Filed 2/3/16 Saavedra v. City of Oakland CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


ARNOLD SAAVEDRA,
         Plaintiff and Appellant,
                                                                     A142088
v.
CITY OF OAKLAND et al.,                                              (Alameda County
                                                                     Super. Ct. No. RG11559931)
         Defendants and Respondents.


         Arnold Saavedra sued the City of Oakland (City) and two City supervisors for
claims related to discrimination and retaliation in the workplace. The trial court granted
summary judgment to the City, ruling that all of Saavedra’s claims were barred by failure
to exhaust administrative and judicial remedies, and that Saavedra failed to raise triable
issues of fact that he suffered adverse employment actions resulting from either
discrimination or retaliation. We reverse those rulings. The court also determined that
Saavedra’s tort and Labor Code claims were time-barred, a ruling which we affirm.
Accordingly, we reverse the judgment in part and remand for further proceedings.
                                       I.        FACTUAL BACKGROUND
         We summarize the evidence that was submitted in support of and in opposition to
summary judgment and cited in the separate statement of undisputed facts and the
response and reply thereto.1 (See Parkview Villas Assn., Inc. v. State Farm Fire &

         1
        As explained post, the second part of Saavedra’s response to the separate
statement (linking the alleged undisputed facts to issues raised in the City’s motion) is
incomplete and at times inconsistent with the first part (which responds to each of the

                                                             1
Casualty Co. (2005) 133 Cal.App.4th 1197, 1213 [citing “ ‘golden rule’ ” of summary
judgment: “ ‘ “if it is not set forth in the separate statement, it does not exist” ’ ”].) We
disregard evidence if the trial court sustained an objection and the court’s ruling is not
challenged on appeal, and we consider evidence if the trial court overruled an objection
and the objection is not renewed on appeal.2 (Frittelli, Inc. v. 350 North Canon Drive,
LP (2011) 202 Cal.App.4th 35, 41 & fn. 1.) We resolve conflicts in the evidence and
draw reasonable inferences in the light most favorable to Saavedra, as the party opposing
summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A.     1999 to May 2008: 7101 Edgewater Drive
       Saavedra, who is Mexican and Native American, was hired in 1999 as a part-time
custodian for the City’s Public Works Agency, a nonpermanent position. From 2004 to
2007, he worked on a “roving crew” based at 7101 Edgewater Drive (Edgewater) under
the supervision of Renay Jackson. Saavedra was not reimbursed for work use of his
personal car during this assignment.3 In July 2007, he applied for a full-time position and
was qualified for the position, but an African-American with less seniority was hired.
B.     May 2008 to March 2010: Civic Center Complex
       In May 2008, Saavedra was promoted to permanent part-time custodian and
assigned to the Civic Center Complex, which includes both 150 and 250 Frank Ogawa


City’s 103 alleged undisputed material facts). We have considered only evidence cited in
the first part of the separate statement and the response and reply thereto.
       2
          The trial court sustained several objections to Saavedra’s evidence, and Saavedra
fails to challenge those rulings on appeal. The trial court overruled all of Saavedra’s
objections to the City’s evidence, and Saavedra fails to renew those objections on appeal.
In a footnote, the City renews one evidentiary objection that was overruled by the trial
court. Even assuming this objection was properly presented in such an indirect manner,
we need not rule on it, as explained post.
       3
         Although Saavedra confirmed at his deposition that he was “paid for all of the
reimbursements for use of [his] personal vehicle from the time [he was] at Edgewater,” it
was not clear in context whether he was referring to his employment at Edgewater in
2004 to 2007 or only to a later assignment at Edgewater in 2010. We resolve the
ambiguity in Saavedra’s favor. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th
at p. 843.)


                                               2
Plaza (150 Plaza and 250 Plaza). His supervisors were Facilities Complex Manager
Derin Minor and Custodial Supervisor Damien Thomas.
       1.     Working Conditions
       Minor assigned Saavedra to an eight-hour (full-time) position at 250 Plaza, but
Saavedra was required to do the work in seven hours and received only seven hours’ pay.
Thomas showed favoritism toward the African-American custodians, who were relatives
or friends of Minor and Thomas. Thomas ordered Saavedra to perform work that these
custodians refused to do or had left undone while they took unauthorized or lengthy
breaks. “You know, he’ll pull me from doing my job duties . . . to come and do someone
else’s [work], while the person stands right there and tells him no.” Thomas also singled
out Saavedra for criticism. For example, he yelled at Saavedra for arriving late to a
gathering when African-American custodians had not yet arrived, and he criticized
Saavedra in front of other custodians for taking time off to attend his wife’s medical
appointments even though those absences had been approved by Minor. When Saavedra
complained about the disparate treatment, Thomas got angry and said, “[J]ust do what I
tell you.” Saavedra believed that Thomas reported his complaints to Minor because
Minor spoke to Thomas every day, told Saavedra not to talk back to Thomas, and became
more firm or direct with Saavedra.
       In November 2008, Minor assigned Saavedra to 150 Plaza to replace African-
American custodian Arthur Couch and gave Couch Saavedra’s former position. Minor
made the transfer to protect Couch, who was suspected of sexual harassment and other
misconduct at 150 Plaza. Couch had a full-time eight-hour schedule, but Saavedra was
required to do the same work in seven hours and for seven hours’ pay. Saavedra
complained to Thomas about the transfer.
       2.     Suspension
       At 150 Plaza, Saavedra took over as day porter assigned to the eighth floor of the
Lionel J. Wilson Building. Couch had worked in the position for more than eight years
and had stored many personal items in the eighth-floor custodial closet, including
pornographic magazines. Saavedra told Thomas about the magazines and Thomas said to


                                             3
leave them there. Saavedra believed Minor was also aware of the magazines because he
often visited his friend Couch at the closet.
       Both day and evening custodians used the custodial closet. Because the evening
custodians frequently failed to restock the closet, Saavedra asked Thomas for permission
to stash extra supplies in a “DIT” (apparently the Department of Information
Technology) closet on the eighth floor and Thomas consented. On March 19 or 20, 2009,
Saavedra was tucking in his shirt by the DIT closet when someone started to enter the
room and quickly fled. Saavedra left a note that said: “Sorry for scaring you[.] I leave
my . . . supplies in here! You just caught me on a bad time when I was fixing my shirt &
pants!”
       In March 2009, Minor searched the Wilson building’s custodial closets and DIT
rooms for a missing television monitor. In the process of that search, he came across
Saavedra’s note in a DIT communications room and three pornographic magazines in the
custodial closet (two inside a first aid kit and one on a shelf). Thomas identified the
handwriting on the note as Saavedra’s.
       On March 23, 2009, Saavedra called Thomas to report that someone had taken
magazines from the custodial closet. On March 25, Thomas asked Saavedra to describe
the incident in more detail, and Saavedra wrote: “I noticed personal items were moved
. . . . [Three] personal magazines were stolen. Note that these magazines were not in
open view. . . . [N]ow I’m aware that this is a common area to not keep personal items.”
Although other custodians had access to the closet, there is no evidence that anyone other
than Saavedra was investigated regarding the magazines.
       Also on March 23, 2009, Thomas was asked to locate a missing air pump.
Thomas inspected the basement storage area and could not locate the pump. He spoke to
three custodians who helped move boxes in February and they all recalled seeing the air
pump and denied taking it. According to Saavedra, Thomas hung up the phone before




