Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Los Angeles County No. BC356857. Irving S. Feffer, Judge.
Cameron, Pearlson & Foster, Richard J. Foster and Stephen S. Smyth for Plaintiff and Appellant.
Bergman & Dacey, Inc., Gregory M. Bergman, Michele M. Goldsmith and Mark W. Waterman for Defendants and Respondents.
CROSKEY, J.
This is an appeal from a summary judgment in a suit brought under the provisions of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq., the FEHA). The judgment was granted in favor of the defendants in the case, the Los Angeles Unified School District (the district), Constantine Colazas (Colazas), and Serena Pritt (Pritt). The plaintiff, Mansoureh Jalali (plaintiff), is a teacher employed by the district. Colazas and Pritt are administrators at an elementary school where plaintiff taught for several years. In her complaint, plaintiff alleged employment discrimination and harassment based on her ethnicity and religion.
In deciding defendants’ summary judgment motion, the trial court found that the undisputed facts demonstrated that plaintiff had not suffered any adverse employment actions; she presented no credible evidence to suggest a discriminatory motive based on national origin or religion; defendants had legitimate reasons for the conduct of which plaintiff complains; plaintiff presented no evidence of pretext with respect to those reasons; plaintiff cannot prove harassment; and defendants Colazas and Pritt cannot be held individually liable for discrimination.
Our review of the record convinces us that none of the employment actions that form the basis of this suit can reasonably be found to be “adverse employment actions” as that term is understood with respect to the FEHA. Therefore, we will affirm the summary judgment.
BACKGROUND OF THE CASE
1. General Factual Background
According to plaintiff’s declaration filed in support of her opposition to defendants’ motion for summary judgment, she is a special education teacher in the district. She began her employment with the district in 1998 and taught at the district’s Seventh Street Elementary School for eight years, from the fall of 1998 to the spring of 2006. During her time there, she was the only Moslem and the only Iranian teaching there. She emigrated from Iran to the United States in 1974 and because a United States citizen. During her last several years at the Seventh Street Elementary School, defendant Colazas was the principal there and Pritt was the assistant principal.
The evidence shows that plaintiff’s initial assignment at the school was teaching emotionally disturbed children in grades K to 3. For the 2003-2004 school year, she moved to an early education class for grades K to 2, for children classified with mild/moderate disabilities. At that time she thought she would like to teach a PSM class (pre-school mixed ages) but she did not have a credential to teach it (an early childhood education credential). She began taking classes in the fall of 2005 to earn that credential. In the spring of 2004 it was decided to close the early education class and have a Special Day Class (SPAN) for special education students in grades 3 through 5. The SPAN class was the only open position at the school for the year 2004-2005 and plaintiff took it. However, she felt more comfortable teaching younger children because English is her third language. The SPAN class needed to have a minimum of 8 students in it to continue to operate.
In the spring of 2005 plaintiff told Pritt she did not want to teach the SPAN class after that school year ended and instead wanted to teach the PSM class, which was then being taught by Kelly Miller, a non-permanent status teacher. The record shows that Pritt accessed the district’s credentialing unit to inquire what credentials Miller and plaintiff had at that point in time and was informed that Miller had an early childhood credential that was necessary to teach the PSM class; that plaintiff did not have an early childhood credential; that plaintiff had a mild/moderate disabilities credential; and that plaintiff’s credential was not acceptable for the PSM position.
Portions of the record filed in support of defendants’ motion for summary judgment (Pritt’s declaration and plaintiff’s deposition transcript), show that based on provisions in the contract between the district and the teachers’ union, United Teachers Los Angeles (UTLA), Colazas and Pritt determined that Miller should stay in the PSM class because she had the proper credential. Plaintiff asked for a meeting with Pritt and Colazas to talk about the PSM position and they met in May 2005. Then plaintiff, Pritt, Colazas and a representative from UTLA met to discuss the PSM teaching slot. Because Colazas and Pritt continued to believe that Miller should remain in the PSM class, a dispute resolution panel for the district and UTLA was convened at plaintiff’s request to evaluate the situation. It convened on June 13, 2005, and determined that plaintiff was not eligible to teach the PSM class for the 2005-2006 school year because she was not credentialed and Miller had been appropriately assigned to that class. After that June 13 meeting of the dispute resolution panel, plaintiff went on medical leave for the remaining two weeks of the school year.
Plaintiff taught the SPAN class during the 2005-2006 school year and in the spring of 2006 a decision was made that there would be no SPAN class the next school year. The reason given was there would not be sufficient students (8) for the class. When the announcement was made to close the class, it was also announced that the PSM class that Miller was teaching would also be closed. Plaintiff understood that there were no positions at the school that were available to her and she would be reassigned to a different school. She was initially reassigned to President Elementary School as a pool teacher. She was there for two weeks and then was reassigned to Wellington Park Elementary School where she remains. She is a resource teacher there within the special education department. She stated at her deposition that Wellington Park is a “pleasant place” and the “people are great.”
2. Allegations Against Defendants
Plaintiff alleged in her complaint that defendants discriminated against her and harassed her, because of her religion and national origin, by referring to her as an “Arab” when in fact plaintiff is of Iranian/Persian decent. She alleged they told her Iranians are a little better than Arabs; they constantly commented on her accent and religion; she was given a video tape showing Palestinian children in a dirty environment “in an apparent attempt to cast aspersions on Plaintiff’s race and culture”; they spread false rumors about plaintiff, including about her sexual orientation; they referred to plaintiff as “different” and supported that characterization by stating that plaintiff and her children look different; and they attempted to obtain confidential and private information about her from her assistants.
