Filed 11/10/15 Pechin v. County of Kern CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

WARREN PECHIN,
                                                                                           F068978
         Plaintiff and Appellant,
                                                                        (Super. Ct. No. S-1500-CV-276443)
                   v.

COUNTY OF KERN,                                                                          OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Darling & Wilson, Joshua G. Wilson and Jason R. Ekk, for Plaintiff and
Appellant.
         Theresa Goldner, County Counsel, Andrew C. Thomson, Deputy County Counsel,
for Defendant and Respondent.
                                                        -ooOoo-
         Warren Pechin, an architect, was hired by the Kern County Construction Services
Division (county) in 2007 and fired in 2011. He sued the county for age discrimination,
whistleblower retaliation, and breach of contract. The trial court granted the county’s
motion for summary judgment, ruling that Pechin had failed to exhaust his administrative
remedies. The court also stated that Pechin failed to carry his burden on the merits.
       We agree with the court’s ruling on the merits of the summary judgment motion
and will not address the exhaustion issue. We affirm.
                        FACTS AND PROCEDURAL HISTORY
       Pechin filed his complaint in the superior court on April 23, 2012. It alleged that
his job as a supervising engineer with the county Construction Services Division was
designing projects for the county and supervising their construction. During his
employment he “became concerned” that the county was “wasting taxpayer dollars”
because other county agencies could have obtained architectural services more cheaply
from private firms than from the Construction Services Division. He brought Pechin’s
concerns to the attention of his supervisors and suggested that changes be made to the
division’s methods and billing practices. County employees Mark Russell and Jeff
Frapwell responded to his concerns by retaliating against him. A pretextual reason for
firing him was developed: The county falsely accused Pechin of working on outside
projects during working hours. In reality, he worked on his outside projects only during
nonworking hours, breaks, or “‘comp’ time.” The county terminated Pechin’s
employment on September 21, 2011.
       The complaint stated that when Pechin was fired, he was 66 years old. He was
replaced by a younger employee with a lower salary. Russell and Frapwell “allowed
other employees” to call Pechin “‘[v]iejo’” and “‘senile.’” Pechin alleged that the county
“ha[s] a policy of replacing older employees in the Construction Services Division with
younger employees” to save money on pay and benefits.
       The complaint stated that Pechin filed a charge of age discrimination and wrongful
termination in violation of public policy with the Department of Fair Employment and
Housing (DFEH). DFEH issued a right-to-sue letter. Pursuant to the Government



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Claims Act (Gov. Code, § 810 et seq.), Pechin also submitted a claim to the county,
which the county rejected.
       The complaint alleged three causes of action. The first was wrongful termination
in violation of public policy, based on the claim that the county fired Pechin in retaliation
for his complaints about money being wasted. (This is the whistleblower claim.) The
second was breach of contract, based on the notion that Pechin and the county entered
into an implied employment contract according to which the county would terminate
Pechin only for good cause. The third cause of action was age discrimination in violation
of Government Code section 12940, subdivision (a). The complaint prayed for damages
and attorneys’ fees.
       The county filed its motion for summary judgment on August 16, 2013. In
response to the age discrimination and whistleblower retaliation claims, the county
asserted that Pechin was fired for legitimate reasons. In support of this assertion, the
county submitted a letter written to Pechin by Mark Russell, who was manager of the
Construction Services Division, dated August 5, 2011.
       The letter stated that Russell was proposing to terminate Pechin’s employment due
to Pechin’s misconduct. Russell detailed numerous improper acts by Pechin involving
unapproved outside work and the misleading of Russell and Frapwell. According to the
letter, Pechin was involved in a number of outside projects with a structural engineer
named Kevin Harrel. Some of these projects involved county facilities, but Pechin never
informed his supervisors of his involvement, contrary to county rules. At the same time,
Pechin was the manager responsible for approving Harrel’s proposed fees on county
projects. In one instance, Pechin recommended a $20,350 increase in Harrel’s fees on
one project. When pressed to explain, Pechin admitted he was trying to obtain payment
for Harrel’s work on a different project, work Pechin had approved without permission
and then hidden from his superiors. In another instance, Pechin tried to obtain payment
for his own unapproved outside work on a county project by causing Harrel to submit a

