Filed 8/21/15 Miller-Brumfield v. Cal. Dept. of State Hospitals CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



KATHERINE MILLER-BRUMFIELD,                                         D068044

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. CIVDS1202395)

CALIFORNIA DEPARTMENT OF STATE
HOSPITALS,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Bryan F. Foster, Judge. Affirmed.



         Lyon Law, Geoffrey C. Lyon, Eugene R. Long, Jr., and Nathaniel N. Peckham for

Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney

General, Celine M. Cooper and Melissa F. Day, Deputy Attorneys General for Defendant

and Respondent.
                                     INTRODUCTION

       Katherine Miller-Brumfield (Brumfield) appeals from a summary judgment

granted in favor of her former employer, the California Department of State Hospitals

(the Department), on her first amended complaint (complaint) alleging discrimination and

retaliation related claims. She contends the trial court erred in finding the doctrine of res

judicata barred her claims. We conclude claim preclusion bars some of her claims. As to

her remaining claims, we conclude either she cannot establish a prima facie case of

discrimination or she cannot establish the Department's actions were a pretext for

discrimination or retaliation. We, therefore, affirm the judgment.

                                      BACKGROUND

       Brumfield worked for the Department as a psychiatric technician at Patton State

Hospital (Hospital). In July 2009 Brumfield filed a complaint with the Department of

Fair Employment and Housing (DFEH) alleging race discrimination, denial of medical

leave, and retaliation (first DFEH complaint).

       A few months later, in October 2009, the Department provided Brumfield with a

notice of adverse action (first notice) advising her she would be discharged in 14 days.

As grounds for the discharge, the first notice alleged in March 2009 she repeatedly failed

to provide direct, constant supervision to a patient who, because of a history of assaultive

behavior, required a two-person escort to a court hearing. The first notice further alleged

in July 2008 she repeatedly failed to provide direct, constant supervision to a patient she

escorted to dialysis treatment and she made rude, unprofessional remarks to one of the

correctional officers transporting the patient.

                                              2
       The Hospital's executive director met with Brumfield before the effective date of

the discharge. He modified the adverse action from a discharge to a temporary 10

percent salary reduction because Brumfield had never previously received a notice of

adverse action and because he believed she could learn from her misconduct and avoid

similar errors of judgment in the future. She appealed the first notice (administrative

appeal) to the State Personnel Board (Board).

       Meanwhile, in January 2010 Brumfield applied for a promotion to staff mental

health specialist. In March 2010 a panel interviewed and scored the applicants for the

position on the applicants' knowledge, communication skills, leadership abilities, and

education. The Department promoted the three highest scoring applicants. They were a

Hispanic male, who scored 97 out of 100; an African-American male, who scored 90; and

a Hispanic female, who scored 89. Brumfield scored a 77. Six other applicants scored

higher than Brumfield. Four of those applicants were women.

       The same month, the DFEH sent Brumfield a letter indicating its investigation into

her first DFEH complaint did not uncover sufficient information to establish a statutory

violation. Consequently, the DFEH closed its case on the first complaint and sent her a

right-to-sue letter.

       In July 2010 Brumfield filed a second complaint with the DFEH (second DFEH

complaint). The second DFEH complaint contained the same allegations as her first

DFEH complaint. It also contained new allegations, including that she was denied the

promotion to staff mental health specialist.



                                               3
       In October 2010 Brumfield filed a complaint with the Board under the California

Whistleblower Protection Act (Gov. Code, § 8547 et seq.)1 (whistleblower complaint).

The whistleblower complaint alleged her immediate supervisor and members of the

Hospital's upper management engaged in numerous acts of discrimination, harassment,

retaliation, and violations of statutes and administrative directives between June 2008 and

September 2010.

       In March 2011 the DFEH sent Brumfield a letter advising her it had investigated

her allegations of discrimination in the second DFEH complaint and determined there

was insufficient evidence to sustain them. Five days later, the DFEH closed the case and

sent her a right-to-sue letter.

       In the interim, the Board consolidated the hearing on Brumfield's administrative

appeal and her whistleblower complaint. Following the hearing, which spanned three

days in June 2011, the administrative law judge who presided over the matter issued a

proposed decision. The Board adopted the decision in August 2011. In the decision, the

Board dismissed the whistleblower complaint, finding Brumfield's "complaints about

individual employment rights do not constitute protected disclosures under … section

8547.2, subdivision (d)." The Board further sustained the adverse action, finding the

temporary salary reduction was just and proper as Brumfield had engaged in conduct

constituting inexcusable neglect and discourteous treatment in violation of section 19572,



1       Further statutory references are also to the Government Code unless otherwise
stated.

                                            4
subdivisions (d) and (m), respectively. Brumfield did not file a petition for writ of

mandate challenging the Board's decision.