                                                4
Saavedra could tell him that he had placed the pump in an e-waste container.4 Saavedra
called Thomas back, but Thomas did not answer his phone. Saavedra retrieved the pump
from the e-waste container and returned it to the basement storage area and called
Thomas to say he had returned the pump. Minor later reviewed surveillance video
footage that showed Saavedra entering the building with a box under his arm between the
time Thomas first searched the basement and when the pump was found. Building access
records confirmed that Saavedra left and reentered the building at that time.
       Minor reported the results of his investigation to the City’s human resources
department. On May 27, 2009, Saavedra was called to a meeting with Minor and Trinette
Gist Skinner of human resources. According to Minor and Skinner, Saavedra admitted
that the three pornographic magazines were his and denied knowing how the air pump
got into the basement storage area. Saavedra avers that he told Minor and Skinner he was
unaware of the magazines in the first aid kit and that he did not steal the air pump.
Skinner recommended that Saavedra be disciplined. In July 2009, Saavedra was turned
down for a promotion to a full-time position and an African-American with less seniority
was selected.
       On March 15, 2010, the City sent Saavedra a “Notice of Intent to Terminate” for
accessing an unauthorized area (the DIT room), maintaining pornography on work
property, and stealing the air pump. Saavedra responded with a five-page written
statement. Regarding the air pump, he claimed he had put it in the e-waste container in
February 2009. An April 1, 2010 Skelly5 hearing was attended by Saavedra, his union
representative, and Skelly officer Steve Danziger. Danziger interviewed witnesses and


       4
         Back in February 2009, Thomas assigned Saavedra to help move boxes from a
storage site to the basement of 150 Plaza. A few days later, Thomas told Saavedra to
help sort through those boxes with another City employee, who indicated which boxes
should be saved and which discarded. Saavedra discarded boxes of Christmas ornaments,
bicycle parts and old files, as well as a box that contained an air pump with caution tape
on it. Because it was electrical equipment, Saavedra put the pump in an e-waste
container.
       5
           Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.


                                              5
wrote an April 28 report of his investigation. Regarding use of the DIT room, Saavedra
told Danziger that Thomas had given him permission to store supplies there, but Thomas
denied doing so. Danziger found that the City failed to establish that the DIT room was
an unauthorized area for Saavedra and that Saavedra’s story was credible. Regarding the
pornographic magazines, “[Saavedra] admitted that he told [Thomas and Minor] the
magazines were his but [said] he did not mean they were purchased by him and
personally belonged to him.” Danziger noted that two of the magazines were from 1994
and 2006. Saavedra told Danziger that Thomas knew about the magazines in 2008 and
that Couch had recently admitted to him that the magazines were in the closet when he
worked there. Thomas and Couch both denied such knowledge. Regarding the air pump,
Danziger wrote that “Saavedra’s story about placing the air-pump in the e-waste area
sounds plausible (and seems to be supported by the access wipe report and videotape),
but [Saavedra] was not truthful when asked about the missing pump and putting it back in
the basement. As far as I know, telling me about putting it in the e-waste area was the
first time anyone knew of this.”
       Danziger concluded, “The evidence clearly indicates that someone is being
untruthful and . . . my conclusion is that it was [Saavedra]. None of the statements he
attributed to [Thomas or Couch] were confirmed. In addition, he returned the air-pump
but was not forthcoming about how it got there. . . . [M]aintaining pornographic materials
in the work place is a serious offense and worthy of a lengthy suspension.” In light of
Saavedra’s long tenure, positive performance reviews, and clean disciplinary record,
Danziger recommended imposition of a 20-day suspension in lieu of termination.
       The deputy city attorney who reviewed the matter met with Saavedra and his
union representative and inspected relevant building locations with Saavedra. She made
a settlement offer to reduce the discipline to a five-day suspension on the condition he
successfully complete one year of probation. Saavedra rejected the offer. The City
issued a notice of suspension on July 30, 2010, based on all three alleged violations;
Saavedra served the 20-day suspension in August and September 2010.



                                             6
C.     March to December 2010: Edgewater
       On March 16, 2010, the day after Saavedra received the Notice of Intent to
Terminate, Minor reassigned Saavedra to work at Edgewater, apparently over Saavedra’s
objections. Reimbursements for Saavedra’s work use of his personal car during this
assignment were delayed for eight months.
D.     January 2011 to Present: Oakland Police Department
       In January 2011, Minor assigned Saavedra to an Oakland Police Department
(OPD) location, where he was supervised by Jackson, Everett Cleveland, and Harold
Bowles. Saavedra objected to the transfer. At OPD, he no longer received
reimbursement for use of his personal vehicle (although he also no longer had to use his
vehicle for work), which Saavedra considered lower pay. Saavedra took over a position
that had been held by an African-American full-time custodian, but Saavedra was
required to do the job on a part-time schedule. Minor directed Cleveland to escort
Saavedra through a four-hour background check that included fingerprinting, whereas
other custodians (including African-Americans) were not escorted through the process.
Saavedra complained to Cleveland about the disparate treatment. Cleveland repeatedly
checked on Saavedra and asked why he did not like working at OPD.
       Sometime in 2011, Saavedra was asked to sign a performance evaluation for the
May 2010-April 2011 period that included a statement that he had taken time off for
personal reasons, a reference to his approved 12-week leave (pursuant to the Family and
Medical Leave Act) in 2009. Although Cleveland was Saavedra’s immediate supervisor
at the time the evaluation was presented to Saavedra, the evaluation was initially signed
by Minor and later by Jackson. When Saavedra complained about the comment, Minor,
Bowles and Jackson refused to remove it, but the comment was eventually deleted.
       While Saavedra worked at OPD, Roslyn Ratliff, an African-American custodian
who was not Saavedra’s supervisor but who appeared to be close to his then supervisor
Bowles, surveilled and harassed him. On August 30, 2011, Ratliff prevented Saavedra
from taking his break, on October 21 and 31 she asked about his whereabouts, and on
November 21 she checked on him and took photographs of his work. When Ratliff