Plaintiff alleged defendants’ bias against her because of her national origin and religion caused them to harass her and discriminate against her by refusing to provide her with lawfully required proper working conditions and assistance (textbooks and teacher aides). Additionally, they assigned another teacher to classes that plaintiff should have been assigned to because plaintiff had more seniority and was more qualified to teach the classes; they did not permit plaintiff to participate in a program to reduce the amount of her college loan; and they precluded her from participating in a training workshop.
Plaintiff alleged these matters constitute violations of the FEHA, specifically Government Code section 12940; they resulted in a loss of employment opportunities; and they caused plaintiff to suffer humiliation, mental anguish, emotional distress and physical ailments.
Plaintiff filed an administrative complaint against each of the defendants with the California Department of Fair Employment and Housing, and on July 17, 2006 was issued right to sue letters.
3. Procedural History of This Case
This case was filed on August 11, 2006. Defendants filed their motion for summary judgment in July 2007, plaintiff filed opposition, and defendants filed reply papers. The motion was heard on September 10, 2007, and granted by minute order and written order on September 14, 2007. A judgment in favor of defendants was signed and filed on October 4, 2007.
In support of her opposition to the summary judgment motion, plaintiff presented seven declarations—hers, her attorney’s and five others. With their reply papers, defendants submitted timely evidentiary objections to five of the declarations. At oral argument on the motion, defendants requested that the court rule on the objections. Plaintiff’s attorney responded by telling the court that he “advised [defendants’ attorney] that I had to leave for a family emergency in Ohio, and so I wasn’t here when [defendants’ evidentiary objections] were delivered. I have not had a chance to respond to her objections to the declarations.” The court responded: “Well, it will be under submission.” Plaintiff’s attorney did not overtly ask for additional time to file a written response to the evidentiary objections, nor to respond to each objection at the hearing. In its written ruling on the summary judgment motion, the trial court ruled on each individual evidentiary objection made by defendants, sustaining the majority of them.
After defendants received plaintiff’s opening brief on appeal, they filed a request to augment the record with the trial court’s written ruling on their evidentiary objections and we granted the request. The request to augment was made on the grounds that plaintiff’s opening brief does not challenge the trial court’s evidentiary rulings but does cite to and rely on evidence that the trial court ruled inadmissible. In her appellate reply brief, plaintiff asserted the trial court abused its discretion in ruling on the evidentiary objections. She asserts the court did not permit her attorney to address the objections. Also in her reply brief, plaintiff made responses to 38 of the evidentiary objections made by defendants.
We will not recognize this late presentation by plaintiff. To begin with, her attorney never actually asked the trial court for an opportunity to respond to the evidentiary objections either by oral response in court at the hearing or by written response after the hearing. Moreover, by making a factual presentation to this court in her opening brief that neglected to inform us that portions of the evidence she relied on in the trial court were ruled inadmissible, she gave this court a false picture of the evidence on which the court relied in granting defendants’ motion for summary judgment. Then, by using her reply brief instead of her opening brief to assert that the trial court abused its discretion in its evidentiary rulings, plaintiff precluded defendants from addressing those matters in their respondents’ brief. Such conduct is not permitted.
Nor do we subscribe to plaintiff’s assertion that even though the trial court struck her attorney’s declaration wherein the attorney sought to authenticate certain exhibits (including portions of the transcripts of the depositions of defendants Colazas and Pritt), the exhibits “can stand on their own” because the court did not rule the exhibits themselves were inadmissible. Plaintiff cites to Interinsurance Exchange v. Velji (1975) 44 Cal.App.3d 310, 317-318, where the court stated that because a party did not object to a document in the trial court on the ground that the documents was not properly authenticated, the objection was waived and could not be raised on appeal. That case is factually different from what occurred here. An objection to a declaration that authenticates exhibits is an objection to the exhibits themselves and thus the trial court sustained an objection to the deposition transcripts.
Plaintiff has filed a timely appeal from the summary judgment entered by the trial court.
DISCUSSION
1. Standard of Review
We review the order granting defendant’s motion for summary judgment on a de novo basis. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion.
When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff’s causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If a defendant’s presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action or on a defense, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant’s presentation, a triable issue of material fact actually exists as to those elements or the defense. (§ 437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) Thus, section 437c, subdivision (c), states that summary judgment is properly granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865-866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.
2. General Principles Applicable to Wrongful Discrimination Cases
Since it is often difficult to produce direct evidence of an employer’s discriminatory intent, certain rules regarding the allocation of the burdens and order of presentation of proof have developed in order to achieve a fair determination of the question whether intentional discrimination motivated an employer’s actions. (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 254, fn. 8.)
At trial, the plaintiff must present a prima facie case of discrimination: he was a member of a protected class; he was qualified for the position he sought or he was performing competently in the position he held; he suffered an adverse employment action (for example, he was terminated, demoted, or denied employment); and there is evidence that suggests the employer’s motive for the adverse employment action was discriminatory. The plaintiff must present evidence of actions taken by the employer from which the trier of fact can infer, if the actions are not explained by the employer, that it is more likely than not that the employer took the actions based on a prohibited discriminatory criterion. If the plaintiff establishes a prima facie case of discrimination, a rebuttable presumption of discrimination arises and the burden shifts to the employer to rebut the presumption with evidence that its action was taken for a legitimate, nondiscriminatory reason, and if the employer does that, the presumption of discrimination disappears, and the plaintiff’s task is to offer evidence that the justification presented by the employer is a pretext for discrimination or additional evidence of discriminatory motive. The burden of persuasion on the issue of discrimination remains with the plaintiff. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356.)
