Filed 4/16/13 Rush v. City of Oakland CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


KARLA M. RUSH,
         Plaintiff and Appellant,
                                                                     A134024
v.
CITY OF OAKLAND et al.,                                              (Alameda County
                                                                     Super. Ct. No. RG09477417)
         Defendants and Respondents.


         Former Oakland Police Officer Karla M. Rush sued the City of Oakland (the City)
and the Oakland Police Department (OPD) for gender discrimination after the City
terminated her employment following an internal investigation of false search warrant
affidavits executed by Rush and other OPD officers. Defendants moved successfully for
summary judgment, and Rush appeals. We affirm the judgment in favor of defendants.
                                               I. BACKGROUND
         Rush was hired as a police officer by OPD in June 2000, and terminated from her
employment in April 2009. She sued OPD and the City in October 2009, alleging her
gender was a motivating reason for her termination in violation of the California Fair
Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA). Defendants moved
successfully for summary judgment in 2011, and this timely appeal followed.
         In their motion for summary judgment, defendants alleged the following facts
were undisputed:
         In September 2006, Rush became a problem-solving officer in district 5 (PSO 5), a
position she held until her termination. In the summer of 2008, Rush was the subject of
multiple internal affairs division (IAD) investigations begun in response to citizen
complaints about search warrants executed at their homes. During these investigations, it
was discovered Rush had submitted search warrant affidavits containing untruthful
information. Rush’s affidavits falsely asserted suspected narcotics obtained during what
is known as an ―X buy‖ had been tested by the OPD’s crime lab when, in fact, they had
not been tested.1 The scope of the IAD investigation expanded when it was discovered
that additional false search warrant affidavits were authored by Rush as well as 18 other
officers.
       The investigator was asked to determine if the subject officers violated two
specified rules in OPD’s ―Manual of Rules‖: (1) ―REPORTS AND BOOKINGS‖ (―No
member or employee shall knowingly falsify any official report or enter or cause to be
entered any inaccurate, false or improper information in the records of the Department‖);
and (2) ―TRUTHFULNESS‖ (―Members and employees are required to be truthful at all
times whether under oath or not‖). The investigator interviewed all of the subject
officers, 22 witness officers, two vice charging officers, six current and former
criminalists in the crime lab, and confidential informants involved in the X buys in
question. Rush was interviewed three times and was represented by an attorney at all
three interviews.
       The IAD investigator established that the crime lab does not test all suspected
narcotics it receives. Suspected drugs are typically not tested absent a request for testing
made by an officer either directly to a lab criminalist or through the narcotic vice
charging officers. It is the officer’s responsibility to follow up with the lab to find out the
results of any drug analysis requested. Many of the subject officers, including Rush,
mistakenly believed submission of a narcotics envelope constituted a request for drugs to
be tested, or that if they obtained a tracking number (―D number‖) for the submission,

       1
         An X buy occurs when an officer uses a confidential informant to purchase
suspected narcotics at a location where the officer believes narcotics are being sold. The
purpose of conducting an X buy is to gather probable cause to obtain a warrant to search
the location for narcotics.


                                               2
this constituted proof the suspected drugs had been tested.2 But Rush was the only
subject officer who did not believe she needed to follow up with the lab to find out the
results of the drug test before asserting in search warrant affidavits that the drugs had
been tested. She stated she believed the crime lab tested all suspected drug evidence it
received even though she also admitted that, on more than one occasion, she had been
called to testify in court and her testimony was delayed because the drug evidence had
not been tested by the lab.
       From March 2007 through August 2008, Rush prepared 40 X buy search warrant
affidavits. In 35 of the warrants, the suspected drugs were never tested by the crime lab.
In another four, the suspected drugs were tested, but not until after the search warrant was
issued. For one warrant, it could not be determined whether the test occurred before or
after the issuance of the warrant. Rush’s 39 confirmed false search warrant affidavits
were far more than any of the other subject officers. Fifteen of the subject officers had
three or fewer untruthful affidavits, and the officer with the second highest number of
false search warrants had 10.
       Like other officers, Rush used templates to prepare her search warrant affidavits.
In her earlier affidavits she stated a ―presumptive test‖ was conducted at the crime lab or
the Eastmont Substation ―which yielded that [the suspected cocaine or other drug] indeed
contained [cocaine or other drug].‖ Rush’s later search warrant affidavits represented
that ―[a] test was conducted on the narcotics, which yielded that it indeed contained [the
suspected drug].‖ When questioned about her use of the term ―presumptive test,‖ Rush
stated she believed a presumptive test was her visual inspection of the substance
purchased by the informant. The IAD investigator did not find Rush to be credible on
this point.3 Even when she used the later affidavit template without the ―presumptive