       In October 2011 the Department served Brumfield with a second notice of adverse

action (second notice) advising her she would be discharged in seven days. As grounds

for the discharge, the second notice alleged that in May 2011, Brumfield failed to provide

direct, constant supervision of a patient assigned to her for one-to-one care because he

was at risk for falling. She also failed to complete an observation record for the patient,

which had to be updated and initialed every 15 minutes, and she falsely stated she had

asked a coworker to watch the patient for her. The second notice additionally alleged in

June 2011 she misused the Hospital's e-mail system by sending an e-mail to dozens of

employees accusing a coworker of discrimination and retaliation and accusing the

administrative law judge assigned to hear her administrative appeal and whistleblower

complaint of deliberately lying and abusing his authority.

       The Hospital's executive director met with Brumfield before the effective date of

the discharge. He found no reason to modify the adverse action because the conduct

underlying the second notice was similar to the conduct underlying the first notice,

Brumfield had not learned from her mistakes, and there was a strong likelihood she

would commit the same misconduct in the future. Brumfield appealed her discharge to

the Board, but later dismissed the appeal.

       In March 2012 Brumfield filed a third complaint with the DFEH (third DFEH

complaint). The same day, at her request, the DFEH closed the case and sent her a right-

to-sue letter. The same day she also filed the instant action for gender discrimination,

                                             5
race discrimination, disability discrimination, failure to make reasonable

accommodations, medical leave discrimination, retaliation, and failure to prevent

harassment and discrimination.

       In August 2013 the Department moved for summary judgment on multiple

grounds, including that the doctrine of res judicata barred Brumfield's causes of action,

she could not establish a prima facie case of discrimination, and she could not establish

the reasons for the Department's adverse actions were pretextual. The court granted the

motion, agreeing the doctrine of res judicata barred Brumfield's causes of action.2

                                      DISCUSSION

       "On appeal after a motion for summary judgment has been granted, we review the

record de novo, considering all the evidence set forth in the moving and opposition

papers except that to which objections have been made and sustained. [Citation.] Under

California's traditional rules, we determine with respect to each cause of action whether

the defendant seeking summary judgment has conclusively negated a necessary element



2       The trial court determined the statute of limitations precluded Brumfield from
basing any of her causes of action on alleged conduct occurring before July 27, 2009.
Brumfield forfeited any claim of error regarding this determination because she did not
raise any issue regarding it in her opening brief. (Kelly v. CB & I Constructors, Inc.
(2009) 179 Cal.App.4th 442, 451-452.) For the same reason, she forfeited any claim of
error regarding the granting of summary judgment on her failure to reasonably
accommodate cause of action. (Ibid.) Also for the same reason, she forfeited any claim
of error regarding the granting of summary judgment on her discrimination, retaliation,
and failure to prevent discrimination causes of action on any bases other than the
temporary reduction of her salary, the failure to promote her, and her discharge. (Ibid.)
Finally, she forfeited any claim of error regarding the granting of summary judgment on
her medical leave discrimination cause of action because she did not oppose the
Department's motion for summary judgment as to this cause of action. (Ibid.)
                                             6
of the plaintiff's case, or has demonstrated that under no hypothesis is there a material

issue of fact that requires the process of trial, such that the defendant is entitled to

judgment as a matter of law." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334,

fns. omitted.) " 'We are not bound by the [trial] court's stated reasons for its summary

judgment ruling; rather, we examine the facts before the trial court then independently

determine their effect as a matter of law.' " (Basurto v. Imperial Irrigation Dist. (2012)

211 Cal.App.4th 866, 877.)

                                                I

                                               A

                                               1

       The doctrine of res judicata has frequently been used "as an umbrella term

encompassing both claim preclusion and issue preclusion." (DKN Holdings LLC v.

Faerber (2015) 61 Cal.4th 813, 823 (DKN).) "Claim preclusion 'prevents relitigation of

the same cause of action in a second suit between the same parties or parties in privity

with them.' [Citation.] Claim preclusion arises if a second suit involves (1) the same

cause of action (2) between the same parties (3) after a final judgment on the merits in the

first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of

the claim altogether." (Id. at p. 824, italics omitted.)

       Issue preclusion "prevents relitigation of previously decided issues." (DKN,

supra, 61 Cal.4th at p. 824.) "[I]ssue preclusion applies (1) after final adjudication (2) of

an identical issue (3) actually litigated and necessarily decided in the first suit and (4)



                                               7
asserted against one who was a party in the first suit or one in privity with that party."

(Id. at p. 825.)

                                              2

       Despite the Department's contrary arguments, claim and issue preclusion do not

apply to decisions by the Board on whistleblower complaints. Such decisions, by

legislative design, have no preclusive effect in a subsequent judicial proceeding. (Fahlen

v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 672-673; State Bd. of

Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 976; Bjorndal v.

Superior Court (2012) 211 Cal.App.4th 1100, 1108.) We, therefore, focus our analysis

on whether the Board's decision on Brumfield's administrative appeal has any preclusive

effect on any of the causes of action in her complaint.