In Hersant v. Department of Social Services (1977) 57 Cal.App.4th 997, 1003-1005, the court stated that in employer-initiated summary judgment motions, an employer’s presentation of evidence showing a nondiscriminatory reason for an adverse employment action, coupled with the employee’s presentation of a prima facie case of discrimination, will not result in the need for a trial on the issue of discrimination. Rather, the employee must present evidence to rebut the employer’s claim of nondiscriminatory motivation, or the employer will prevail on its motion. “[T]o avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Id. at pp. 1004-1005.) The employee must do more than raise an issue whether the employer’s action was unfair, unsound, wrong or mistaken, because the overriding issue is whether discriminatory animus motivated the employer. (Id. at p. 1005.) “ ‘[T]he [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for . . . [the asserted] non-discriminatory reasons.” [Citations.]’ [Citations.]” (Ibid.)
In both of these situations—trials and motions for summary judgment brought by an employer—discrimination is not the only issue. The plaintiff must present evidence of an “adverse employment action” by the employer. Whether an employer’s action is “adverse,” as that term is used with respect to the FEHA, is an inquiry that “requires a case-by-case determination based on objective evidence.” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511.) The fact that an employee is not happy with an employer’s act or omission or is inconvenienced by it does not equate with a materially adverse employment action. (Id. at p. 511.) The employment action must be both detrimental and substantial. (Ibid.) A court must “analyze . . . complaints of adverse employment action to determine if they result in a material change in terms of . . . employment, impair . . . employment in some cognizable manner, or show some other employment injury. . . .” (Ibid; accord, McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386-387.)
Because we conclude that plaintiff has suffered no adverse employment action in her employment with the district, we have not set out, in a separate statement of facts, the evidence that was admitted by the trial court concerning to the issue of alleged discriminatory motivation.
3. Analysis of Plaintiff’s Claims
In Reno v. Baird (1998) 18 Cal.4th 640, 643, the California Supreme Court held that while plaintiffs may sue their employers under the FEHA for discrimination, the FEHA does not authorize discrimination claims against individual employees, such as a plaintiff’s supervisors. (Accord, Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160, 1173, citing Reno v. Baird, and holding that “the same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable.”) Therefore, we need not further address plaintiff’s claim that the individual defendants in this case discriminated against her.
a. Non-assignment to the PSM Class in 2005
One of the adverse employment actions alleged by plaintiff was that the district did not place her in a teaching position she wanted for the 2005-2006 school year—the PSM (Pre-School Mixed) class. The district presented three nondiscriminatory reasons for not assigning plaintiff to the PSM class: (1) the position was not open because it was already filled by another teacher, Miller, who had taught that class for the 2003-2004 and 2004-2005 school years; (2) the individual defendants were informed by the district that Kelly Miller had the necessary teaching credential for the position (early childhood special education) but plaintiff did not. Plaintiff had a Mild/Moderate Special Education credential and the individual defendants were informed it was not acceptable for the PSM class; and (3) the district’s contract with UTLA had provisions which required defendant Colazas to have Miller remain in the PSM position since Miller wanted to stay there.
The district asserts that plaintiff did not present admissible evidence to show that these reasons were pretextual and that the real reason plaintiff was not given the PSM class was discriminatory animus. Moreover, even if plaintiff did present sufficient evidence to enable a reasonable factfinder to conclude that those asserted non-discriminatory reasons are not believable, there are two other grounds for finding that plaintiff cannot prevail on this claim, and those grounds cannot be met by plaintiff with a showing of discriminatory animus. They are the administrative statute of limitations and the lack of an adverse employment action.
Government Code section 12960, subdivision (d) provides that except in circumstances not relevant here, “[n]o [FEHA administrative] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred.” Plaintiff filed her administrative complaints on July 11, 2006 and thus only adverse actions that occurred after July 11, 2005 could come within that administrative complaint. Here, there was evidence that plaintiff spoke with the individual defendants in May 2005 asking about assignment to the PSM class and was informed that Miller was already teaching the class and could not be bumped. After meetings concerning the matter, the final decision was made by defendants in June 2005 to have Miller continue teaching the PSM class. Thus, the administrative one-year limitations period prevents an adverse employment action claim based on the refusal of the district to assign plaintiff to the PSM class in 2005. “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.)
Second, not placing plaintiff in the PSM classroom was not an adverse action because adverse employment actions are those that are both substantial and detrimental to the plaintiff. Here, when plaintiff did not receive the PSM position, she continued in her then teaching position. She lost no benefits, she received no notice that her service was unsatisfactory, and she was never disciplined.
b. Plaintiff’s Claim that She Was Not Provided with Proper Textbooks
After the meeting on June 13, 2005, regarding the question whether plaintiff could replace Miller in the PSM slot, plaintiff took sick leave for the remainder of the 2004-2005 school year, which was about two weeks. She had also been out sick from June 7 to June 13, 2005. At her deposition, she stated she did not remember whether during the summer of 2005 she had contacted anyone at the school to inform them that she intended to return to teaching there for the 2005-2006 school year. She acknowledged she had not filled out, in the spring of 2005, the organization sheet that is intended to notify the district of a teacher’s intent to return to teach at a school for the following school year. In her declaration filed in support of her opposition to defendants’ motion for summary judgment, she stated she never received any calls or letters from the school inquiring whether she would return in the fall.
Plaintiff did return to her school on the first day of classes of the 2005-2006 school year and resumed teaching the class she had been teaching the previous year, the SPAN class for special education students grades K through 5. She had ten students. She alleged in her complaint in this case that she was discriminated against on the basis of her religion and national origin when defendants refused to provide her with “proper work conditions and assistance as required by law.” Included in that allegation is that defendants did not provide her with textbooks for her students.