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$2,450 bill for architectural work actually done by Pechin. At one point, Frapwell
ordered Pechin not to be involved in any projects with Harrel while Frapwell sought the
opinion of the County Counsel on whether Pechin’s involvement with those projects
created a conflict of interest. Within days, Pechin disobeyed these instructions by
participating in a meeting at one of Harrel’s construction sites. On his time sheet, Pechin
falsely recorded the time spent at the Harrel site as time for county work performed
elsewhere.
       Pechin also approved the time sheet of a subordinate showing county work time
for a period when, in reality, the subordinate was doing outside work for Pechin. Another
subordinate was found, during working hours, retrieving and copying documents for one
of Pechin’s outside projects.
       Russell wrote that Pechin once submitted paperwork for a building permit for one
of his private clients, but indicated that the county was responsible for paying the permit
fee. County accounting staff had to spend time to confirm that the fee was not to be paid
by the county.
       Russell’s letter also described several instances in which Pechin failed to obey
Russell’s instructions or adhere to office policies. Once, without informing his superiors,
he approved work encroaching on neighboring property, leading to a need for costly
alterations. He refused to use scheduling software that had been deployed in the office,
making it hard for other employees to find him and schedule meetings with him. He
missed a meeting because of his failure to use the software. Pechin also refused to use a
county car when traveling during the work day. County cars were equipped with GPS
devices. Russell believed that Pechin refused to use the software and the county car to
avoid having his activities and whereabouts monitored during working hours.
       Russell also wrote that he had received complaints regarding Pechin’s treatment of
female staff. Women employees had reported that Pechin excluded them from meetings



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and used demeaning language when speaking to them. Russell believed this conduct
created a risk of liability.
       Russell’s letter included several additional points. Pechin accompanied an outside
client to a meeting with county planning staff during working hours but did not ask for
time off or report time off on his time sheet. Other employees observed him scheduling
meetings with his private clients on his work phone at his desk. Pechin did not disclose
or obtain permission for various outside projects. He asked staff members not to bring
any of their concerns to Russell. Pechin wrote a letter to the head of the fire department
complaining about a fire department employee instead of channeling his concerns
through his own superiors.
       Russell’s letter listed several grounds for termination under the county’s Civil
Service Commission rules. These included insubordination, dishonesty, and acts
constituting a conflict of interest.
       The county’s motion papers included a letter Pechin wrote in response to Russell’s
letter. Pechin replied to Russell’s contentions point by point, generally claiming the
conduct described by Russell was innocent. For instance, Pechin wrote that he fulfilled
his obligation to notify the county about outside work by submitting an annual form; the
county had no authority to order him to avoid involvement with Harrel’s projects; and the
county’s interests had not been harmed by Pechin’s involvement in those projects. When
Pechin asked staff not to bring concerns to Russell, he only meant they should not bother
Russell with petty problems. If Pechin ever did outside work during office hours, he
made up the time during breaks or at the end of the day. The request to have a private
client’s permit fee paid by the county was an error caused by an employee of the county’s
Building Inspection Department. The women employees who had complained of gender
bias were themselves to blame for the problems they described. Pechin’s employee
evaluations had been consistently outstanding.



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       In addition to the argument that Pechin was fired for legitimate reasons, the
county’s motion also contended Pechin’s whistleblower claim was meritless because
Pechin did not allege that he had reported a violation of law. The county cited Labor
Code section 1102.5, which prohibits retaliation against an employee who reports
information that “discloses a violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation .…” (Lab. Code,
§ 1102.5, subd. (b).)
       On the breach-of-contract claim, the county’s motion argued that a public
employee’s rights in California are governed by statute, and such an employee cannot
have contract rights in conflict with the governing statutes.
       The county’s motion further argued that summary judgment should be granted for
procedural reasons. After receiving Russell’s letter proposing termination, Pechin
requested and received a hearing before a county hearing officer. The hearing took place
on August 29, 2011. The hearing officer found Russell’s allegations true and deemed
Pechin terminated as of September 20, 2011. Citing Miller v. City of Los Angeles (2008)
169 Cal.App.4th 1373, the county argued to the trial court that, having opted to
participate in the hearing before the hearing officer, Pechin was barred from filing a civil
action until after he exhausted his administrative and judicial remedies by filing an
administrative appeal and, if unsuccessful, filing a petition for a writ of administrative
mandate in the superior court. Since Pechin never did this, the hearing officer’s decision
had collateral estoppel effect, which also barred the suit.
       As evidence in support of this procedural argument, the county submitted
declarations by county employee Matthew Constantine, who was the hearing officer, and
by Deputy County Counsel Kendra Graham, who represented the county at the hearing.
The declarations stated that the hearing took place and evidence was taken. The county’s
motion papers also included the hearing officer’s written decision.