                                             7
checked the crew’s work at the end of the day and found unfinished work in Saavedra’s
area, she would not have a custodian complete the work per her usual custom but would
report the problem to Bowles. Saavedra received a disciplinary notice from Bowles that
accused him of failing to clean a restroom, with pictures attached. Saavedra pointed out
that the restroom in question was a women’s room that was not assigned to him, but
Bowles insisted it was. Bowles eventually agreed to investigate and later retracted the
write-up. Saavedra complained to Bowles about Ratliff’s harassment to no avail.
       Bowles treated African-American employees more favorably than Saavedra. He
repeatedly let an African-American custodian named Ricky take extra breaks to take care
of personal business. Ricky, who spoke frequently with Bowles by phone, asked other
custodians about Saavedra, giving him the impression that Bowles had told Ricky to
“keep an eye” on him. Minor also hired a White male external candidate for a full-time
position at OPD while Saavedra was working there.
       On January 19, 2012, Saavedra received a layoff notice. The notice was left for
him in the break room, readily visible to other employees. Saavedra should not have
been laid off because of his seniority status. On January 23, a retraction of the layoff
notice was left for Saavedra, again in the break room.
E.     Litigation
       In February 2011, Saavedra filed a complaint against the City, Minor, Thomas,
and Doe defendants. He asserted claims for race discrimination, racial and retaliatory
harassment, retaliation, and hostile work environment in violation of the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.; id., § 12940). He
also asserted claims for violation of Labor Code section 1102.5 et seq., wrongful
discipline in violation of public policy, and defamation. Defendants (collectively the
City) moved for summary judgment. After two continuances, Saavedra filed opposition
papers that failed to comply with the rules of court. The court issued an order to show
cause requiring Saavedra to show why he and his attorney should not be sanctioned for
the rule violations. After a hearing on both the order to show cause and the summary



                                             8
judgment motion, the court issued a written order granting summary judgment on the
merits. The court entered judgment for the City and Saavedra appeals.
                                      II.    DISCUSSION
A.     Procedural Violations by Saavedra
       The City argues that Saavedra’s procedural violations are sufficient grounds alone
to affirm the judgment pursuant to Code of Civil Procedure section 437c,
subdivision (b)(3). Based on our reading of the record, we conclude the trial court
declined to grant summary judgment on this basis. We therefore similarly decline the
City’s invitation to affirm the judgment on the basis of procedural default.
       1.       Background
       The City filed its motion on November 22, 2013. The City’s separate statement of
undisputed material facts was 155 pages long and consisted of two parts: the first 19
pages listed 103 alleged undisputed material facts, and the remaining 136 pages linked
those facts to issues that the City raised in its summary judgment motion. On
December 27, Saavedra requested a 120-day continuance pursuant to Code of Civil
Procedure section 437c, subdivision (h) (and continuance of the trial date pursuant to Cal.
Rules of Court, rule 3.1332(c)).6 The court granted a continuance for about 30 days, and
wrote, “No further continuance will be allowed.” On March 3, 2014, Saavedra asked for
a further continuance and for leave to file amended papers. The court granted the
request, continuing the summary judgment hearing to March 28 and ordering amended
opposition papers to be filed by March 18.
       Saavedra filed amended papers by the deadline. His opposition brief was 53 pages
long. The brief’s 11-page statement of facts included only two citations to the record,
and many facts cited in the brief’s discussion section lacked citations to the record.
Saavedra’s response to the City’s statement of undisputed material facts was complete
with respect to the statement’s first 19 pages, but incomplete and inconsistent with




       6
           All rule references are to the California Rules of Court.

                                                9
respect to the remaining 136 pages. The City urged the court to grant the motion based
on Saavedra’s noncompliant brief and separate statement response.
       On March 26, 2014, the court issued an order to show cause: “Saavedra filed a
53-page [brief] . . . , when the page limit is no more than 20 pages. (See . . . [r]ule
3.1113(d).) [¶] [He] did not apply to the court for permission ex parte (at least 24 hours
before the memorandum was due), to file a longer memorandum. (See . . .
[r]ule 3.1113(e).) [¶] [Saavedra also] filed a separate statement in opposition . . . , which
does not comply with [rule] 3.1350(f) . . . . [¶] [Further, t]his court has, on two occasions,
continued the motion . . . and in its last order specifically, [Saavedra] was directed to file
a new, error free, set of opposition papers. (See Orders dated 12/27/13 and 3/3/14.)
[¶] . . . [¶] It appears that nothing short of issuance of monetary sanctions will resonate
with [Saavedra and his] counsel.” The court continued the summary judgment hearing to
April 9, scheduled a hearing on the order to show cause for the same date.
       At the April 9, 2014 hearing, the court heard oral argument on the sanctions and
the summary judgment motion. The court’s written order granting summary judgment
concluded, “Notwithstanding the violations, the court did consider the defective papers in
opposition to this motion in ruling herein and deems them additional reasons to grant this
motion.”
       2.     Analysis
       Code of Civil Procedure section 437c, subdivision (b)(3) requires a party opposing
summary judgment to file a response to the moving party’s separate statement of
undisputed material facts, and provides, “Failure to comply with this requirement of a
separate statement may constitute a sufficient ground, in the court’s discretion, for
granting the motion.”
       We do not read the trial court’s statements as indicating that it granted summary
judgment on the basis of Saavedra’s procedural defaults. In its order to show cause, the
court wrote that it appeared that monetary sanctions, not a terminating sanction, was
necessary to compel compliance with procedural rules. At the April 9, 2014 hearing on
the order to show cause and the summary judgment motion, the court explained, “I have


                                              10
the discretion to either deem the whole thing inappropriate and not consider [it], which I
did not do. I can stop reading after I get to the page limit, which I did not do.” (Italics
added.) When addressing the merits of the summary judgment motion in its written
order, the court repeatedly indicated that it had considered “all evidence cited in support
of and in opposition thereto” (italics added). In the summary judgment order, the court
wrote, “the court did consider the defective papers in opposition to this motion in ruling
herein and deems them additional reasons to grant this motion.” While not entirely clear,
the court appeared to say that, even considering Saavedra’s defective opposition, he did
not meet his burden to demonstrate triable issues of fact. We think it is reasonably clear,
however, that the court declined to impose the ultimate sanction of termination on the
sole basis of Saavedra’s procedural defects in the opposition papers.7
       We decline to affirm on the ground that Saavedra’s opposition papers were fatally
defective, where it does not appear that the trial court did so.8

