refer to his race, nor did he refer to Black employees generally. A trier of fact could not reasonably find that Burton's comments communicated a message of widespread favoritism of Black employees.
Even if Burton's comments could be found to refer to favoritism of Black employees, two isolated comments made after Encinas threatened to report Burton's inadequate job performance do not constitute a widespread or pervasive environment of harassment.
The County is not liable for Burton's comments on July 8, 2006, in any event, because Burton was Encinas's coworker, not his supervisor. (Dee v. Vintage Petroleum, Inc., supra, 106 Cal.App.4th at p. 36 [in many cases, a single offensive act by a coemployee who is not a supervisor is not enough to establish employer liability for a hostile work environment].) The County is not liable for the harassing comments of a coworker unless the County knew or should have known of the racial harassment and failed to take corrective measures. Encinas complained generally about "harassment" in his meeting with Dull and Powers on July 3, 2006. However, he did not refer to any acts of harassment based on race or resulting from favoritism shown toward Black employees. Had Encinas been asked to describe the harassing conduct further, he would not have described harassment resulting from favoritism shown to Black employees. There is no reason that the County should have known of a hostile work environment based on racial favoritism shown to Black employees as a result of Encinas's complaints about the conduct of B-shift personnel on July 3, 2006.
C. Personnel Management Actions
In addition to Burton's comments on July 8, 2006, Encinas bases his cause of action for a hostile work environment on official employment actions that he contends had the secondary effect of communicating a hostile message that Black employees received preferential treatment. However, the actions that he relies upon do not convey this message.
In general, "'[h]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job. [Citations.] . . .'" (Reno v. Baird(1998) 18 Cal.4th 640, 645-646, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) "[C]ommonly necessary personnel management actions such as hiring and firing, job project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management." (Janken v. GM Hughes Electronics, supra, at pp. 64-65.)
However, "some official employment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. [Citation.]" (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 709.) "In Miller, we considered whether evidence of widespread sexual favoritism in the workplace could constitute sexual harassment against the nonfavored employees. We concluded that it could, provided that the favoritism was so severe or pervasive as to alter the working conditions. ([Miller v. Department of Corrections, supra,]36 Cal.4th at p. 466.) Significantly, the favoritism at issue in Miller took the form of official employment actions, including promotions and favorable job assignments given to female employees involved in sexual relationships with a particular male supervisor. (Id. at pp. 452-459.) The Miller plaintiffs, however, were not subject to any demands for sexual favors. (Ibid.)In concluding that the plaintiffs had nevertheless stated a prima facie case of harassment in violation of the FEHA, we stated that widespread sexual favoritism could convey a 'demeaning message . . . to female employees that they are viewed by management as "sexual playthings" or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management.' ([Id.] at p. 451; . . .) This demeaning message, we held, could give rise to an actionable hostile work environment. (Id. at p. 451.)" (Roby v. McKesson Corp., supra, 47 Cal.4th at pp. 707-708.)
"Thus, in Miller the immediate source of the plaintiffs' alleged injuries was the offensive sex-biased message that the supervisor conveyed, not a demotion or an unfavorable job assignment, and therefore the plaintiffs' cause of action was for harassment, not for discrimination. Nevertheless, official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message. Our decision in Miller is wholly consistent with Reno [v. Baird,] supra, 18 Cal.4th 18 Cal.4th at pages 645-647, because it confirms that harassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment. Miller, however, makes clear that in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim. Moreover, in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message." (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 708.)
Encinas relies on several personnel actions to support his claim for a hostile work environment. He contends that his requests to meet with Powers and Massey were denied, while Burton was permitted to meet with Dyer and Lockhart in his capacity as president of the Stentorians. However, it is undisputed that Encinas requested meetings with Powers and Massey in June 2006 to discuss his complaints about B shift conduct and he received a meeting with Dull and Powers in July 2006. Encinas has not shown that he requested a meeting with Freeman, Dyer or Lockhart. The evidence shows that he received meetings with supervisory personnel and he has not demonstrated that any comparable request for a meeting was denied. Furthermore, there is no evidence that Encinas was aware of Burton's meeting with Dyer and Lockhart in September 2006. Incidents that the plaintiff is not aware of cannot affect his perception of the hostility of the work environment. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519, 521.) Therefore, the meeting with Burton did not communicate any message to Encinas. At the meeting, Dyer and Lockhart promised to expedite the investigation into Burton's claims. Expediting an investigation to ascertain the truth of certain allegations does not harass Encinas, nor does it show favoritism to Burton based on his race.
