Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC381091, Yvette M. Palazuelos, Judge.
Jessica Jackson, in pro. per., for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Pilar Morin, and Jennifer M. Rosner for Defendant and Respondent, Los Angeles Unified School District.
EPSTEIN, P. J.
Jessica Jackson appeals from summary judgment granted against her in her suit against the Los Angeles Unified School District (District) for racial discrimination in violation of Government Code section 12940. (All further code citations are to this code except where another is specified.) We shall affirm the judgment because appellant did not present a triable issue of material fact as to racial discrimination.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was and is an employee of the District as a middle school financial manager, under supervision of the school principal. She was serving as financial manager at Daniel Webster Middle School, a District school, when Kendra Wallace began her service there as principal in July 2005. Appellant is African-American, and Ms. Wallace is Caucasian, as are many of the individuals named in the lawsuit. As financial manager for the school, appellant was tasked with technical supervision of accounting policies and procedures and, particularly, of student body funds. There followed a series of incidents and actions (two of which resulted in a formal disciplinary action against appellant), which led to her eventual transfer to the same position in another middle school, with the same pay and benefits.
(The following paragraphs discuss factual issues raised by the parties. In the trial court and, through a request for judicial notice, appellant has tried to raise an issue about the credentials of Ms. Wallace to serve as principal of the school. We agree with the trial court and the District that this is not an issue with respect to whether appellant suffered racial discrimination. Because it is not, we do not discuss its merits, and we have denied appellant’s request that we take judicial notice of documents she has presented on this subject.)
The first incident occurred in September 2005 when appellant called in sick on the first day of school, which was a “professional development day.” District policy provides that absences due to illness need not be supported by a certificate from a medical practitioner unless the principal so requires. Since September 2, 2005 was a professional development day, the principal did so require; she asked appellant to present the certificate. Appellant complained, and her union intervened on her behalf. Eventually the principal relented and recognized the absence as due to illness rather than vacation.
The next month appellant asked to take a one-day vacation. The request was submitted the day before the day she wanted to take off, and hence was out of compliance with school policy, which requires notice of at least one week. Ms. Wallace denied the request as untimely. Appellant took the day off anyway, but she eventually was paid as a “personal necessity day”.
Several disputes arose over the handling of the school Imprest Fund account. This is a student body fund account used to pay for student-related expenditures. There was a delay in reconciling the fund because of outstanding conference claims, an issue that was later straightened out. Appellant alleges that Ms. Wallace became hostile towards her, in part over reconciling this account, and also over a disagreement with respect to use of the Fund to pay for students to attend a conference at Disneyland. Ms. Wallace sought issuance of a check to pay for the conference, and appellant declined to issue the check because she believed it was an inappropriate use of student body funds. Eventually she was directed to issue the check by the District student body finance fiscal manager, but for a much reduced amount ($372 instead of $3,440). Sometime later, appellant lodged a complaint against Ms. Wallace for improper practices, and she cites this complaint as another basis for the principal’s hostility towards her.
In December 2006, two teachers complained to the principal that appellant had raised her voice at them in front of a student in connection with a fundraising program. The principal counseled appellant with respect to those complaints.
At some point appellant’s assistant expressed an interest in moving to a classroom assignment, and was encouraged to do so by the principal, Ms. Wallace. Ultimately the assistant decided to remain in her position. Appellant cites the principal’s encouragement of the move as an effort to deprive appellant of administrative support.
In January 2007 some 20 girls, all African-American according to appellant, were taken out of class for a meeting to resolve a classroom disturbance. Appellant’s daughter, a student at the school, was one of them. Appellant asked the assistant principal for information about the location of the meeting. He said he was prohibited from giving her that information. Appellant cites this as retaliation against her by the principal.
A confrontation occurred in December 2006 between appellant and a teacher, Ms. Macris. The teacher came to the student store window with a student who sought to receive a prize for grade improvement. Appellant declined to give the student the prize because he had received a similar prize earlier that day. According to appellant, she eventually allowed the student to select a prize, but the teacher proceeded to cause a disruption (throwing papers, snatching a box from appellant, stepping on appellant’s foot, and using profanity against her). According to the District, appellant and Ms. Macris argued in front of the student, and both parties acted inappropriately. (Ms. Macris denied deliberately stepping on appellant’s foot.) The principal admonished both parties, and told appellant to seek an administrator’s help to resolve such conflicts.
There was a verbal altercation in February 2007 between appellant and a building and grounds worker when appellant asked the worker to move some boxes. The worker said he would do it if appellant helped, and she responded that this was not her job. The worker complained that appellant was rude to him, and yelled at him during the confrontation.
A far more serious incident occurred later in February 2007. Appellant’s son, also a student at the school, apparently was involved in some kind of misbehavior. Appellant picked him up after school and, at school and in the presence of other children and staff members, whipped him with her belt. She admitted to having done so, but claimed that she was administering appropriate discipline. School policy prohibits corporal punishment at school. (This is one of the bases for the formal disciplinary action taken against appellant.)
The next day, February 21, 2007, appellant walked beside Ms. Wallace as she was walking to her car. Ms. Wallace said that appellant was making noises, and that she (Ms. Wallace) felt threatened. Ms. Wallace reported the incident, and described appellant as “grunting and growling”, blocking her and being threatening towards her. (This is the other basis for formal disciplinary action taken against appellant.)
A few days later, on February 26, 2007, appellant was given a temporary re-assignment to a regional office of the District. She was there almost two months (to April 20, 2007), during which time she received the same pay and benefits, but was given little work to do.