       7
          We do not suggest that a court may not sanction noncompliant pleadings as
appropriate to the circumstances. “ ‘Separate statements are required not to satisfy a
sadistic urge to torment lawyers, but rather to afford due process to opposing parties and
to permit trial courts to expeditiously review complex motions for . . . summary judgment
to determine quickly and efficiently whether material facts are disputed,’ ” as well as
which facts are contended to be material to each issue raised in the motion. (Parkview
Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1210.)
However, “granting a motion for summary judgment based on a procedural error by the
opposing party is equivalent to a sanction terminating the action in favor of the other
party. . . . [¶] Sanctions which have the effect of granting judgment to the other party on
purely procedural grounds are disfavored. [Citations.] Terminating sanctions have been
held to be an abuse of discretion unless the party’s violation of the rule was willful
[citations], or, if not willful, at least preceded by a history of abuse of pretrial procedures,
or a showing less severe sanctions would not produce compliance with the procedural
rule.” (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97–98, fn.
omitted.)
       8
         We note that Saavedra, who is represented on appeal by his trial counsel,
continues to violate court rules. Most notably, few factual representations in his opening
brief are supported with citations to the record. (Rule 8.204(a)(1)(C); see Guthrey v.
State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court may treat as
waived any factual contentions not supported by a citation to the record].) On some
issues, he also fails to support arguments with legal authority applied to the particular

                                              11
B.     Failure to Exhaust Administrative and Judicial Remedies
       As to all of Saavedra’s causes of action, the trial court granted summary judgment
in part because Saavedra “failed to exhaust his administrative and judicial remedies.” We
agree with Saavedra that the court erred in this respect. The trial court apparently viewed
the April 2010 Skelly hearing9 followed by the union grievance procedure as an
administrative remedy that Saavedra began and failed to complete.10 FEHA claims are
not barred either by a litigant’s failure to exhaust union grievance remedies or by adverse
results of such a grievance procedure.
       1.     Background
       On March 15, 2010, the City sent Saavedra the Notice of Intent to Terminate. The
notice advised Saavedra of his right to respond to the charges in writing or at a Skelly
hearing or both. A Skelly hearing took place on April 1. On April 28, Danziger
recommended imposition of a 20-day suspension in lieu of termination. After further
investigation, the City issued a notice of suspension on July 30, and Saavedra served the
suspension in August and September.

facts of his case with any specificity. (See id. at pp. 1115–1116 [appellate court may
deny claim on appeal that is unsupported by legal argument applying legal principles to
the particular facts of the case on appeal].) Rule 8.276(a)(4) permits us to impose
sanctions on a party or an attorney for committing any “unreasonable violation” of the
rules of court. We issued a separate order requiring Saavedra and his counsel to show
cause why they should not be sanctioned by this court for violating the aforementioned
appellate court rules. We address the imposition of sanctions by separate order filed
concurrently herewith.
       9
         Due process requires that a permanent civil service employee be accorded certain
procedural rights before disciplinary removal, including notice of the proposed action, the
reasons therefor, a copy of the charges and materials upon which the action is based, and
the right to respond, either orally or in writing, to the authority initially imposing
discipline—a full evidentiary hearing is not required. (Skelly, supra, 15 Cal.3d at
pp. 213–215.)
       10
          The trial court wrote, “The evidence shows that plaintiff Saavedra chose the
[C]ity’s internal grievance procedures except arbitration in which he could have
presented evidence, taken testimony, cross-examined his accusers, etc. . . . Only
following a negative finding by the Skelly Officer, Steve Danziger, did [Saavedra] change
his mind about continuing the process and withdrew his request for arbitration.”


                                             12
       On September 3, 2010, Saavedra’s union filed a grievance contesting the
suspension. A “Step 3” grievance meeting took place on November 3, 2010. The City
then denied the grievance, finding “[t]here is substantial evidence that the suspension was
for just cause.” The grievance did not proceed to arbitration. Meanwhile, on July 11,
2010, Saavedra had filed discrimination complaints against the City, Minor, and Thomas
with the Department of Fair Employment and Housing (DFEH), and DFEH closed all
three cases the same day because Saavedra had requested an immediate right-to-sue
notice. As noted ante, Saavedra filed this action in February 2011.
       2.      Analysis
       We review the trial court’s legal rulings de novo and its factual findings for
substantial evidence. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.)
       “[The] exhaustion doctrine comes in two forms: administrative and judicial.
Administrative exhaustion refers to the requirement that a party initiate, and complete, a
particular administrative proceeding before being permitted to proceed in court. The
FEHA’s administrative complaint procedure provides a clear example of one such
administrative exhaustion requirement. . . . [¶] Judicial exhaustion is slightly different. It
may arise when a party initiates and takes to decision an administrative process—whether
or not the party was required, as a matter of administrative exhaustion, to even begin the
administrative process in the first place. Once a decision has been issued, provided that
decision is of a sufficiently judicial character to support collateral estoppel, respect for
the administrative decisionmaking process requires that the prospective plaintiff continue
that process to completion, including exhausting any available judicial avenues for
reversal of adverse findings. [Citation.] Failure to do so will result in any quasi-judicial
administrative findings achieving binding, preclusive effect and may bar further relief on
the same claims.” (McDonald v. Antelope Valley Community College Dist. (2008)
45 Cal.4th 88, 113.)
       “ ‘The underpinnings of [the] rule of exhaustion of judicial remedies are buried in
the doctrine of res judicata or that portion of it known as collateral estoppel and more
recently as issue preclusion. . . . [¶] . . . [¶] Res judicata . . . deals with the preclusive


                                                13
effects of judgments in civil proceedings. . . . In its primary aspect the doctrine operates
as a bar to the maintenance of a second suit between the same parties on the same cause
of action.’ [Citation.] Thus, if a party either participated in a quasi-judicial hearing, or
was afforded the opportunity to do so as part of a mandatory administrative process, that
process is considered her first ‘suit,’ and she is bound by its result. The exhaustion of
judicial remedies rule provides she cannot pursue another remedy until she overturns the
adverse result of the first suit.” (Ahmadi-Kashani v. Regents of University of California
(2008) 159 Cal.App.4th 449, 461 (Ahmadi-Kashani).)
       The City cites Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074
(Schifando) and Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th
1135 (Page) in support of its position that Saavedra’s FEHA claims were barred by his
failure to exhaust internal administrative remedies. Schifando and Page, in turn, discuss
the Supreme Court’s earlier precedent regarding this issue (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61 (Johnson)).
       In Johnson, the plaintiff filed a grievance with the City of Loma Linda after
termination from his position as an assistant city manager. His grievance was rejected by
the city personnel board, and the city council upheld that decision. The plaintiff then
filed a discrimination claim with the DFEH and a discrimination suit in superior court.
The trial court granted summary judgment for the City of Loma Linda in part on the basis
that the plaintiff had failed to exhaust his judicial remedies. (Johnson, supra, 24 Cal.4th
at pp. 66–67.) The Supreme Court affirmed, holding that when “a public employee
pursues administrative civil service remedies, receives an adverse finding, and fails to
have the finding set aside through judicial review procedures, the adverse finding is
binding on discrimination claims under the FEHA.” (Id. at p. 76.) Johnson made clear
that the rule applies only to quasi-judicial administrative remedies. (Id. at pp. 65, 70.)
Johnson also discussed the distinction between the exhaustion of judicial and
administrative remedies. “Exhaustion of administrative remedies is ‘a jurisdictional
prerequisite to resort to the courts.’ [Citation.] Exhaustion of judicial remedies, on the
other hand, is necessary to avoid giving binding ‘effect to the administrative agency’s