Encinas contends his hostile work environment claim is also based on Powers and Massey's efforts to have Encinas demoted or suspended. However, there is no evidence that Encinas was aware of internal memoranda recommending adverse employment actions. No message was communicated to him by these internal documents and the LACFD decided not to demote or suspend Encinas.
Encinas also bases his hostile work environment claim on the fact that he was transferred multiple times, while Burton was not transferred. A trier of fact could not reasonably conclude that the LACFD communicated a message of widespread favoritism of Black employees or created a hostile work environment based on racial favoritism through these transfers. Although a jury could conclude that favoritism was shown to Burton as an individual, the jury could not find that there was widespread favoritism of Black employees based on the evidence. The trial court properly granted summary judgment as to the cause of action for a racially hostile work environment.
III. Retaliation
Encinas contends triable issues of fact exist as to whether he engaged in a protected activity and was subject to an adverse employment action in retaliation. We disagree.
A. General Law
It is unlawful for an employer to retaliate against an employee because the employee has opposed a discriminatory practice prohibited under the FEHA (the "opposition" clause) or has filed a complaint, testified, or assisted in proceeding under the FEHA (the "participation" clause). (Gov. Code, § 12940, subd. (h); George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489.)
Government Code section 12940 provides in pertinent part: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [¶] . . . [¶] (h) For any employer, labor organization, employment agency, or person 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. "
"[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '"'drops out of the picture,'"' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
An employee's opposition to conduct that the employee reasonably believes to be discriminatory may constitute a protected activity for purposes of a retaliation claim, "even when a court later determines the conduct was not actually prohibited by the FEHA." (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1043.) "'[T]he mistake must, of course, be a sincere one; and presumably it must be reasonable. . . . But it is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case.' [Citation.]" (Id. at p. 1043, fn. 4, italics omitted.)
"Creation or tolerance of a hostile work environment for an employee in retaliation for the employee's complaining about prohibited conduct is an adverse employment action within the meaning of [Government Code] section 12940[, subdivision] (h). [Citation.] Moreover, an employer's alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under section 12940(h). [Citation.]" (Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 210.)
"[Government Code s]ection 12940[, subdivision] (h) does not specifically address whether an employer can be held liable for retaliation by nonmanagement employees." (Kelley v. Conco Companies, supra, 196 Cal.App.4th at p. 212.) However, "Lawsuits claiming retaliatory employment termination in violation of [the FEHA] are analogous to federal 'title VII' claims (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; hereafter title VII), and are evaluated under federal law interpreting title VII cases." (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)
"In Yanowitz, our Supreme Court cited with approval Gunnell v. Utah Valley State College (10th Cir. 1998) 152 F.3d 1253, 1264 (Gunnell) for the proposition that 'coworker hostility or retaliatory harassment, if sufficiently severe, can constitute adverse employment action for purposes of a title VII retaliation claim." (Yanowitz [v. L'Oreal USA, Inc.], supra, 36 Cal.4th at p. 1061.) In Gunnell, the court held that 'an employer can only be liable for co-workers' retaliatory harassment where its supervisory or management personnel either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it in such a manner as to condone and encourage the co-workers' actions. . . . An employer may not be held liable for the retaliatory acts of co-workers if none of its supervisory or management-level personnel orchestrated, condoned, or encouraged the co-workers' actions, and no such management participation could occur if the supervisory or management-level personnel did not actually know of the co-workers' retaliation.' (Gunnell, at p. 1265, citation omitted; see also Knox v. State of Indiana (7th Cir. 1996) 93 F.3d 1327, 1333-1336 (Knox) [jury correctly instructed that employers can be liable under title VII for coworker retaliatory actions 'when they know about and fail to correct the offensive conduct'].)" (Kelley v. Conco Companies, supra, 196 Cal.App.4th at p. 213.)
"[A]n employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct." (Kelley v. Conco Companies, supra, 196 Cal.App.4th at p. 213.)
"'Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. . . . [T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.' [Citation.] '"[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case-by-case basis, in light of the objective evidence." [Citation.]' [Citation.]" (Kelley v. Conco Companies, supra, 196 Cal.App.4th at p. 214.)