       2
        Rush was not one of the officers who asserted the so-called ―D number defense.‖
Assignment of a D number in fact had nothing to do with whether the evidence had been
tested.
       3
        The investigator cited three grounds for his credibility finding. First, the
majority of the other officers interviewed (including witness officers) understood a

                                              3
test‖ language, Rush claimed the ―test‖ it referred to was still her visual inspection. She
admitted the statement the suspected drugs ―indeed‖ tested positive in that template was
―extremely vague‖ and was a ―strong statement‖ suggesting it was based on a chemical
test report rather than ―just my assumption, visual inspection‖ of the suspected drug.
       The IAD investigator ultimately concluded Rush violated the OPD’s rules on
―Reports and Bookings‖ and ―Truthfulness‖ due to her submission of 39 false search
warrant affidavits. The investigator also sustained charges of misconduct against 13
other subject officers. During the same time period, Rush was also the subject of an IAD
investigation concerning allegations of false arrest in connection with another search
warrant she executed, made by residents of the home searched. That investigation
concluded Rush arrested the residents without probable cause and obtained the search
warrant based on false information.
       IAD recommended all of the officers who received sustained findings for violation
of the ―Reports and Bookings‖ and ―Truthfulness‖ rules be terminated pursuant to the
OPD’s discipline policy. Under the policy, termination is the only penalty available for
officers who violate these rules, even if it is a first offense. Termination for
untruthfulness is also the ―industry standard‖ in the law enforcement field. It is
understood any sustained finding of untruthfulness against an officer must be disclosed to
the defense under Brady v. Maryland (1963) 373 U.S. 83 (Brady) in any case in which
the officer testifies.4 The OPD issued notices of proposed termination to 11 officers,
including Rush, who were found to have violated the subject rules.




presumptive test is performed by officers with a portable chemical testing kit. Second,
the officer Rush identified as her mentor testified it was his practice to use these kits and
he believed Rush was aware of that. Third, given Rush’s narcotics enforcement
experience, it seemed unlikely she did not understand what a presumptive test was.
       4
         Ultimately, seven of the officers with a sustained finding of untruthfulness were
not terminated. Three of the 10 male officers were disciplined with a one-day suspension
for performance of duty violations.


                                              4
       An outside hearing officer was retained by OPD to provide the subject officers the
opportunity to respond to the proposed discipline.5 The hearing officer concluded only
three of the officers, including Rush, should be terminated. In April 2009, the City
terminated the employment of Rush and three other officers based on the investigative
findings of IAD and the recommendations of the chief of police and outside hearing
officer. The fourth officer terminated, a male, was terminated notwithstanding the
hearing officer’s recommendation because OPD believed the hearing officer
misunderstood the facts of that particular case. A fifth officer, also male, who had been
on medical leave during the main investigation, was terminated in September 2009, for
submitting false search warrant affidavits.
       The Oakland Police Officers’ Association (OPOA) grieved Rush’s termination
through a six-day binding arbitration proceeding in 2010, on the question of whether the
City had just cause to terminate her employment. The arbitrator concluded it was not
plausible Rush believed mere submission of a drug envelope meant a test had been
conducted and the test revealed the substance to be a narcotic. The arbitrator accordingly
concluded the statements in the affidavits that a drug test had been conducted and it
revealed the contents of the envelope ―indeed‖ contained narcotics were made knowing
they were untrue. Regarding Rush’s claims concerning her understanding of the
presumptive test language in some of the affidavits, the arbitrator noted the affidavits
lacked any description of any physical examination or visual test Rush conducted of the
suspected narcotic. The arbitrator rejected OPOA’s assertion Rush’s misconduct was
caused by a lack of training, stating ―[t]elling the truth is not a matter of training,‖ and
Rush was not being terminated for failing to follow OPD procedures but for untruthful
statements presented to judges to obtain search warrants.
       The arbitrator also rejected OPOA’s claim Rush was treated more severely than
the male officers, finding her 39 false affidavits ―clearly set her apart from the other