                                              14
decision, because that decision has achieved finality due to the aggrieved party’s failure
to pursue the exclusive judicial remedy for reviewing administrative action.’ ” (Johnson,
at p. 70.)
       In Schifando, the plaintiff filed suit against the City of Los Angeles alleging
employment discrimination based on physical disability under the FEHA. The trial court
sustained a demurrer to the complaint on the ground that the plaintiff had failed to file a
timely administrative complaint as provided under the city charter. (Schifando, supra,
31 Cal.4th at p. 1080.) The Supreme Court reversed, holding that the primary intent of
FEHA is to provide both public and private employees the opportunity to vindicate civil
rights, and that public employee plaintiffs have a choice between their civil service
remedies and those provided by the FEHA. (Id. at pp. 1087–1088.) “The benefits of
judicial economy, agency expertise, and potential for swift resolution of grievances are
better served by a rule that allows aggrieved public employees to seek redress in the
forum that is most appropriate to their situation.” (Id. at p. 1089.) The court explained
that its holding was not in conflict with Johnson, ensuring “employees who choose to
utilize internal procedures are not given a second ‘bite of the procedural apple.’ ” (Id. at
pp. 1090–1091.)
       The Page court applied Johnson and Schifando to hold that an employee’s FEHA
action was barred because she elected to present her claims to a civil service commission
that held a quasi-judicial hearing, she received adverse findings, and she failed to
overturn those findings on judicial review of the administrative decision. (Page, supra,
123 Cal.App.4th at pp. 1142–1143.) As Page explains, if the public employee had an
evidentiary hearing during the civil service proceedings, the employee may not opt out of
those proceedings before a final decision is reached in order to file an FEHA claim in
court. (Ibid.)
       Johnson, Schifando, and Page have no application here. First, Saavedra did not
elect a civil service remedy for his suspension. The Skelly hearing Saavedra received was
a predisciplinary hearing mandated by procedural due process (Skelly, supra, 15 Cal.3d at



                                             15
p. 215).11 Although such a hearing involves factual investigation and resolution of
conflicting evidence, it is questionable whether the proceedings were sufficiently “quasi-
judicial” to require pursuit of writ relief.12 The union grievance was not a civil service
remedy (and in any event did not culminate in a quasi-judicial hearing, as no arbitration
was ever held). Second, and more importantly, while Saavedra challenged the factual
bases asserted for disciplinary action, he presented no FEHA claims at either the Skelly
hearing or in his union grievance, and it is not at all clear that he could have done so, at
least in the grievance process. The memorandum of understanding (MOU) between the
City and Saavedra’s union defines a “grievance” as “any dispute that involves the

       11
           The City represents on appeal that Saavedra “challenged the [20]-day
suspension through the procedures set forth by the Civil Service Board Personnel
Manual, which provides that the employee must be given the reasons for the suspension,
and the employee has the right of hearing and investigation.” In support of this
statement, the City first cites to section 10.02 of its April 2008 personnel manual, which
is entitled “Procedure in Disciplinary Actions” and discusses the steps that may be taken
to challenge a suspension after it is imposed. The City also cites to a 1989 memo entitled
“Employee Discipline – Due Process Requirements” that discusses how to comply with
Skelly, supra, 15 Cal.3d 194, before imposing discipline. Neither logic nor any evidence
in the record supports the City’s suggestion that the hearing referenced in section 10.02
of the personnel manual is the Skelly hearing referenced in the 1989 memo. Moreover,
there is no evidence that Saavedra took any steps to pursue his civil service remedies with
respect to his suspension.
       12
          Consideration of whether to give administrative findings preclusive effect
requires examination of factors that would indicate the administrative proceeding was
judicial in character. These factors “include a hearing before an impartial decision
maker; testimony given under oath or affirmation; a party’s ability to subpoena, call,
examine, and cross-examine witnesses, to introduce documentary evidence, and to make
oral and written argument; the taking of a record of the proceeding; and a written
statement of reasons for the decision.” (Pacific Lumber Co. v. State Water Resources
Control Bd. (2006) 37 Cal.4th 921, 944.) Even if sufficiently “judicial” in nature, the
issues presented to Skelly officer Danziger significantly differed. “[C]ase law recognizes
two rights or interests at stake when a civil service employee challenges discipline or
termination on discriminatory or retaliatory grounds. The primary right protected by the
state civil service system is the right to continued employment, while the primary right
protected by FEHA is the right to be free from invidious discrimination and from
retaliation for opposing discrimination.” (George v. California Unemployment Ins.
Appeals Bd. (2009) 179 Cal.App.4th 1475, 1483.)


                                              16
interpretation or application of this agreement.” While the MOU generally prohibits
“discrimination” by either the City or the union, the City, in its denial of Saavedra’s
Step 3 grievance, expressly asserted that “State and Federal statutes . . . are not
gr[ie]vable.” Saavedra cites his suspension in his civil complaint as one act of retaliation
by the City, but his FEHA claims encompass a litany of purported discriminatory and
retaliatory actions by his supervisors and by the City, none of which were addressed in
any administrative proceeding.
       Union grievance procedures are distinguishable from civil service administrative
proceedings in several important respects, and do not eliminate the right to a jury
determination of important state statutory rights afforded to individual workers under
FEHA unless two conditions are met. “First, we believe that if the FEHA claims of a
union member are to be finally resolved by arbitration (with the concomitant loss of a
jury of one’s peers), the agreement to do so in a [collective bargaining agreement] must
be ‘clear and unmistakable.’ [Citations.] . . . [¶] Second, the procedures of the arbitration
must allow for the full litigation and fair adjudication of the FEHA claim.” (Camargo v.
California Portland Cement Co. (2001) 86 Cal.App.4th 995, 1018, fn. omitted
(Camargo); see Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 80
[waiver of an employee’s right to have employment discrimination claims heard in a
judicial forum must be “ ‘clear and unmistakable’ ”; intent to waive statutorily protected
right to a judicial forum must be “ ‘ “explicitly stated” ’ ”]; Ortega v. Contra Costa
Community College Dist. (2007) 156 Cal.App.4th 1073, 1085–1086 (Ortega); Marcario
v. County of Orange (2007) 155 Cal.App.4th 397, 399, 406 [distinguishing binding effect
of findings made in union grievance procedures from those made in quasi-judicial
administrative proceedings].)
       The union MOU here contains a general prohibition against discrimination, but
says nothing directly about grievance of such claims. It certainly does not explicitly
provide for arbitration of FEHA claims, nor does it reflect any clear and unmistakable
intent to waive an employee’s right to resort to a judicial forum. “ ‘ “In the collective
bargaining context, the parties ‘must be particularly clear’ about their intent to arbitrate