B. Analysis
Encinas contends that he engaged in eight protected activities that support his cause of action for retaliation. We conclude that most of the acts do not constitute a protected activity under the FEHA. In addition, no causal link has been shown between the asserted protected activity and any adverse employment action taken against Encinas by the LACFD.
1. "Harassment" Reported to Dull and Powers on July 3, 2006
Encinas contends that he engaged in a protected activity when he reported "harassment" to Dull and Powers during their July 3, 2006 meeting. We disagree.
"'[A]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee's comments, when read in their totality, oppose discrimination.' [Citation.] It is not difficult to envision circumstances in which a subordinate employee may wish to avoid directly confronting a supervisor with a charge of discrimination and the employee engages in subtler or more indirect means in order to avoid furthering or engaging in discriminatory conduct. As the court explained in Garcia-Paz [v. Swift Textiles, Inc. (D.Kan. 1995) 873 F.Supp. 547], in such circumstances 'the thrust of inartful, subtle, or circumspect remarks nevertheless may be perfectly clear to the employer, and [there is] no evidence that Congress intended to protect only the impudent or articulate. The relevant question . . . is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.' ([Id.]at p. 560.)" (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1047.)
However, "an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination. (See, e.g., Garcia-Paz v. Swift Textiles, Inc.[, supra,]873 F.Supp. [at pp. 559-560] [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.), even where employee acts out of 'an unarticulated belief that the employer is discriminating on the basis of age . . . unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant reasonably believes to be unlawful'].) Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. (See Garcia-Paz at p. 560 ['Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination']; Booker v. Brown & Williamson Tobacco Co. (6th Cir. 1989) 879 F.2d 1304, 1313-1314 [affirming district court's determination that an allegation of 'ethnocism' was too vague to constitute protected opposition under Michigan's antidiscrimination statute].)" (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1046-1047, fn. omitted.)
In this case, Encinas complained of "harassment" during the July 3, 2006 meeting with Dull and Powers. The evidence showed that he complained of harassment in the context of actions by B-shift personnel that harassed A shift personnel in violation of the LACFD's standards of conduct. There is no evidence that Encinas was referring to harassment on the basis of a protected category under the FEHA, such as race, or racial favoritism shown to Black employees by the LACFD. There is no evidence that he believed that he was opposing a discriminatory practice of his employer at the July 3, 2006 meeting. No trier of fact could reasonably find that Encinas's reference to "harassment" on July 3, 2006, in the context of numerous complaints about the behavior of B-shift personnel, put his employer on notice that Encinas was opposing a hostile work environment based on favoritism shown to Black employees. Encinas's complaint to Dull and Powers about "harassment" by B-shift personnel was not a protected activity under the FEHA.
2. Informing Burton of Intent to Report Misconduct
Encinas contends that he engaged in a protected activity when he told Burton that he would report misconduct at the fire station despite Burton's statements that he would not be subjected to any consequences. We disagree.
"By the terms of the statute, . . . not every act by an employee in opposition to racial discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual." (Silver v. KCA, Inc. (9th Cir. 1978) 586 F.2d 138, 141.) "The employee's statement cannot be 'opposed to an unlawful employment practice' unless it refers to some practice by the employer that is allegedly unlawful." (EEOC v. Crown Zellerbach Corp. (C.A.Cal. 1983) 720 F.2d 1008, 1013.) Racially discriminatory conduct by a coworker who is an agent of the employer can be imputed to the employer. (Id. at pp. 1013-1014.)
Encinas opposed his coworker's statements about expected favoritism, but this confrontation did not constitute opposition to an act of the LACFD. Burton was Encinas's coworker, and they held the same rank. Burton was not Encinas's supervisor or an agent of the LACFD with respect to Encinas. There is no basis to impute Burton's remarks to the LACFD. A trier of fact could not reasonably conclude that Encinas opposed his employer when he told his coworker that he would report inadequate job performance and misconduct despite the coworker's statements that the employer would favor him.
3. Discussions with Dull about Burton's Statements
Encinas contends that he engaged in a protected activity when he told Dull on July 10, 2006, about Burton's statements and his intent to report misconduct at the fire station, despite Burton's comments. He similarly contends that he engaged in a protected activity when he and Dull characterized Burton's grievance as retaliation for Encinas's threat to report misconduct at the fire station. We conclude that no protected activity has been shown based on the conversations with Dull.