       5
         Commonly known as a Skelly hearing, this procedure is required by due process
considerations when a public employer proposes to discipline an employee. (See Skelly
v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).)


                                               5
officers,‖ and noting OPD recommended termination of all 11 officers who received
sustained findings for submitting false reports. Regarding the effect of Brady, the
arbitrator concluded the findings that Rush submitted untruthful affidavits in conjunction
with 39 search warrants would have to be disclosed to defense attorneys, would hamper
the prosecutor’s ability to rely on Rush as a witness, and constituted ―serious
misconduct‖ regardless of its Brady implications.
                                     II. DISCUSSION
       Rush contends she came forward with evidence of a prima facie case of gender
discrimination, as well as evidence from which a rational trier of fact could infer
intentional discrimination.
A. Applicable Law
       In cases alleging adverse employment actions in violation of FEHA, the trial
courts apply the same three-stage, burden-shifting test established by the United States
Supreme Court for trying claims of discrimination based on a theory of disparate
treatment. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804
(McDonnell Douglas).) The plaintiff bears the initial burden to establish a prima facie
case of discrimination. (Morgan v. Regents of University of California (2000)
88 Cal.App.4th 52, 68.) ―Generally the plaintiff must provide evidence that (1) he was a
member of a protected class, (2) he was . . . performing competently in the position he
held, (3) he suffered an adverse employment action, such as termination . . . , and
(4) some other circumstance suggests discriminatory motive.‖ (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 355 (Guz).) The specific elements of a prima facie case may
vary depending on the particular facts. (Ibid.)
       If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
employer to produce admissible evidence its action was taken for a legitimate,
nondiscriminatory reason. If the employer meets this burden, the presumption of
discrimination is dispelled and it becomes the plaintiff’s burden to prove the employer’s
proffered reasons were pretexts for discrimination or to offer any other evidence of
discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355–356.)


                                              6
       The fact finder may consider the evidence establishing the prima facie case and
inferences properly drawn from that evidence on the issue of whether the employer’s
justification is a pretext. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S.
133, 143.) But the plaintiff must do more than establish a prima facie case and deny the
credibility of the employer’s witnesses. The plaintiff must produce specific, substantial
evidence of pretext, and a triable issue of fact can be created only by a conflict of
evidence, not by speculation or conjecture. (Horn v. Cushman & Wakefield Western, Inc.
(1999) 72 Cal.App.4th 798, 807.)
       To show pretext, the plaintiff cannot simply show the employer’s decision was
wrong, mistaken, or unwise. The evidence must expose such weaknesses,
implausibilities, inconsistencies, or contradictions in the employer’s explanation for its
actions that a reasonable fact finder could rationally find those explanations unworthy of
credence, and thus infer the employer acted for other reasons it chose not to reveal.
(Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).)
       In the summary judgment context, the burdens are reversed. ―Commonly, an
employer will seek summary judgment, arguing that the plaintiff has not satisfied one of
the four elements of the prima facie case and thus is not entitled to proceed to trial, or that
there is no disputed issue of material fact regarding the motivation behind the adverse
employment decision.‖ (Caldwell v. Paramount Unified School Dist. (1995)
41 Cal.App.4th 189, 202.) ―If the employer presents admissible evidence either that one
or more of plaintiff's prima facie elements is lacking, or that the adverse employment
action was based on legitimate, nondiscriminatory factors, the employer will be entitled
to summary judgment unless the plaintiff produces admissible evidence which raises a
triable issue of fact material to the defendant’s showing.‖ (Id. at p. 203.)
B. Rush’s Prima Facie Case
       There is no dispute Rush was a member of a protected class and suffered an
adverse employment action. Defendants maintain, however, there was no triable of issue
of material fact with respect to whether Rush was performing competently as a police