                                              17
statutory discrimination claims.” . . . A simple agreement not to engage in acts violative
of a particular statute will not suffice; the agreement must establish the intent of the
parties to incorporate “in their entirety” the discrimination statutes.’ ” (Mendez v. Mid-
Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 544.) Moreover, “as in
Camargo, the record in this case ‘sheds little light on the fairness of the [factfinding
procedure], on the extent of discovery that was allowed the parties, or on whether the
[factfinders] had any special competence in the adjudication of FEHA claims.’ ”
(Ortega, supra, 156 Cal.App.4th at p. 1085.) Thus, the second requirement of Camargo
has likewise not been met.
       Had Saavedra pursued arbitration under the MOU, any decision would
consequently not have had collateral estoppel effect. Therefore, an employee’s use of the
grievance procedure prior to arbitration stage could have no collateral estoppel effect.
(See Ahmadi-Kashani, supra, 159 Cal.App.4th at p. 452 [“[w]e perceive no basis for
according binding effect to a partially completed grievance process, when even the
completed process would not have been entitled to such effect”].)13 Saavedra’s
utilization of the grievance process under the MOU does not bar his state court FEHA
actions against the City.14 Saavedra alleged that he timely filed a complaint with the
DFEH, and this is sufficient to plead exhaustion. (Ortega, supra, 156 Cal.App.4th at
p. 1086.)
       The City does not raise (and did not raise in the trial court) any independent basis
for dismissal of Saavedra’s non-FEHA claims on the grounds of failure to exhaust
administrative or judicial remedies. Any such argument is therefore forfeited. (See Ward
       13
           Ahmadi-Kashani also held that collateral estoppel did not apply because the
initial union grievance steps the employee completed were not quasi-judicial hearings
that justified application of the rule established by Johnson, supra, 24 Cal.4th 61.
(Ahmadi-Kashani, supra, 159 Cal.App.4th at pp. 457–459.) Because the plaintiff was
pursuing a union grievance procedure rather than a civil service remedy (or other internal
administrative remedy), this analysis was unnecessary.
       14
         At oral argument, the City appeared to concede that arbitration under the MOU
grievance procedures was not required, but argued that Saavedra was nevertheless
required to challenge the Skelly findings through civil service appeal.


                                              18
v. Taggart (1959) 51 Cal.2d 736, 742; Badie v. Bank of America (1998) 67 Cal.App.4th
779, 784–785.)
       In sum, we reverse the trial court’s rulings based on failure to exhaust
administrative or judicial remedies.
C.     Failure to Raise Triable Issues of Fact
       Summary judgment is appropriate “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).) “[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.) “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.” (Ibid., fn. omitted.) When the plaintiff bears the burden of
proving facts by a preponderance of the evidence and the defendant moves for summary
judgment, the defendant “must present evidence that would require a reasonable trier of
fact not to find any underlying material fact more likely than not.” (Id. at p. 851.) In
ruling on the motion, the court must draw all reasonable inferences from the evidence in
the light most favorable to the opposing party. (Id. at p. 843.) We review an order
granting summary judgment de novo. (Id. at p. 860.)
       1.     Saavedra’s Discrimination, Harassment, Retaliation, and Hostile Work
              Environment Claims
       The trial court granted summary judgment as to the claims for discrimination and
retaliation in part because “the undisputed evidence shows that incidents that [Saavedra]
complains of do not constitute adverse employment actions to support a prima facie case”
of discrimination or retaliation. The trial court also ruled that the “undisputed evidence
shows that there was no severe or pervasive harassment [or hostile work environment].”
Saavedra argues these rulings were error. We agree the court erred.




                                             19
              a.     Adverse Action, Harassment, and Hostile Work Environment
       The anti-discrimination and anti-retaliation provisions of FEHA prohibit the same
forms of adverse action, namely conduct that materially affects the terms and conditions
of employment. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1050–1051 &
fn. 9 (Yanowitz).) Such adverse action “is not limited to adverse employment actions that
impose an economic detriment or inflict a tangible psychological injury upon an
employee” (id. at p. 1052), or to “so-called ultimate employment actions such as
termination or demotion” (id. at p. 1054). Adverse action includes “the entire spectrum
of employment actions that are reasonably likely to adversely and materially affect an
employee’s job performance or opportunity for advancement in his or her career” except
for “[m]inor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no more than
anger or upset an employee.” (Ibid.) The statutory language “must be interpreted
liberally and with a reasonable appreciation of the realities of the workplace in order to
afford employees the appropriate and generous protection against employment
discrimination [and retaliation] that the FEHA was intended to provide.” (Ibid., fn.
omitted.)
       When considering whether an employee has been subjected to actionable
discrimination or retaliation, courts should consider the employer’s entire course of
conduct rather than each separate alleged adverse act. “[T]here is no requirement that an
employer’s retaliatory [or discriminatory] acts constitute one swift blow, rather than a
series of subtle, yet damaging, injuries.” (Yanowitz, supra, 36 Cal.4th at p. 1055; id. at
p. 1056.) Further, under “the continuing violation doctrine,” acts that fall outside the
FEHA limitations period (generally, one year) may be considered if “ ‘the employer’s . . .
actions [were] (1) sufficiently similar in kind—recognizing, as this case illustrates, that
similar kinds of unlawful employer conduct, such as acts of harassment or failures to
reasonably accommodate disability, may take a number of different forms [citation];
(2) have occurred with reasonable frequency; (3) and have not acquired a degree of



                                             20
permanence.’ ” (Id. at p. 1059, fn. omitted; see § 12960, subd. (d) [FEHA limitations
period].)
       The evidence would support an inference that Thomas subjected Saavedra to a
continuing course of adverse treatment following Saavedra’s transfer to the Civic Center
Complex. The conduct included requiring Saavedra to perform African-American
custodians’ work for no extra pay while they took unauthorized or lengthy breaks,
requiring him to perform disfavored tasks when African-American custodians refused to
do the work, and subjecting him to a harassing environment where he was singled out for
criticism. Requiring Saavedra to perform extra work for no additional pay resulted in
pecuniary harm. Blatant disparate treatment in the assignment of workload and
disfavored work duties and singling out Saavedra for criticism is nontrivial conduct that
could adversely affect his job performance.
       The evidence further would support an inference that Minor, Thomas and other
custodial staff subjected Saavedra to a continuing course of actionable adverse treatment
from the time Saavedra complained about Thomas’s discriminatory behavior. The
conduct included Minor’s and Thomas’s acts and statements that contributed to
imposition of the 20-day suspension, transfers to 150 Plaza and OPD over Saavedra’s
objections, mistreatment at OPD, and denials of promotions. The suspension and denials
of promotions led directly to pecuniary harm. The transfer to 150 Plaza was disparate
treatment (the transfer was made to protect Couch from discipline) that contributed to a
nontrivial atmosphere of discrimination in Saavedra’s workplace. The transfer to and
mistreatment at OPD could be found to rise to the level of harassment. In Yanowitz, the
Supreme Court held that an employer’s “heightened response to [a complainant’s]
allegedly poor performance” was actionable retaliatory harassment, even in the absence
of adverse official actions. (Yanowitz, supra, 36 Cal.4th at p. 1062.) A supervisor with a
motive to retaliate subjected Yanowitz to disciplinary actions and threats of termination
on the basis of conduct that had previously been noted in her performance reviews when
she nevertheless received favorable performance ratings and was named sales manager of
the year. The supervisor further berated Yanowitz in the presence of her staff and