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       In his opposition to the county’s motion, Pechin agreed it was undisputed that
Russell gave him the letter proposing his termination, he submitted his responsive letter,
and the hearing before Constantine took place, leading to the final decision to terminate
him. Pechin argued, however, that the county failed to carry its burden of presenting
evidence in support of its argument that it terminated him for legitimate reasons. He
claimed the county had “not provided any evidentiary facts in support of the reasons for
the termination.” Pechin did not, however, explain how the evidence the county
submitted (i.e., Russell’s letter, Constantine’s written decision, and the declarations by
Constantine and Graham) was deficient.
       The evidence Pechin submitted to support his claims consisted of his own six-
paragraph declaration. Regarding age discrimination, the declaration stated that when he
was fired he was 66 years old. On August 8, 2011, three days after Russell gave Pechin
the letter proposing Pechin’s termination, an employee “at least 15-20 years younger”
than Pechin was hired by the Construction Services Division. After a probationary
period, this employee became a supervising engineer, which was Pechin’s title as well.
Further, four other employees “referred to [Pechin] in terms that discriminated against
[him] on the basis of [his] age.” The terms they used “included calling [Pechin] ‘senile’
and ‘viejo,’ which is a Spanish word meaning ‘old man.’” All four of these employees
were women who were mentioned either in Russell’s letter or in Pechin’s response in
connection with the complaints of gender bias on Pechin’s part.
       On whistleblower retaliation, Pechin’s declaration stated that in late 2010, Pechin
began complaining to Russell and an employee of the county’s fire department that
Pechin’s agency, the Construction Services Division, was charging other county agencies
“exorbitant” fees for architectural and engineering services. These fees were 18 to 24
percent of project costs, compared with 8 to 10 percent typically charged by private firms
for these services. Pechin told Russell and the fire department employee that taxpayer



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funds were being wasted because of this. Russell and Frapwell began accusing Pechin of
improper behavior after this.
       Pechin’s opposition to the motion also argued that he did everything necessary to
exhaust his administrative remedies. He submitted a claim to the DFEH and, in response,
obtained a right-to-sue letter. A copy of the right-to-sue letter was included with
Pechin’s opposition papers. He argued that there was no need to file an administrative
appeal or a petition for a writ of administrative mandate because the hearing in which
Pechin participated was not “a full evidentiary hearing before a Civil Service
Commission.”
       Pechin did not attempt to overcome the county’s arguments on the breach-of-
contract claim. That claim is mentioned nowhere in Pechin’s memorandum of points and
authorities or in his separate statement of disputed and undisputed facts.
       The trial court agreed with the county, both on the procedural issue and on the
merits. It granted the motion in its entirety.
                                       DISCUSSION
       We review an order granting summary judgment de novo. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and
apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58
Cal.App.4th 915, 925.)
       The trial court must grant the motion if “all the papers submitted show that there is
no triable issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
p. 850.) We view the facts in the light most favorable to the nonmoving party and
assume that, for purposes of our analysis, his version of all disputed facts is correct.

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(Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153,
159.)
        A moving defendant can establish its entitlement to summary judgment by either
(1) demonstrating that an essential element of the plaintiff’s case cannot be established or
(2) establishing a complete defense. (Code Civ. Proc., § 437c, subd. (o).)
I.      Age discrimination
        For purposes of FEHA discrimination claims, California courts use the three-stage,
burden-shifting test adopted by the United States Supreme Court for federal
discrimination claims in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 353 (Guz).) At trial, the plaintiff first has
the burden of making a prima facie case of discrimination. (Id. at p. 354.) If he or she
does so, a presumption of discrimination arises and the burden shifts to the defendant to
rebut the presumption by producing evidence that the action was taken for a
nondiscriminatory reason. (Id. at pp. 355-356.) If this happens, the burden shifts back to
the plaintiff to show the defendant’s proffered reason is a pretext or to show
discrimination in some other way. The plaintiff has the ultimate burden of persuading the
finder of fact that discriminatory conduct took place. (Id. at p. 356.) For an age-
discrimination claim, a plaintiff can establish a prima facie case by showing (1) the
defendant took an adverse employment action against the plaintiff; (2) the plaintiff was
40 or older at the time of the action; (3) the plaintiff was performing his or her job
satisfactorily at the time of the action; and (4) the plaintiff was replaced by a significantly
younger person. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1002-1003.)
        A defendant’s motion for summary judgment can properly be granted, even when
the plaintiff produces evidence sufficient to establish a prima facie case, if the plaintiff’s
evidence is too weak to support an inference of discrimination in light of the defendant’s
evidence of a nondiscriminatory basis for the action. (Guz, supra, 24 Cal.4th at pp. 361-