                                              7
officer or whether any circumstances existed suggesting her termination was motivated
by her gender.
       As to the issue of Rush’s job performance, defendants point to the undisputed
evidence Rush had multiple sustained allegations of misconduct at the time of her
termination, as well as sustained allegations she had arrested two citizens without
probable cause. Further, those findings had been upheld by an outside hearing officer,
and an arbitrator had recommended she be terminated after binding arbitration. Rush
cites evidence her direct supervisor and her coworkers believed she was a hard worker,
and was competently performing the duties required by her position when she was
terminated.
       The burden of establishing a prima facie case of discrimination is not onerous.
(Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253.) It is designed
to eliminate only the most patently meritless claims. (Guz, supra, 24 Cal.4th at p. 354.)
Consistent with that standard, some courts distinguish between misconduct on the job
that might be grounds for termination and the minimal competence in job performance
required to make a prima facie showing of discrimination. (See, e.g., Wills v. Superior
Court (2011) 195 Cal.App.4th 143, 167–168 (Wills); Sista v. CDC Ixis North America,
Inc. (2d Cir. 2006) 445 F.3d 161, 171–172; Owens v. New York City Housing Authority
(2d Cir. 1991) 934 F.2d 405, 409 (Owens).) As stated in Owens: ―We have no doubt that
. . . misconduct may certainly provide a legitimate and non-discriminatory reason to
terminate an employee. This misconduct is distinct, however, from the issue of minimal
qualification to perform a job. An individual may well have the ability to perform job
duties, even if her conduct on the job is inappropriate or offensive. Accordingly, the
finding of misconduct here cannot preclude [the plaintiff] from showing her qualification
for employment as required by McDonnell Douglas.‖ (Id. at p. 409.)
       The record in this case discloses Rush received very positive performance
evaluations before the inception of the IAD investigations. The arbitrator concluded
Rush had ―conducted herself as a professional police officer‖ during her career, although
this did not negate the good cause the arbitrator found the City had to terminate her


                                             8
employment. In our view, Rush met her prima facie burden to show she performed
competently in her job. At the same time, the evidence of Rush’s misconduct on the job
meets the City’s burden to show a legitimate, nondiscriminatory reason for discharging
her, placing the burden on Rush to show this reason was pretextual. (See Wills, supra,
195 Cal.App.4th at p. 171.)
       With regard to the fourth required element of her prima facie case—the existence
of a circumstance suggesting a discriminatory motive—Rush asserts there was evidence
similarly situated male employees were treated more favorably. She focuses on the fact
the City allegedly did not terminate all of the male officers who submitted false warrant
affidavits, but only those officers who, unlike her, were also found to have lied to IAD.
While there is good reason to question whether the record supports this assertion, we will
assume Rush has met her minimal prima facie burden of showing some circumstance
arguably suggesting discriminatory motive. We proceed to consider whether OPD has
come forward with a legitimate, nondiscriminatory reason for discharging Rush and
whether Rush met her burden of coming forward with ―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.‖ (Hersant, supra, 57 Cal.App.4th at p. 1005.)
       Rush effectively concedes the City has offered a legitimate, nondiscriminatory
reason for discharging her, namely, her submission of false search warrant affidavits.6
She contends there are triable issues of fact as to whether the City’s stated reasons were
nonetheless pretextual because she came forward with (1) substantial evidence she was
held to a higher standard and punished more severely than male coworkers found to have
engaged in the same conduct; and (2) other evidence of inconsistency, pretext, and
gender bias within OPD.