                                              21
actively solicited negative information about her performance. (Id. at p. 1061–1062.)
Here, Saavedra has produced evidence that Minor singled him out to be escorted for the
fingerprinting process when he was first transferred to OPD, and that Bowles solicited
negative information about Saavedra from Ratliff and “Ricky” and actively tried to
discipline or layoff Saavedra on unjustified grounds while he was at OPD. This evidence
raises a triable issue about whether Saavedra was subjected to unlawful harassment.
         As to alleged adverse actions that occurred before Saavedra’s transfer to the Civic
Center Complex in 2008 (denial of reimbursements for work use of his personal car and
denial of a promotion), Saavedra has not produced evidence supporting an inference that
the actions were part of a continuing course of conduct that continued into the limitations
period. For example, he does not attribute the actions to Minor or Thomas. However,
summary adjudication “shall be granted only if it completely disposes of a cause of
action.” (Code Civ. Proc., § 437c, subd. (f)(1).) We hold the trial court’s order is not
supported by its ruling that Saavedra failed to raise triable issues of fact regarding
adverse action, harassment or a hostile working environment.
                b.     Discriminatory or Retaliatory Motive
         The trial court ruled that the City “successfully offered evidence of a non-
discriminatory reason for [any adverse] actions, and [Saavedra] failed to show that such
reasons were really pretext.” The trial court also ruled that the “undisputed evidence . . .
shows that there is no causal link between any protected activity and any adverse
employment action.”15 Saavedra argues these rulings were error. We agree the trial court
erred.
         To establish a prima facie case of discrimination under FEHA, “[g]enerally, the
plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was


         15
         The trial court ruled that Saavedra’s retaliation “claim against the individual
defendants Derin Minor and Dameion Thomas fails because retaliation claims cannot be
maintained against individuals.” On appeal, Saavedra does not challenge this ruling,
which is supported by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1173.


                                              22
qualified for the position he sought or was performing competently in the position he
held, (3) he suffered an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests discriminatory
motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) The prima facie
case gives rise to a rebuttable presumption of discrimination. The burden then shifts to
the employer to produce admissible evidence that its action was taken for a legitimate,
nondiscriminatory reason. If the employer makes this showing, the presumption
disappears and the plaintiff must show that the employer’s reasons for the action were a
pretext for discrimination or offer other evidence of discriminatory motive. (Id. at
pp. 355–356.)
       “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Yanowitz, supra, 36 Cal.4th at p. 1042.)
“ ‘ “The causal link may be established by an inference derived from circumstantial
evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected
activities and the proximity in time between the protected action and allegedly retaliatory
employment decision.’ ” ’ ” (Morgan v. Regents of University of California (2000)
88 Cal.App.4th 52, 69.) “Once an employee establishes a prima facie case, the employer
is required to offer a legitimate, nonretaliatory reason for the adverse employment action.
[Citation.] If the employer produces a legitimate reason for the adverse employment
action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden
shifts back to the employee to prove intentional retaliation.” (Yanowitz, at p. 1042.)
       With respect to the adverse treatment Saavedra suffered during his assignment at
Civic Center Complex (requiring Saavedra to perform African-American custodians’
work for no extra pay while they took unauthorized or lengthy breaks or refused to do the
work, and subjecting him to a harassing environment where he was singled out for
criticism), Saavedra established a prima facie case of discrimination because he describes



                                             23
disparate treatment on the basis of race.16 The City disputes the allegations, but does not
provide any race-neutral reasons for any of the disparate treatment described in this
paragraph. Therefore, triable issues of fact remain regarding Saavedra’s claims of
discrimination following his initial transfer to the Civic Center Complex.
       With respect to the suspension, Saavedra has raised a prima facie case of
retaliation at least with respect to two of the three grounds for the discipline. Saavedra
produced evidence that in 2008 he complained to Minor and Thomas about
discriminatory treatment by Thomas. In response to the complaints, Thomas became
angry with Saavedra, Minor told Saavedra not to talk back to Thomas, and Minor became
less friendly toward Saavedra. Relatively soon thereafter17 Saavedra was reassigned to
150 Plaza over his objection. Soon thereafter, Thomas purportedly told Saavedra to leave
preexisting pornographic magazines in the eighth-floor custodial closet and within the
next few months he gave Saavedra permission to use the DIT closet. After Saavedra
came under suspicion of misconduct for possessing pornography and using the DIT room
without authorization, Thomas denied having given him permission to do those things.
In March 2009, Minor referred Saavedra for discipline for the misconduct based in part
on Thomas’s denials. The temporal nexus between Thomas’s negative reaction to
Saavedra’s complaints and Thomas’s alleged lies is sufficient to support a claim for


       16
          Saavedra’s claim that he was required to perform eight hours of work in seven
hours and for seven hours’ pay appears to be related to, but additional to, his claims that
he was denied promotions to a full-time position. It appears that permanent part-time
custodians have a seven-hour-a-day schedule and permanent full-time custodians have an
eight-hour-a-day schedule, and Saavedra claims not only that he was denied a promotion
on the basis of race or retaliation, but also that he was assigned to positions that had been
staffed by full-time custodians and was expected to perform the same amount of work for
less pay. In the case of his assignment to Couch’s former eight-hour position at
150 Plaza, Saavedra claims the lower pay was racially discriminatory. Drawing all
reasonable inferences in Saavedra’s favor, we infer that he makes the same claim with
respect to his initial assignment at the Civic Center Complex for a seven-hour schedule in
a formerly eight-hour position.
       17
        Saavedra was first transferred to the Civic Center Complex in May 2008, he
complained sometime thereafter, and he was reassigned to 150 Plaza in November 2008.