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362.) “‘Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These include the strength of the plaintiff’s prima facie
case, the probative value of the proof that the employer’s explanation is false, and any
other evidence that supports the employer’s case .…’” (Id. at p. 362 [quoting Reeves v.
Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148-149].) “[A]n employer is
entitled to summary judgment if, considering the employer’s innocent explanation for its
actions, the evidence as a whole is insufficient to permit a rational inference that the
employer’s actual motive was discriminatory.” (Guz, supra, at p. 361.)
       In this case, the evidence supporting a finding of discrimination is weak, and the
evidence of nondiscriminatory reasons for the termination is strong. Pechin denied he did
anything wrong, but he did not deny that he and his superiors had a series of
disagreements over his outside projects, and that instead of acting to address their
concerns, he denied their authority to control him. The undisputed fact that Pechin was
hired only four years before his termination further undermines the inference that he was
discriminated against based on his age. Pechin’s evidence that other, nonsupervisory
employees called him names does little, under these circumstances, to support an
inference of discrimination. There is no evidence that Pechin’s superiors were ever made
aware of the name calling, let alone any evidence that they shared in any discriminatory
animus the name callers might have harbored.
       Pechin contends that Russell’s letter of August 5, 2011, is “at best … the
conclusory opinion of [a] third party” and is “not evidence [of] what Pechin did or didn’t
do.” He suggests that Russell’s statements are merely a report of his interviews with
other employees. Many of the statements in Russell’s letter are based on Russell’s first-
hand interactions with Pechin, however. Moreover, much of the substance of Russell’s
letter is confirmed by Pechin’s responsive letter of August 12, 2011. For instance,
Pechin’s letter confirms the existence of his outside work, maintains there was no
impropriety, and denies the authority of the county to direct him to stay away from his

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outside projects. The letter disputes the claims of impropriety regarding his outside
projects, but it confirms that he engaged in outside work, that he had a disagreement with
his superiors over that work, and that he did not submit to their authority in the matter. It
is undisputed, in other words, that Pechin and his superiors were quarreling over Pechin’s
outside work and he was not changing his behavior to their satisfaction. This is evidence
of a nondiscriminatory reason for the county’s decision to terminate his employment, and
it is much stronger evidence than Pechin’s bare-bones prima facie case of age
discrimination. Under the standards set out in Guz, the evidence as a whole is
insufficient to permit a rational inference of a discriminatory motive.
       For these reasons, we conclude the trial court was correct in its determination that
Pechin’s age-discrimination claim does not present a triable issue of material fact.
II.    Whistleblower retaliation
       In the complaint, Pechin alleged that he told his supervisors the Construction
Services Division was charging other county departments too much for its services. The
complaint went on to say Pechin was fired for saying this, and the firing consequently
“constitutes wrongful termination as set forth in Government Code [section] 12940.”
Government Code section 12940 lists employment practices deemed unlawful by the
FEHA.
       The alleged facts, if true, would not constitute a violation of Government Code
section 12940. The anti-retaliation provisions of that section prohibit retaliating against
an employee who has opposed, complained of, testified about, or participated in a
proceeding related to discrimination under the FEHA (Gov. Code, § 12940, subd. (h)) or
who has made a report pursuant to Penal Code section 11161.8 regarding patient abuse
by health facilities (Gov. Code, § 12940, subd. (g)). Pechin never claimed he did any of
those things.
       Another statute, Labor Code section 1102.5, prohibits retaliation against an
employee who reports information and “has reasonable cause to believe that the

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information discloses a violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation .…” (Lab. Code,
§ 1102.5, subd. (b).) Pechin never claimed he reported any such violation.
       In its motion for summary judgment, the county pointed out that the facts alleged
in the complaint are not actionable under these laws. In his opposition to the motion,
Pechin added details to his assertion that he had informed his superiors of his view that
the Construction Services Division charged too much, but he did not claim or produce
any evidence that he reported a law violation or opposed or complained of discrimination.
       In his briefs on appeal, Pechin does not argue that he ever claimed or produced
evidence that he was fired for opposing discrimination or reporting a violation of law. He
also does not attempt to explain how the facts he has adduced might support a retaliation
claim based on some authority other than Government Code section 12940 or Labor
Code section 1102.5.
       In light of the foregoing, we can only conclude that the trial court was correct in
finding that Pechin failed to raise a triable issue of material fact on his claim of
whistleblower retaliation.
III.   Breach of contract
       The trial court held that the county was entitled to judgment on the breach-of-
contract claim because public employment in California is not held by contract; its terms
are instead governed by statute. (See Retired Employees Assn. of Orange County, Inc. v.
County of Orange (2011) 52 Cal.4th 1171, 1181-1182; Olson v. Cory (1980) 27 Cal.3d
532, 537-538.) In his briefs in this appeal, Pechin makes no attempt to support the merits
of his breach-of-contract claim. Consequently, he has forfeited the issue. (Nielsen v.
Gibson (2009) 178 Cal.App.4th 318, 324 [points not supported by analysis of facts and
citation of legal authority are deemed forfeited].)




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                                  DISPOSITION
     The judgment is affirmed. Costs on appeal are awarded to the county.

                                                           _____________________
                                                                         Smith, J.

WE CONCUR:

_____________________
Poochigian, Acting P.J.

_____________________
Franson, J.




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