       6
         The City terminated Rush not only for the false affidavits but also for sustained
IAD findings, after an investigation resulting from a citizen complaint, that she arrested
two citizens without probable cause stemming from a false search warrant affidavit.


                                             9
C. Disparate Treatment Evidence
       To support her claim she was held to a higher standard than male officers, Rush
asserts four male officers (designated Nos. 3, 4, 12, and 16) committed more egregious
misconduct than her—lying in the IAD investigation—yet were not terminated. The
evidence simply does not support the disparate treatment claim Rush is trying to make
relative to these officers. First, there is no substance to her assertion she was truthful
during the IAD investigation whereas the male officers lied. The IAD report on Rush’s
false warrants stated the preponderance of the evidence showed Rush ―was untruthful in
her interviews with investigators,‖ and made a specific finding to that effect. The notices
of proposed termination sent to Rush in connection with both the false affidavit and arrest
without probable cause investigations stated, ―[I]t was determined that you were
untruthful‖ in the investigations. Second, the four male officers had submitted a total of
eight false warrant affidavits between them, while Rush had submitted 39 false affidavits,
and had an additional sustained finding—resulting from a citizen complaint—of making
two arrests without probable cause. There is simply no substantial evidence on this
record from which a reasonable jury could conclude Rush’s gender, not the extent and
seriousness of the findings against her, was the reason the City treated her more harshly
than the other officers she cites.
       Additionally, OPD did not initially recommend lighter punishment for three of the
four male officers Rush mentions. It recommended termination of these officers as well,
even though they were responsible for only a fraction of the number of false affidavits for
which she was responsible. It relented as to these officers only after the outside Skelly
officer recommended they be exonerated. Rush has no complaint that OPD treated her
unfairly in making its initial recommendations that 12 officers be terminated. She objects
solely to OPD’s decision to mostly follow the recommendations of the outside Skelly
officer, Edward Kreins, that termination was not in fact warranted in 8 of the 11 original
termination cases. As explained by Lieutenant Sean Whent (who supervised the IAD
investigation), OPD’s decisions about which terminations to pursue after the Skelly
hearings were based on tactical judgments about the likelihood the City would prevail in


                                              10
arbitration with the OPOA in the face of an adverse Skelly hearing result.7 Rush
dismisses that explanation. She characterizes Kreins as a mere ―tool to implement the
discriminatory intent‖ of Whent and OPD Chief Howard Jordan. But we find no
evidence in the record to support this claim. Kreins was not an OPD employee and there
is no evidence he was beholden to or influenced by Whent or Jordan. Considering that
Kreins rejected most of OPD’s recommendations, the evidence is, if anything, to the
contrary.8 If there was no discriminatory intent shown by OPD’s initial
recommendations, as Rush concedes, and no evidence OPD manipulated the Skelly
officer’s recommendations or responded to them in an inconsistent manner, her gender
discrimination theory falls apart.
       Rush further contends she was the only officer terminated based on a finding she
―should have known‖ her affidavits contained false information whereas the male officers
who claimed not to fully comprehend the language in their affidavits (designated by Rush
as Nos. 8, 13, and 15) were not terminated due to what they ―should have known.‖ This
mischaracterizes the evidence. OPD initially recommended termination of all of the
officers in question. The male officers were alleged to be responsible for 12 false
affidavits between them compared to Rush’s 39 false affidavits. The Skelly officer
recommended against termination of the male officers because he found Officers Nos. 8,
13, and 15 committed no deliberate or knowing violation of rules and did not falsify any
affidavits. In boilerplate language, he noted these officers were ―remiss in not fully
understanding the ramifications of the language in the affidavits.‖ Similar language
suggesting negligence or sloppiness in submitting affidavits without understanding their


       7
         OPD’s concerns proved to be prescient. In the four cases where OPD followed
the Skelly officer’s recommendation to terminate an officer, the termination was upheld
in arbitration or otherwise became final. In the one case where OPD sought termination
notwithstanding the Skelly officer’s recommendation for lighter discipline, the City lost
the ensuing arbitration.
       8
         Whent testified he had never heard of Kreins before he was chosen to conduct
the Skelly hearings. He thought Kreins had been a chief of police in Beverly Hills or
somewhere else in Southern California.