In the declaration that defendant Pritt filed in support of defendants’ motion for summary judgment, Pritt stated that because plaintiff was on leave during the last weeks of the 2004-2005 school year, because plaintiff did not indicate whether she intended to return in the fall for the following school year (2005-2006), and because plaintiff had not submitted a book request for the 2005-2006 school year, she (Pritt) and defendant Colazas did not know if plaintiff planned on returning in the fall of 2005 to the SPAN class. Pritt arranged for someone else to cover the SPAN class in case plaintiff did not return. Pritt stated that teachers are generally required to submit, in the spring, orders for textbooks for the coming school year and thus plaintiff did not have textbooks delivered to her classroom at the beginning of the 2005-2006 school year. Because a substitute teacher had been scheduled for plaintiff’s class, some books had been ordered for the class.
In her declaration, plaintiff stated she was not provided with textbooks in September 2005 for her students despite numerous requests to defendants Colazas and Pritt, and she was not provided with teacher guidebooks. At her deposition, plaintiff testified she could not recall if she turned in a book order, and it was not until two or three weeks into the school year that she received “the main books for my students.” She also testified she never received any science textbooks and only some of her students had health books (the first and second year students apparently had them).
In her declaration, plaintiff stated she believed that Colazas and Pritt denied her textbooks and guidebooks to make her work conditions intolerable. However, at her deposition, she had stated several times she did not know why she had not been provided with books. Defendant Pritt stated in a declaration that it is not uncommon for teachers to not have their own teacher’s workbook and they share their workbooks. She stated plaintiff never spoke to her about not having books, and she (Pritt) did not decide to not provide plaintiff with workbooks and textbooks; rather, it was a function of which books could be ordered when plaintiff returned to school and when they would become available. In her declaration, plaintiff denied that teachers share their guidebooks.
Plaintiff’s aide, Maria Solis, testified at her deposition that plaintiff received health materials but not for all of the grade levels that were in plaintiff’s class. Additionally, Solis stated that plaintiff never received math and science books. She stated the lack of books was dealt with by her making copies of pages in textbooks that they did have or that they would borrow, and once a week she would make enough copies of those pages for a week.
The district argues that plaintiff’s not having sufficient copies of books for each child in her class was not an adverse action because adverse employment actions are those that are both substantial and detrimental to the plaintiff. (Thomas v. Department of Corrections, supra, 77 Cal.App.4th at p. 511.) As noted above, our task is to “analyze . . . complaints of adverse employment action to determine if they result in a material change in terms of . . . employment, impair . . . employment in some cognizable manner, or show some other employment injury. . . .” (Ibid; accord, McRae v. Department of Corrections and Rehabilitation, supra, 142 Cal.App.4th at pp. 386-387.) The question is whether the lack of a full array of textbooks for plaintiff’s students substantially impaired her employment to an extent that it can be considered an adverse employment action. We find it did not. Solis was able to make copies of needed pages of books, and plaintiff testified at her deposition that she received the main texts for her students within two or three weeks into the school year.
But beyond that, there is also the fact that plaintiff stated at her deposition that she did not know why she had not been provided with books. Thus, her subsequent statement in her declaration that she believed that Colazas and Pritt denied her textbooks and guidebooks to make her work conditions intolerable is suspect and not substantial evidence. (Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins., Co. (1988) 199 Cal.App.3d 791, 800.) “Moreover, plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; . . .” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) Further, “a statement of someone else’s intent, as contrasted with a statement of one’s own intent, is a mere conclusion of law.” (Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136.) When testimony about someone else’s intent is “unsupported by any facts tending to show that he knew what their intent was,” is not competent to support a finding. (Ibid.)
c. Plaintiff’s Claim that She Was Not Provided With Baseline Teaching Assistant
Defendant Pritt stated in her declaration that the district provides most special education classes with a “baseline aide” and plaintiff’s class was assigned aide Solis. It is district policy that if the baseline aide is going to be absent from work for less than 20 days, it is the responsibility of the individual school to provide someone to cover for the aide, and the written policy is that the existing special education assistants at the school are to cover for the absent aide.
By inter-office memo dated Wednesday September 14, 2005, plaintiff wrote to defendant Colazas, with a “cc” to defendant Pritt, stating that Solis had been going to physical therapy “since Monday . . . on a MWF schedule for her work-related injury. Tuesday she also needed to leave at 1:00.” Solis’ physical therapy appointments were in the morning and she was absent from plaintiff’s classroom approximately two hours for each appointment. The therapy took two weeks.
Pritt stated in her declaration that when plaintiff told her Solis needed to go to physical therapy, Pritt “created a schedule for the other aides and/or teachers to try and provide coverage for [plaintiff].” The schedule has the names of three people who were assigned to plaintiff’s class for 30 minute intervals in the morning, beginning at 8:30 and ending at 11:00. Pritt stated she spoke with three teachers to provide plaintiff with help, but “as it was the beginning of the school year, everyone had their hands full.” Pritt stated she was told that teachers assisted plaintiff when they could. She stated she never told the “pool teacher” not to assist plaintiff.
Pritt testified at her deposition that a pool teacher is a new hire by the district who is placed at a school for a classroom to open up for them either at that school or another school. The function of a pool teacher is to do what the principal needs him or her to do, such as act as a substitute teacher.