Encinas reported the remarks of his coworker to Dull. The remarks did not harass Encinas on the basis of his race or another protected category. There is no evidence that Encinas complained to Dull of a hostile work environment resulting from widespread favoritism of Black employees by LACFD. There is no evidence that Encinas complained about any conduct of his employer. A trier of fact could not find Encinas reasonably believed that his remarks constituted opposition to a hostile work environment based on widespread favoritism of Black employees. Encinas's conversations with Dull did not constitute a protected activity.
Even if Encinas's conversations with Dull were protected activities, there is no evidence that Dull related the substance of the conversations to anyone else. The evidence showed Dull was supportive of Encinas and was not consulted in the decision to transfer Encinas. No causal connection has been shown between Encinas's conversations with Dull and any adverse employment action taken against Encinas.
4. Report to Union Representative
Encinas contends that he engaged in a protected activity on September 25, 2006, when he reported the conduct at the fire station to his union representative, including Burton's "race-based threats," Burton's actions in furtherance of his threats such as the grievance against Encinas, and the transfer order. Even assuming the reporting of a coworker's race-based threats to a union representative is a protected activity, there is no evidence that the LACFD was aware of Encinas's discussion with his union representative or that any adverse employment action was taken against Encinas as a result of statements to his union representative.
5. Response to Burton's Grievance
Encinas contends that he engaged in a protected activity when he submitted a written statement to Dull on September 26, 2006, which described Burton's offensive statements to Encinas and characterized Burton's grievance as an act of retaliation. However, a trier of fact could not reasonably find that the September 26, 2006 statement was a protected activity under the FEHA. Encinas refers to harassment, a hostile work environment, and retaliation in the context of the standards of conduct required by the LACFD. There is no suggestion that he is referring to harassment or discrimination on the basis of race or any other protected category. The statement does not refer to Burton's race, does not refer to the race of the people with whom Burton has personal relationships, and does not imply in any way that the LACFD has created a hostile environment through widespread favoritism shown to Black employees. Encinas's written statement on September 26, 2006, did not constitute a protected activity under the FEHA.
6. Memo to Fire Chief and Discrimination Grievance
Encinas contends the memorandum that he provided to Freeman on October 17, 2006, and the discrimination grievance that he filed on November 10, 2006, were protected activities. The memorandum and the grievance both describe Burton's comments and Encinas's belief that Burton threatened to use political connections based on race to avoid the consequences of his conduct and retaliate against Encinas. In our view, the memorandum and grievance do provide support for Encinas's reasonable, good faith belief that he was reporting and opposing unlawful harassment on the basis of race to the LACFD. However, this is not enough to withstand summary judgment without proof of causation.
Encinas was reassigned four times after the memorandum to Freeman and grievance, but he has not shown a causal link between the activities protected under the FEHA and the subsequent transfers. The evidence shows that the transfers were ordered by LACFD personnel other than Powers or Massey. At least one transfer took place while Encinas was off work for an extended period due to an injury. There is no evidence to support a finding the assignments were made in retaliation for Encinas's protected activities.
The trial court properly concluded that Encinas failed to show a triable issue of fact as to his cause of action for retaliation, because he did not show that any adverse employment action was taken against him as a result of his protected activity.
IV. Individual Liability
Encinas contends that Burton can be held individually liable for retaliation under the FEHA. We have concluded that Encinas cannot establish an adverse employment action was taken against him as a result of his protected activity under the FEHA. Therefore, there is no cause to consider whether Burton can be held individually liable for retaliation under the FEHA.
V. Evidence
Encinas contends that the trial court erred by excluding certain evidence. None of the evidence that the trial court excluded relates to our analysis and conclusion on appeal. We need not address the trial court's evidentiary rulings.
VI. Labor Code section 1102.5
Encinas contends the trial court abused its discretion by sustaining the demurrer to his cause of action for violation of Labor Code section 1102.5 without leave to amend, as well as denying his subsequent request for leave to amend to allege causes of action for violation of Labor Code section 1102.5 and Civil Code section 52.1. We conclude that the complaint properly alleged a cause of action for violation of Labor Code section 1102.5.
A. Appealability and Standard of Review
"An order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed." (I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on another issue.)