                                            11
contents also appeared in the Skelly officer’s findings as to all three of the officers he
recommended for termination, including Rush, but in all three cases the officer also
found persuasive evidence of untruthfulness.
       In Rush’s case, the Skelly officer acknowledged Rush’s contentions that she did
not always read the affidavits and that her actions were the result of poor training and
mistakes rather than malice. He nonetheless found her actions were deliberate as well as
negligent and reckless, and that she was untruthful in her affidavits, both in her use of
template testing language and in averring on four occasions that she observed the
confidential informant go to the front door of the target residence, which she admitted
was untrue. Although he also found Rush ―remiss in not fully understanding the
ramifications of the language in the affidavits,‖ this was plainly not the basis for his
recommendation of dismissal. No substantial evidence in the record supports Rush’s
claim she alone was terminated because she ―should have known‖ her affidavits
contained false information. She was terminated because she either knew the affidavits
were false or was, at minimum, recklessly indifferent to whether they were true or false,
and because the City was confident it could prove this if the matter went to arbitration.
       Rush further contends she was terminated in part because the IAD investigation
and Skelly officer found she did not have a ―credible‖ understanding of the ―presumptive
test,‖ whereas a male officer with the same understanding as Rush’s (Officer No. 8) was
not terminated. In fact, the IAD investigator found Rush was being untruthful when she
claimed not to know what a presumptive test actually was. The basis for this finding was
that she (1) was mentored by a more experienced officer who was very familiar with
presumptive tests and was sure he had shown Rush how to perform such tests, and (2) she
had worked for two years in an environment in which it was very unlikely she would not
have learned about this subject. The IAD report stated: ―Based on [Officer No. 15’s]
statement and the close working relationship between him and Rush, it is reasonable to
conclude that Rush had more knowledge of chemical tests than what she led IAD and
CID investigators to believe. . . . It defies logical reasoning that with Rush’s knowledge



                                              12
base in the area of narcotics and being immersed in the environment that she was in, that
she would have no understanding of what a presumptive test truly was.‖
       Officer No. 8 by contrast authored a total of eight drug warrant affidavits, of
which only two were in issue in the IAD investigation. In both cases, the warrants
incorrectly represented that drugs turned into the crime lab had tested positive. One was
tested after the date of the affidavit, and the other was never tested. The officer claimed
the affidavits were not false because he had conducted his own chemical tests on the
drugs in those cases, but the investigator found the officer’s defense disingenuous for
multiple reasons. Under questioning by IAD, Officer No. 8 had claimed to believe the
term ―presumptive test‖ meant only a visual inspection as opposed to a chemical test,
which was possibly a fabrication to avoid having to explain why he had not used the
template language referring to presumptive testing of the suspected narcotics. It is
impossible to draw any conclusions about Officer No. 8’s veracity or sincerity on this
point from the short excerpt of the officer’s interview Rush provides. In any event, IAD
focused on other improbabilities in his defense and did not mention his claimed
misapprehension about ―presumptive tests‖ in concluding Officer No. 8 was being
untruthful and recommending his termination. The Skelly officer for his part found there
was no evidence Officer No. 8 did not test the drugs himself, and recommended lighter
discipline. We fail to see how Officer No. 8’s circumstances are probative of gender
discrimination or inconsistent treatment by the City. He was responsible for two false
warrants compared to Rush’s 39. Unlike in Rush’s case, there was no direct connection
between the falsity of Officer No. 8’s two warrant affidavits and the sincerity of his
purported beliefs about presumptive testing. In any event, OPD believed both officers
had knowingly submitted false affidavits and would have terminated both of them but for
the practical difficulty of overcoming the Skelly officer’s rejection of OPD’s findings on
Officer No. 8.
       Rush claims disparate treatment based on the asserted fact that some of the male
officers (designated as Officers Nos. 7, 11, 13) were excused for their false affidavits due
to inadequate training, but Rush was not. We note first the three officers were accused of