Plaintiff stated in her memo to Colazas that Pritt told her the scheduled aide coverage would not actually happen, and if and when plaintiff has need for an aide, she should call the office and support would be given to plaintiff as it is available and for as long as available. Plaintiff stated in her memo she had called the office that very morning because her “severe behavior problem” student “was already out of control” but Pritt told her she had no one to send to help plaintiff because the school did not have enough help and “[t]he district knows the situation. The pool teacher is busy.” Plaintiff also mentioned in her memo that one of her other students is unable to control his impulses to walk out of class and although he is “a one-on-one student,” she had not yet received an aide for him.
On September 15, 2005, defendant Colazas wrote a memo back to plaintiff explaining that “other safety issues in the Special Education classes have surfaced and make it impossible to adhere to [the] schedule [that Pritt devised].” He stated that Pritt had spoken with three people to provide plaintiff with help “yesterday” and Pritt herself had been in plaintiff’s class “yesterday” and remained there until Solis arrived. Colazas stated it was “extremely difficult to provide coverage in the morning” and Pritt assured him “we are doing the best that we can, and still not creating a safety concern in other Special Education classes.” He stated that one of plaintiff’s students was ready to be mainstreamed and a meeting was to be held to have other students in plaintiff’s class work with “the general education teachers.” In his declaration he stated that when assistance was not provided to plaintiff during the time Solis was at physical therapy it was “because of other emergent needs of the special education program at the District and due to other safety concerns in the Special Education classes.”
Thus, the question is whether a continued absence of a baseline aide that the district routinely provides to special education teachers could reasonably be said to be a material change of terms of employment in this case because the district’s own policy regarding absent aides (that the other aides are to cover for the absent aide) was not carried out. It is reasonable to believe that when an aide is routinely provided for a classroom with only 10 students, the aide is needed as a component of the daily education of the students. Moreover, plaintiff’s class had six different grade levels, and plaintiff stated in her declaration that she had a “very difficult class.” There is evidence one of her students was prone to walking out of class and another was a danger to himself and others. We cannot agree with the district that the absence of Solis from plaintiff’s classroom for upwards of two hours three days a week for two weeks was of no more importance than lacking a lab coat or having to share a desk. (Cf. McRae v. Department of Corrections and Rehabilitation, supra, 142 Cal.App.4th at p. 393.)
Nevertheless, we do not find that the absence of the needed aide was an adverse employment action. While working without the help of an aide was understandingly upsetting to plaintiff, we cannot say it “materially affect[ed] the terms, conditions, or privileges of employment.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) It was not something with long term consequences of impairing her job performance, prospects for advancement or promotion. (Id. at pp. 1054-1055.)
Moreover, the district presented a nondiscriminatory reason as to why plaintiff was not provided with assistance from the other aides each day that Solis was away at physical therapy: there was a shortage of personnel at the school; the other teachers had their hands full since it was the beginning of the school year; having to provide cover in the morning for classes is more difficult than in the afternoon; and the other special education classes had their own needs and safety concerns.
It is true that plaintiff stated in her declaration that (1) pool teacher Leslie Botero was assigned to the school to help as needed at the school, (2) Pritt told Botero to only provide bathroom breaks for plaintiff, (3) Botero only provided restroom breaks to plaintiff, but Botero told plaintiff that she told Pritt she was available to provide cover for plaintiff, and (4) Botero told plaintiff she would like to help plaintiff because she was sitting in the office doing nothing. The problem with these representations as to what occurred with respect to Botero is that it is not known whether Botero was available to cover plaintiff’s class every day that Solis was out or only on the day that plaintiff and Botero spoke. Further, although plaintiff concluded in her declaration that she “believe[d] that this was another attempt by Pritt to make my work conditions intolerable,” as noted above, in an employment discrimination case, the plaintiff’s subjective beliefs will not create a genuine issue of fact, and plaintiff’s statement of Pritt’s intent is a conclusion of law, not a statement of fact because it is not supported by facts tending to show that plaintiff knows what Pritt’s intent was.
Moreover, plaintiff’s conclusion that Pritt was trying to make her working conditions intolerable was at odds with what plaintiff stated at her deposition. At her deposition she was asked if she thought it was Pritt’s fault that the aides who had originally been scheduled to fill in for Solis were not going to be available, and plaintiff answered: “I just needed help. I didn’t blame anyone.” Asked if she thought that Pritt purposefully did not give her help, plaintiff answered: “I have no idea.” Asked if anyone told her that her not receiving help was done on purpose, plaintiff answered: “I do not recall.” Asked if she believed that it was her relationship with Pritt that caused Pritt to say there was no assistance available, plaintiff answered: “I never speculated anything,” and when asked if her answer was “no,” plaintiff stated: “correct.”
d. Plaintiff’s Claim that She Was Not Provided with an “Adult Additional Assistant” Needed For One of Plaintiff’s Students
Pritt stated in her declaration that the district assigns an Adult Additional Assistant (AAA) to students who require assistance during the school day, and the assignment is usually made through the IEP process (Individualized Education Program). In the 2005-2006 school year, one of plaintiff’s students needed an AAA and Pritt made a request to the district that an AAA be assigned to plaintiff’s classroom. On September 12, 2005, Pritt called the local district office to inquire about the status of the request and she was told it would take another four to six weeks for processing to be complete and an AAA assigned. The next day, Pritt received a phone call from a district classified assignment specialist who stated she was seeking an AAA. Two and a half weeks later, an AAA was assigned to plaintiff’s class. Pritt stated the assignment was made faster than any she had ever seen since she became an assistant principal.
Pritt stated at her deposition that a request for an AAA for a student is not made until the student is enrolled in a school and attending it, and the student in plaintiff’s class that needed the AAA came from outside the district and was not enrolled at the Seventh Street Elementary School until the third week of August 2005, and that is when Pritt made the formal request for the AAA for the student. She stated the district’s time frame for providing an AAA for a student after a request is made is at least six weeks.