"'A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] [¶] The complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] The properly pleaded material factual allegations, together with facts that may be properly judicially noticed, are accepted as true. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. [Citation.] [¶] Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. [Citation.] It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. [Citation.] Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. [Citation.] Plaintiff can make this showing in the first instance to the appellate court. [Citation.]' [Citation.]" (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 853-854.)
"[A]s long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well. [Citations.]" (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) " 'Where the complaint is defective, "[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]"' [Citations.] This abuse of discretion is reviewable on appeal 'even in the absence of a request for leave to amend' [citation], and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970 -971.)
B. Applicable Law
"Labor Code section 1102.5, subdivision (b), prohibits an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a statutory or regulatory violation. The purpose of this statute is to '"encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation."' [Citation.]" (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545-1546.)
"To establish a prima facie case for whistleblower liability, a plaintiff must show that he or she was subjected to adverse employment action after engaging in protected activity and that there was a causal connection between the two. [Citation.]" (Hansen v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1546.) A plaintiff employed by a governmental agency, in contrast to an employee of a private employer, does not need to inform another governmental agency in order to qualify for "whistleblower" protection under Labor Code section 1102.5, subdivision (b). (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1312-1313.)
C. Allegations of Operative Amended Complaint
Encinas alleged in his complaint that he reported numerous violations of internal policies and harassment by Burton and his subordinates to Dull and Powers on July 3, 2006. The violations listed in the complaint included arson fires inside and outside of the fire station, unauthorized destruction of personal property, and threatening, harassing behavior that Burton refused to address. Encinas alleged that Burton and the County retaliated against him for reporting these violations with reprimands and hostile treatment in violation of the whistleblower laws.
It is clear from the face of the complaint that Encinas sufficiently alleged a cause of action for violation of Labor Code section 1102.5. The complaint alleges that Encinas reported acts by Burton and his subordinates to his government employer, including arson, unauthorized destruction of the personal property of another, and theft. (See Pen. Code, §§ 451 [arson of a structure], 594 [vandalism], and 484 [theft].) Encinas reported the conduct verbally to Dull and Powers at their meeting on July 3, 2006. He told Burton about his conversation with Dull and Powers, as well as his intent to report the conduct in writing. Burton filed a grievance against Encinas, which Dull and Encinas agreed was retaliation for Encinas's efforts to report and document the misconduct of Burton and his subordinates. Powers was aware that Encinas reported this conduct by Burton and the B-shift personnel prior to Burton's grievance. However, information was gathered in connection with Burton's grievance and used to reassign Encinas only. Encinas's FEHA complaint, which was attached to the complaint in the trial court, noted that the conduct that he reported was potentially criminal.
The complaint sufficiently alleged a cause of action for Labor Code section 1102.5. The judgment and the order sustaining the demurrer to the cause of action for violation of Labor Code section 1102.5 must be reversed. The trial court denied Encinas's motion to amend the complaint on the basis of the pending motion for summary judgment. In light of our conclusion that the judgment must be reversed, the trial court shall upon issuance of the remittitur exercise its discretion as to whether to allow the requested amendment.
VII. Costs
Encinas contends the trial court incorrectly calculated the award of costs. The order awarding costs to Burton and the County was based on their status as the prevailing party pursuant to the judgment that has been reversed. Burton and the County are no longer the prevailing party. The order awarding them attorney fees and costs must also be reversed, and we need not address Encinas's contention that the award was erroneous. (See Gilman v. Dalby (2009) 176 Cal.App.4th 606, 620 ["In light of our conclusion that the judgment must be reversed . . . , it no longer can be said that defendants are the prevailing parties. Accordingly, we must reverse the award of [attorney] fees and costs [to defendants], and thus need not address [plaintiff's] contention that the award was erroneous . . . ."].)
DISPOSITION
The judgment as to the order awarding costs, the order granting summary judgment, and the portion of the order sustaining the demurrer as to the cause of action for violation of Labor Code section 1102.5 is reversed. The trial court is directed to enter: 1) a new and different order overruling the demurrer as to the cause of action for violation of Labor Code section 1102.5; and 2) a new and different order granting summary adjudication of the causes of action for harassment and retaliation in violation of the FEHA. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
KRIEGLER, J. We concur:
TURNER, P. J.
MOSK, J.