While in that office, on March 1, 2007, appellant was given a notice of unsatisfactory service, which recommended a 10-day suspension. There was a pre-disciplinary hearing (“Skelly” review; see Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194), following which the discipline was recommended. It was imposed by the District’s Board of Education, resulting in a 10-day suspension without pay for the period May 14-25, 2007. This action is final, since no Code of Civil Procedure section 1094.5 mandate petition was filed.
The adjudication specifies two charges: appellant’s belt-whipping of her son and her actions in walking with Ms. Wallace on February 21, during which she refused to speak, glared at Ms. Wallace, made inappropriate gestures and sounds and when asked “What is it that you want to say to me?”, she responded, “You’ll see.” It also was adjudicated that appellant “failed to attain and sustain an acceptable level of conduct.”
Appellant was reassigned to the financial manager position at another middle school, with the same pay and benefits as before. The reason was that her relationship with the principal and staff at the Daniel Webster Middle School had deteriorated to a point where a transfer was needed, so that it was in the best interests of everyone for her to work at a different school. She filed a grievance over the transfer, which was rejected in a letter advising that the transfer was made to provide her “with an opportunity for a new experience where she can build collegial relationships with school, faculty and staff.” She did not appeal the transfer.
Appellant filed a discrimination charge with the Equal Employment Opportunity Commission on April 25, 2007. The District’s Equal Opportunity Section investigated the charge and found no racial discrimination.
Along with four others, appellant filed an action against the District and several named employees. The lawsuit pleaded 10 causes of action. Through a series of rulings and stipulations, the causes of action against individual named employees were dismissed, the suits by the other plaintiffs were severed, and the charging pleading, the Second Amended Complaint, was reduced to three causes of action against the District: racial discrimination, retaliation, and failure to take preventive steps, all under the Fair Employment and Housing Act. The District brought a motion for summary judgment with respect to these remaining causes of action. After further pleadings and argument, the trial court granted the motion in full, finding that appellant had failed to raise a triable issue of material fact as to race discrimination, and that the District had legitimate non-discriminatory reasons for taking the actions it did. Judgment was entered accordingly, and this timely appeal followed.
DISCUSSION
As noted, this case is before us after a grant of a motion for summary judgment, and judgment in favor of the District and against appellant. (Code of Civ. Proc., § 437c.) The premise of this ordered judgment is that appellant did not raise a triable issue of material fact as to racial discrimination. We review the separate statements of the parties and the cited record for evidence on that issue. The statute under which this action is brought prohibits employers from discriminating in employment on the basis of race and 13 other specified grounds. Race is the only theory under the amended pleading in this case. Racial discrimination includes actions taken in retaliation for an employee’s complaint of race discrimination, and failure to take action to prevent race discrimination. (§ 12940, subd. (a).) But only invidious discrimination is covered. Thus, the statute does not cover every action by an employer which may be subject to criticism as unfair, not factually supported, or even arbitrary; what is required is discrimination based on race (or one of the other specified grounds). Thus, in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 (Guz), our Supreme Court held that the plaintiff claiming an adverse action by his or her employer, and confronted by a motion for summary judgment by the employer, must present a prima facie case that shows, at a minimum, “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion....” (Id. at 355; internal quotation marks and citations omitted.) If the plaintiff presents a prima facie case there is a presumption of discrimination and the burden of producing evidence shifts to the employer to rebut it. (St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506, quoted and followed in Guz.) If the employer presents evidence to rebut the presumption, the presumption disappears and it is up to the plaintiff to present evidence that the proffered reasons are pretextual. (Id. atp. 510; Guz, at p. 356.)
The fact that appellant is an African-American and the school principal as well as many of the staff mentioned in appellant’s papers are Caucasian, is not enough for a prima facie case unless the actions taken are such that it is more likely than not that they were racially motivated. (In this instance, we shall assume without deciding that there is at least a prima facie showing that some “adverse action” was taken against appellant.) The cases present an abundance of methods to make that showing, such as disparate treatment of employees and expressions of racial animus. But in this case, while the pleading does allege disparate treatment, appellant presents nothing beyond her own conclusionary statements to show that such conduct occurred. For example there is no indication that the District would not have taken similar action, or would have failed to take action, against another employee who whipped his or her child on school grounds.
Stated another way, while there may be evidence that appellant felt harassed, there is virtually none that she was improperly treated and none that she received inferior or disparate treatment on account of her race. The altercation with Ms. Macris, to which we have referred, may be an exception, but there is nothing about it to suggest that it was racially-based. In that instance, as we have seen, the principal concluded that both parties had acted inappropriately and admonished (but did not punish) them both.
Even if we could conclude that a prima facie showing of race-based actions was presented, the presumption disappears in light of the formal disciplinary action taken against appellant. The 10-day suspension was based on specific charges relating to the belt-whipping incident and disrespectful conduct and a threat directed toward the principal. Appellant disputed the inferences the District drew from those incidents, and, with respect to the second, she presents a differing factual scenario. But those incidents were alleged in a formal disciplinary action which was determined against appellant, and which is now final. That action alone is sufficient to shift the burden to appellant to prove that the actions taken against her were because of her race. No such showing was made.
Nor is there a basis for the claim that actions were taken against her in retaliation for her complaints of racial discrimination. First, while her race and that of others was mentioned, there was no showing that the actions taken were on account of her race. More specifically, there is no showing that the reasons given by the District for its actions were pretextual, as the authorities require she establish. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155-156.)
Finally, since no racially-based adverse action was shown, there is no basis for the claim that the District failed to prevent race discrimination against appellant.
DISCUSSION
The judgment is affirmed. Respondent District to have its costs on appeal.
We concur: WILLHITE, J., SUZUKAWA, J.