In her declaration plaintiff stated her beliefs that Pritt neglected to arrange for an AAA for her class and that Pritt did so to create an intolerable work environment for plaintiff because it was very stressful to manage her class without the AAA. Yet at her deposition, plaintiff stated she did not know why the AAA was not provided to her earlier than the end of September 2005. Moreover, as observed above, plaintiff’s subjective beliefs do not create a genuine issue of fact, and her assertion of Pritt’s intent is a mere conclusion of law absent facts tending to show that she knows what Pritt’s intent was.
The nearly month-long absence of an AAA for the student who was determined to need one in order to function in plaintiff’s class is not reasonably viewed as an adverse employment action because the absence was in keeping with the normal time for securing an AAA. Indeed, Pritt stated in her declaration that ultimately the district assigned the AAA to plaintiff in record time. The bureaucracy of the district is not helpful to a special education teacher faced with teaching a student who needs an adult by his side during the school day, but its effect here does not constitute an adverse employment action.
e. Plaintiff’s Claim that She Was Not Permitted to Attend a Training Session
Plaintiff alleges she was discriminated against when she was not permitted to attend a training seminar in early 2006. The appellate record contains a copy of the notice that was given for the seminar. It is directed to the teachers and paraprofessionals at the school and it states in relevant part: “We have been offered the chance to send up to 2 teachers and one paraprofessional to a full day (8:00-3:00) workshop entitled ‘Hear Our Cry—Boys In Crisis’ which gives relevant and practical strategies to address the needs of boys who, as we know, comprise the majority of our discipline problems and the majority of our Special Ed. Population. The presenter is Dr. Paul Slocumb who many of you heard and enjoyed during our buy-back day last year. . . . [T]his offer (for 2 teachers and 1 paraprofessional) is for either Tuesday January 31 or Wed. Feb. 1. . . . See me ASAP if you’re interested.” Plaintiff stated in her declaration that attending the seminar would have been very beneficial to her because she had several difficult boys in her class.
In his declaration, defendant Colazas stated this workshop was provided by the district, and although there were “numerous requests from teachers to attend,” plaintiff’s aide Solis was the only assistant that asked to go to the workshop. He selected Solis as the paraprofessional to attend the program, and did not select plaintiff as one of the two teachers to attend because he did not want to leave plaintiff’s class without both its teacher and its aide. He selected two first grade teachers to fill the teacher slots. He stated the only factors that played into his selection were the ability to cover classes and the best interests of the students. He also stated that although there were other behavioral workshops, plaintiff never requested to attend them.
Given the text of the bulletin that announced the workshop, we cannot agree with plaintiff’s characterization that the workshop was “geared to special education teachers.” The notice implies it is geared to the problems associated with teaching boys, be they discipline problems or special education students. Nor do we find persuasive plaintiff’s assertion that if Colazas was concerned that she and Solis would both be absent from the classroom on the same day, Colazas could have sent plaintiff to one session of the seminar and Solis to the other session. The bulletin states the offer for training two teachers and one paraprofessional is “for either Tuesday January 31 or Wed. Feb. 1.” While not necessarily clear whether the offer was that the participants had their choice of attending either session, Colazas’s declaration that he did not want both Solis and plaintiff to both be absent from plaintiff’s class at the same time shows that the Seventh Street Elementary School would be represented either on January 31 or February 1, 2006.
The reason stated by Colazas for not choosing plaintiff to attend the class is clearly a nondiscriminatory one. Plaintiff’s students would not be well served if plaintiff and Solis were both absent from the class at the same time, and Colazas stated that Solis was the only paraprofessional that asked to attend. Moreover, this denial of that particular training does not constitute an adverse employment action because adverse employment actions are those that are both substantial and detrimental to the plaintiff. Clearly not going to the workshop does not come within that description. Indeed, if it did, then all of the teachers who asked to attend the workshop but were not picked would be able to claim an adverse employment action. Moreover, plaintiff admitted at her deposition she never thereafter sought to attend the training the next time it was offered.
f. Plaintiff’s Claim that She Was Not Permitted to Participate in a Program Designed to Pay Off College Loans
Plaintiff stated at her deposition that the State of California, not the district, operates a program called the Assumption Program of Loans for Education (APLE) for forgiving student loans for teachers, and the program requires input from a teacher’s principal stating whether the teacher worked full time during a school year. In her declaration, plaintiff stated the APLE program “assumes a portion of student loans for full-time teachers.” Plaintiff stated that in the 2004-2005 school year, she took two weeks off for medical leave and the district allowed the leave and paid her for her full-time work.
In the appellate record are (1) a letter to plaintiff from the California student aid commission explaining the APLE forms that plaintiff should fill out to apply for partial forgiveness of her student loan based on her 2004-2005 teaching; (2) a copy of the APLE 2004-2005 employment compliance verification form that plaintiff and Colazas filled out for that school year; and (3) correspondence between plaintiff and Colazas regarding plaintiff’s 2004-2005 school year APLE request for partial assumption of her student loan.
Whereas plaintiff stated on the employment compliance verification form that she worked full-time during the 2004-2005 school year, Colazas stated on that form that she did not work full time because she took a leave of absence the last two weeks of school. Asked on the form if plaintiff would be employed by the district during the 2005-2006 school year, Colazas stated he did not know because plaintiff was currently on a leave of absence and she did not sign up for the new school year. Plaintiff signed the form on June 21, 2005; Colazas did not date his signature.