                                             24
retaliation. Alternatively, based on Thomas’s other discriminatory behavior toward
Saavedra in the assignment of work duties, a reasonable juror could infer that Thomas
acted with discriminatory intent in making false denials. With respect to Minor, a
reasonable juror could infer that he acted with a discriminatory or retaliatory motive in
referring the matter for discipline, as Saavedra submitted evidence Minor likely knew the
magazines had been in the closet before Saavedra’s transfer and Minor failed to
investigate anyone other than Saavedra who had access to the closet.
       Regarding Saavedra’s transfer back to Edgewater in 2010 and delay in
reimbursement for work use of his personal car during that assignment, Saavedra may
have raised a prima facie case of discrimination or retaliation by Minor in light of
Minor’s prior treatment of Saavedra. However, Saavedra has not identified adverse
action resulting from the transfer other than the delay in reimbursement, and the City
produced evidence that the delay was due to slow processing of paperwork in the fiscal
office rather than to any act by Minor, who promptly submitted Saavedra’s paperwork.
Saavedra’s bare assertion that “Minor delayed payment” of the reimbursement is
insufficient to raise a triable issue of fact on this issue.18
       Regarding Saavedra’s transfer to and mistreatment at OPD, Saavedra has raised a
prima facie case of retaliation. In addition to Saavedra’s initial complaints about
Thomas’s alleged discrimination, Saavedra had by this time complained about his
transfers to 150 Plaza, Edgewater, OPD, as well as the 2009 investigation and
2010 suspension. During his assignment at OPD, Saavedra additionally complained
about his mistreatment there and to the reference to his approved 2009 family leave in a
2011 performance review. The temporal nexus between these complaints and the
mistreatment support an inference of retaliatory intent. Moreover, because most of the
mistreatment (including heightened scrutiny, attempted discipline and layoff, and an
unfavorable comment in an initial draft of a performance review) occurred after Saavedra


       18
         Saavedra cited to pages 236 to 237 of Minor’s deposition in support of this
claim, but those pages of the deposition are not in the record.


                                                25
had served his suspension, a reasonable juror could infer that the course of conduct was a
retaliatory attempt to get rid of Saavedra after a failed attempt to have his employment
terminated. Alternatively, a reasonable juror could conclude the mistreatment was racial
discrimination because Saavedra testified he was singled out by race to be escorted to the
background check, and because he was placed in a full-time position formerly held by an
African-American and required to do the work on a part-time schedule. A reasonable
juror could also attribute the mistreatment to Minor based on evidence that Minor
previously retaliated or discriminated against Saavedra, Minor was directly responsible
for some of the mistreatment at OPD (background check escort and performance
evaluation comment), and the remainder of the treatment was carried out by Minor’s
subordinates who had no other apparent motive to mistreat Saavedra. The City does not
provide neutral reasons of any of the alleged mistreatment at OPD. Therefore, triable
issues of fact remain about whether his treatment at OPD was retaliatory or
discriminatory.
       With respect to promotion denials, the City produced evidence that Saavedra
interviewed for a full-time position twice between 2009 and 2013 and Minor hired two
Hispanics and one African-American for those positions. This evidence suggests that
Saavedra failed to make a prima facie case of discrimination on this issue. Saavedra,
however, produced evidence that he was passed over for a promotion in July 2009 when
the job went to an African-American with less seniority, and on another occasion when
the job went to a White external candidate. Disputes in the evidence must be resolved in
Saavedra’s favor on summary judgment. Saavedra’s evidence is sufficient to establish a
prima facie case and the City has not produced evidence of nondiscriminatory reasons for
the promotion decisions Saavedra describes. Therefore, triable issues of fact exist as to
these claims.
       In sum, the trial court erred in granting summary adjudication of Saavedra’s
claims for discrimination, retaliation, harassment and hostile work environment, except
for the retaliation claim against the individual defendants. Although we agree that
Saavedra failed to raise a triable issue about whether the delay in reimbursements for


                                            26
work use of his personal vehicle in 2010 was discriminatory or retaliatory, summary
adjudication “shall be granted only if it completely disposes of a cause of action.” (Code
Civ. Proc., § 437c, subd. (f)(1).) Therefore, we reverse summary adjudication of the
aforementioned claims.
       2.     Saavedra’s Tort and Labor Code Claims
       The trial court ruled that the non-FEHA claims for wrongful discipline,
defamation19 and violation of Labor Code section 1102.5 were time-barred pursuant to
the Government Claims Act (Gov. Code, § 810 et seq.; id., § 945.6.) Saavedra argues the
court erred in holding these claims were time-barred. We agree with the trial court.
       All claims for money or damages against a local public entity, with exceptions not
relevant here, must be presented to the entity within six months of accrual of the cause of
action. (Gov. Code, §§ 905, 910, 911.2) If the entity rejects the claim with a prescribed
form of statutory notice (Id., § 913), the claimant may sue in court no later than six
months after the date such notice is personally delivered or deposited in the mail (again,
with exceptions not relevant here). (Id., §§ 945.4, 945.6.) The six-month limitation
period expires six calendar months or 182 days after the date the notice was sent,
whichever is later. (Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601, 603.)
       Saavedra sent the City a “Notice of Tort Claim for Damages” in July 2010. The
City sent the prescribed statutory notice denying the claim on August 3, 2010. Six
calendar months after that date was February 3, 2011. One hundred eighty-two days after


       19
          Although the defamation claim was brought against the individual defendants
only, the government claim requirement still applied. Government Code section 950.2
provides, with exceptions not relevant here, that “a cause of action against a public
employee . . . for injury resulting from an act or omission in the scope of his employment
as a public employee is barred if an action against the employing public entity for such
injury is barred . . . under Chapter 2 (commencing with Section 945) of Part 4 of this
division.” Because a defamation claim by Saavedra against the City is barred by
Government Code section 945.6, his claim against the individual defendants is also
barred. (See Neal v. Gatlin (1973) 35 Cal.App.3d 871, 876–878 [Gov. Code, § 950.2
applies to alleged defamatory evaluations by members of public college tenure
committee].)


                                             27
August 3, 2010, was February 1, 2011. Saavedra filed his complaint on February 4,
2011. The complaint was untimely with respect to the tort and Labor Code claims.
       Saavedra makes no argument with respect to the Government Claims Act, but
instead insists that all three claims were timely with respect to their underlying
limitations periods. However, “ ‘[s]uits against a public entity are governed by the
specific statute of limitations provided in the Government Code, rather than the statute of
limitations which applies to private defendants.’ ” (Martell v. Antelope Valley Hospital
Medical Center (1998) 67 Cal.App.4th 978, 981.) We affirm the trial court’s timeliness
rulings with respect to the tort and Labor Code claims.
                                    III.     DISPOSITION
       The judgment and order granting summary judgment are reversed in part.
Summary adjudication of Saavedra’s claims for violation of Labor Code section 1102.5,
wrongful discipline, and defamation is affirmed. Summary adjudication of the claim for
retaliation is affirmed as to the individual defendants and reversed as to the City of
Oakland. Summary adjudication of all other claims is reversed.
       Each side shall bear its own costs.




                                              28
                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




A142088


                            29