                                             13
executing one false affidavit each, compared to 39 executed by Rush. Further, two of the
three officers were not excused by OPD for lack of training, but were originally
recommended for termination by OPD. In the case of the third officer, Officer No. 7, the
warrant was his first and only X buy. He worked under Rush’s tutelage who assured him
it was okay to get the warrant after dropping the suspected drugs off at the crime lab and
getting a D number. On these facts, the IAD investigator found insufficient evidence to
conclude Officer No. 7 intentionally submitted a false affidavit. Officers Nos. 11 and 13
were recommended for light or no discipline by the outside Skelly hearing officer. In the
case of Officer No. 11, Kreins emphasized the insufficiency of the evidence the officer
was lying, not inadequate training, as his reason for recommending no discipline. Officer
No. 13 was recommended by IAD for termination based on the only search warrant
affidavit he authored in which a warrant was issued by a judge. Another officer had
assisted him in preparing the affidavit and had supplied the lab testing language that was
false. Officer No. 13 claimed he did not review the affidavit before signing it and was
unaware of the language. Kreins emphasized the officer’s inexperience and
recommended lighter discipline based on the officer’s failure to read the affidavit. The
inference of gender discrimination Rush proposes we draw from the evidence concerning
these officers is simply not reasonable.
       In sum, we find Rush did not come forward with substantial evidence she was
treated more harshly in the City’s disciplinary process than similarly situated male
officers.
D. Other Evidence of Pretext and Bias
       Rush claims OPD’s ―stated reason for terminating‖ her—that she ―did not fully
comprehend the language of the warrants‖—was pretextual because that was a training
issue and not grounds for termination. We emphatically reject the premise of Rush’s
argument. She was terminated for knowingly submitting 39 false affidavits, lying to
investigators, and other acts of untruthfulness in connection with the false arrest and other
investigations. Rush mischaracterizes Sean Whent’s deposition testimony to support her
premise. He did not testify she was terminated because she should have had a better


                                             14
understanding of the language in the affidavits. Whent testified he personally believed
Rush may not in fact have read or reviewed the affidavits she signed under penalty of
perjury but that she nonetheless routinely signed them without any regard for whether
they were true or false. This is a truthfulness issue, not a training issue, and does not in
any way support an inference of pretext. While one or two phrases in the lengthy paper
trail leading to Rush’s dismissal reference arguably negligent conduct, in addition to
multiple findings of untruthfulness, these isolated phrases are insufficient to support an
inference of pretext.
       Finally, Rush contends the trial court erred in failing to consider certain evidence
of gender bias in OPD, consisting of general comments about issues facing female
officers. She argues such evidence should have been considered ―in combination with
substantial evidence [she offered] that similarly situated male officers were treated more
favorably . . . and . . . the Defendants’ reasons . . . were pretextual.‖ We disregard the
hearsay evidence Rush offered of comments purportedly made to her by Lieutenant
Sharon Williams about female officers having to work harder. The City timely objected
to the evidence, the court sustained the objection, and we find no error or abuse of
discretion in that ruling. The other evidence to which Rush refers suggests at most that
female officers in OPD, like female employees in a variety of other institutional settings,
face greater challenges in working conditions and promotions than male officers. We do
not believe such evidence, standing alone, is sufficiently substantial to create a triable
issue of fact as to whether gender discrimination was a motivating factor in Rush’s
termination.
                                    III. DISPOSITION
       The judgment is affirmed.




                                              15
                                 _________________________
                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




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