By memo to Colazas dated March 6, 2006, plaintiff asked his help “in correcting a misimpression held by the California Student Aid Commission, Specialized Programs/APLE.” Plaintiff explained to Colazas that she had been disqualified from receiving APLE benefits for the 2004-2005 school year and the reason given by APLE for the disqualification was she had not “ ‘provid[ed] consecutive years of qualifying full-time teaching service in your designated area.’ ” Plaintiff told Colazas that she had taught, and been paid for, the full school year, and she asked Colazas to call the student aid commission to verify that she had worked full-time. Two days later she again wrote to Colazas and asked for his assistance. The copy of plaintiff’s March 8, 2006 memo to Colazas has a handwritten note on it, dated March 8, that says: “Explained to Ms. J. that I filled out form completely and correctly and accurately. If they have a specific question to call me.” In her declaration, plaintiff stated that Colazas refused to correct his information on the employment compliance verification form and because of that she was denied benefits for both the 2004-2005 and 2005-2006 school years and she believes this was part of the ongoing effort of Colazas and Pritt to make her working conditions intolerable.
We do not find that the way Colazas filled out the APLE form can be considered a matter that comes within the scope of the FEHA. In Thomas v. Department of Corrections, supra, 77 Cal.App.4th at pp. 510, 512, the court addressed a plaintiff’s claim that she suffered an adverse employment action when a fellow employee interfered with her appointment to a supervisory committee of a credit union. The court stated the interference “was not an employment-related action” for which relief could be sought under the FEHA. (Id. at p. 512.) Likewise here with respect to plaintiff’s allegation that Colazas impaired her ability to have a portion of her student loan forgiven. The APLE program itself is separate from her employment. What Colazas wrote on her APLE form did not produce “ ‘a materially adverse change in the terms of [her] employment.’ ” (Id. at p. 510.)
We disagree with the district’s assertion that plaintiff admitted at her deposition that Colazas filled out the APLE form correctly. She was asked whether his statement on the form that she had been on a leave of absence the last two weeks of school was correct, and she acknowledged that was correct. She was not asked whether his statement that she had not provided a year of full-time teaching service was correct.
g. Plaintiff’s Claim that Defendants Had Improperly Closed the SPAN Class and Denied an Autism Class to Plaintiff and Caused Her To Be Transferred
In the spring of 2006, defendants decided that the PSM class that Kelly Miller had been teaching, and the SPAN class plaintiff had been teaching, would not continue for the 2006-2007 school year. Plaintiff contends defendants closed the SPAN class by using the false reason that it no longer had the minimum number of eight students to keep it open. Plaintiff contends defendants orchestrated the low number of students scheduled for the SPAN class for the 2006-2007 school year by forcing parents to take their children out of the SPAN class and not permitting others to sign up for the class.
In addition to closing the SPAN and PSM classes, defendants also organized a class for autistic children for grades K through two for the 2006-2007 school year. Plaintiff stated in her declaration that she was not advised at the end of the 2005-2006 school year, nor during the summer of 2006, that the autism class was opening. Defendants assigned Kelly Miller to that class. Plaintiff contends the assignment was made even though (1) plaintiff was not given the opportunity to apply for the position, (2) plaintiff had more seniority than Miller, and (3) “Miller did not even have a Mild/Moderate credential, which is more applicable to an Autism class than Miller’s Early Childhood credential. Also, she had no experience teaching kindergarten or first or second grade.”
On June 22, 2006, plaintiff was given a notice of displacement indicating that she was released from Seventh Street Elementary School effective June 26, 2006 in accordance with the district’s labor contract with UTLA in “overteachered situations,” and she would be placed on the district’s District Wide List for reassignment. Defendants’ response to plaintiff’s charges regarding the SPAN and autism classes is that they had legitimate reasons for their actions, and the charges are not based on a legally adequate adverse employment action because plaintiff’s terms and conditions of employment with the district were not materially, substantially and detrimentally impacted.
We find there was no adverse employment action when plaintiff had to move to another school. Plaintiff testified at her deposition that she was currently co-teaching a class with another teacher and it is a full time position. She stated that since she began working for the district, she always retained the status of a teacher, had never been terminated by the district, and had never lost any benefits from the district. Also, from 2002-2006, Pritt had never given her a “below standards” evaluation, and during her entire teaching career with the district, she had never received notice that her service was not satisfactory, nor had she ever been disciplined or suspended by the district for any reason. Although she testified at her deposition that after she left Seventh Street Elementary School her salary was reduced, she explained that the reduction was due to an error in the payroll designation for her such that the district erroneously listed her at the “J” level of pay rather than the “C” level, and subsequently she was restored to the “C” level.
Courts have held that plaintiffs who are required to take, or are denied, a lateral transfer (that is, a transfer with no reduction in benefits and pay) do not suffer an actionable injury absent other materially adverse consequences which would support a finding by a reasonable trier of fact that the plaintiff suffered objectively tangible harm. Personal preferences and hurt feelings do not suffice. (McRae v. Department of Corrections and Rehabilitation, supra, 142 Cal.App.4th at p. 393.). Here, the evidence shows that plaintiff’s release from service at Seventh Street Elementary School and reassignment to another school was not an adverse employment action.
Moreover, the district presented a legitimate reason for closing the SPAN class, and the district’s evidence shows a legitimate reason for not offering the autism class to plaintiff—she did not have the needed credential. Additionally, plaintiff presents no evidence that she actually applied to teach the autism class. There was evidence that had she wanted to, she could have accessed the district’s web site/human resources page and examined the positions that were open for the 2006-2007 school year, and in that manner discovered the opening for the autism class. In Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355, the court stated that to prevent a prima facie case of discrimination, the plaintiff must do more than demonstrate she was denied a position; she must show that she applied for the position and was qualified for it.
h. Plaintiff’s Claim that Pritt and Colazas Had Failed to Investigate a Rumor About Plaintiff
(1) Background of the Rumor
Plaintiff contends she presented evidence of an adverse employment action in the failure of Pritt and Colazas to investigate a rumor among the teachers regarding plaintiff’s sexual preference. Specifically plaintiff states in her opening brief: “Knowing that lesbianism was not tolerated in Plaintiff’s religion, Pritt toyed with Plaintiff’s emotional state by telling Plaintiff that there was a rumor amongst the teachers that Plaintiff preferred women over men.” Plaintiff cites to a portion of her declaration to support that assertion. However, the declaration does not provide support.
In her declaration, plaintiff stated she was at a meeting with Colazas and Pritt in May 2005 to discuss plaintiff’s desire to teach the PSM class, and to discuss that Pritt had made inquiries to plaintiff’s aide regarding plaintiff’s personal life. Plaintiff stated in her declaration that when she complained to Pritt about Pritt’s inquiries into her personal life, Pritt told her there was a rumor about plaintiff’s sexual orientation. Plaintiff’s declaration states plaintiff asked Pritt the source of the rumor and Pritt replied she heard the rumor a long time ago and she forgot who told her. Plaintiff stated in her declaration that she then “advised [Pritt and Colazas] that this is extremely forbidden in my religion and that I wanted an investigation.” (Italics added.) Thus, plaintiff’s own declaration does not show that Pritt knew the religious implication of the rumor before she relayed the rumor to plaintiff, and thus plaintiff’s declaration does not support her assertion that Pritt toyed with her emotional state by relating the rumor. Plaintiff’s declaration also does not support her statement in her opening brief that “[i]n all probability, no one ever made such a statement; Pritt simply made the comment knowing that it would be very upsetting to Plaintiff due to her religious beliefs.” (Italics added.)
Moreover, plaintiff’s speculative statement in her brief that probably no one ever made a statement to Pritt about plaintiff’s sexuality is at odds with testimony that Pritt gave at her deposition. Pritt testified that she was at a dinner party when the rumor was stated by a teacher. Pritt testified that she responded by telling the teacher that she knew who had started the rumor about plaintiff (an employee at the school), that the person who started the rumor about plaintiff had said the same thing about Pritt, and that such person should be told that “it is not true and to not say these kinds of things again.” In her declaration, Pritt gave the same account of what occurred at the dinner party. Pritt stated that when she, plaintiff and Colazas were at their meeting in May 2005, they were discussing that plaintiff does not like to have people talking about her, and in an attempt to show that rumors can be quashed, she told plaintiff that she had heard that plaintiff does not like men and she relayed to plaintiff what she had told the teacher at the dinner party. Pritt stated in her declaration that she told plaintiff that after she made that response to the teacher at the dinner party, the conversation about the rumor ended. Pritt stated in her declaration that the day after the meeting between Pritt, Colazas and plaintiff, plaintiff asked her for the name of the person who had told Pritt the rumor about plaintiff and Pritt told plaintiff it was a long time ago and the rumor had been handled, and although plaintiff persisted in trying to find the name of the person telling the rumor, Pritt continued to respond that the rumor had been handled.
Additionally, in their June 13-17, 2005, weekly school bulletin Pritt and Colazas included a reminder to the staff that the district’s guidelines say that gossiping and spreading rumors are considered to be bullying and should not occur, and that the staff should respect each other’s right to privacy. The bulletin is included in the record; it also states that according to district guidelines, rumors can also fall into the category of sexual harassment, conversations should be positive and above board, and questions and issues should be addressed with the party involved. Moreover, it is to be noted that plaintiff testified at her deposition that she herself questioned at least 15 or 16 teachers as to whether they had the rumor about her sexual orientation and they all told her they had not heard the rumor.
(2) The Rumor Was Not About Plaintiff’s Religion or National Origin, It had No Impact on Her Employment; and Defendants’ Responses Were Positive
Although plaintiff alleges employment discrimination based on religion and national origin, the rumor says nothing derogatory about those things; it is a rumor is about plaintiff’s sexual orientation. Further, it had no impact on the terms and conditions of plaintiff’s employment. Moreover, defendants’ responses to the rumor were positive. Pritt took steps to put it to rest at the dinner party, and she and Colazas addressed the issue of rumors in the school bulletin.
i. Collectively, the Acts of Which Plaintiff Complains Do Not Establish Cause to Reverse the Summary Judgment
In Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1055, the court stated it did not need to determine whether each of the acts which the plaintiff asserted was taken in retaliation against him constitutes an adverse employment act because the plaintiff was alleging that the defendant’s acts formed a pattern of systematic retaliation for the plaintiff’s refusal to carry out a directive against another employee that she believed constituted discrimination against that employee. The court stated that “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” The court cited a federal case holding that individual acts that do not constitute adverse employment actions may, when viewed collectively, be actionable.
Although courts will recognize the collective impact of acts that in and of themselves are less than adverse employment actions, the collective impact must still be sufficient to support a finding that the employee’s terms, conditions or privileges of employment were materially affected, or her job performance or prospects for advancement or promotion were likely impaired. Here, none of that happened. (Id. at pp. 1054-1055.)
DISPOSITION
The summary judgment is affirmed. Costs on appeal to defendants.
We Concur: KLEIN, P. J., ALDRICH, J.
Further, plaintiff’s presentation to this court has focused on her claim of discrimination and she has not presented an argument regarding her claims of harassment. Therefore, we will not address the trial court’s finding that plaintiff cannot prove her claim of harassment by the defendants.