                                              B

                                              1

       Preliminarily, Brumfield contends claim preclusion may never apply to the

Board's decisions on administrative appeals. She is mistaken. Provided the prerequisites

for claim preclusion are met, it may apply to a final, quasi-judicial determination by an

administrative agency. (Astoria Fed. Sav. & Loan Ass'n v. Solimino (1991) 501 U.S. 104,

107-108; Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 867.)

       The Board's decision on Brumfield's administrative appeal is final for claim

preclusion purposes because she did not challenge the decision in a mandate action.

(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 71; Basurto v. Imperial

Irrigation Dist., supra, 211 Cal.App.4th at p. 878.) She also does not dispute her

                                              8
administrative appeal involved the same parties as this case. Thus, whether claim

preclusion applies in this case depends on whether her administrative appeal involved any

of the same causes of action as her complaint.

                                               2

       As to this requirement, claim preclusion " 'is based upon the primary right theory.'

[Citation.] 'The most salient characteristic of a primary right is that it is indivisible: the

violation of a single primary right gives rise to but a single cause of action. [Citation.]'

[Citation.] 'As far as its content is concerned, the primary right is simply the plaintiff's

right to be free from the particular injury suffered. [Citation.] It must therefore be

distinguished from the legal theory on which liability for that injury is premised: "Even

where there are multiple legal theories upon which recovery might be predicated, one

injury gives rise to only one claim for relief." ' " (Wade v. Ports America Management

Corp. (2013) 218 Cal.App.4th 648, 657.)

       The injury for which Brumfield's administrative appeal sought relief was her

temporary salary reduction. The primary right involved was Brumfield's right not to have

her salary reduced for wrongful reasons. The same injury and, consequently the same

primary right, are at issue in Brumfield's discrimination, retaliation, and failure to prevent

discrimination causes of action. Brumfield could have raised any discrimination and

retaliation claims connected with this injury in her administrative appeal because such

claims would have been within the scope of the administrative appeal, related to its

subject matter, and relevant to the issues presented. (Wade v. Ports America

Management Corp., supra, 218 Cal.App.4th at p. 658.) Accordingly, claim preclusion

                                               9
bars Brumfield's discrimination, retaliation, and failure to prevent discrimination causes

of action to the extent they are based on the temporary salary reduction. (Id. at p. 659.)

Given this conclusion, we need not address whether issue preclusion bars Brumfield's

causes of action as to this injury.

                                              II

         Brumfield next contends the Board's decision on her administrative appeal has no

preclusive effect on the causes of action in her complaint to the extent the causes of

action are based on the Department's failure to promote her or on her discharge. We

agree.

         As indicated above, when claim and issue preclusion apply, they extend to any

matter within the scope of the prior action, related to its subject, and relevant to the issues

presented in it such that the matter could have been raised even if it was not. (Sutphin v.

Speik (1940) 15 Cal.2d 195, 202; Takahashi v. Board of Education of Livingston Union

School Dist. (1988) 202 Cal.App.3d 1464, 1481.) Manifestly, the propriety of

Brumfield's discharge was not within the scope of the administrative appeal because her

discharge occurred two months after the administrative appeal concluded. Although the

failure to promote her occurred while the administrative appeal was pending, its propriety

was also not within the scope of the administrative appeal because it occurred well after

and under circumstances distinct from the temporary salary reduction. In addition, at

Brumfield's option, it was subject to a separate administrative appeal process. (§ 18952;

Cal. Code Regs., tit. 2, § 66.1; Basurto v. Imperial Irrigation District, supra, 211

Cal.App.4th at p. 879 [employees bringing civil actions asserting state law discrimination

                                              10
claims may, but are not required to pursue administrative remedies offered by their

employers].) Accordingly, the Board's decision on the administrative appeal has no

preclusive effect on any of Brumfield's causes of action to the extent they are based on

the failure to promote her or on her discharge.

                                             III

                                             A

       The absence of full claim or issue preclusion does not, however, end our inquiry.

Regarding the Department's failure to promote Brumfield, the Department sought

summary judgment on the alternate ground Brumfield cannot establish a prima face case

of discrimination. Brumfield opposed this point only as to her cause of action for gender

discrimination.

       Generally, to state a prima facie case of discrimination, "the plaintiff must provide

evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the

position [s]he sought or was performing competently in the position [s]he held, (3) [s]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., supra, 24 Cal.4th at p. 355.)

       Here, the evidence shows Brumfield can establish the first three elements of a

prima facie case of gender discrimination. She is a member of a protected class because

she is a woman. She was qualified for the promotion she sought because the panel

evaluating the applicants for the promotion ranked her as "Competitive," meaning she



                                             11
had adequate skills, knowledge, and ability to perform the job. She suffered an adverse

employment action because she did not receive the promotion.

       Nonetheless, the evidence does not show Brumfield can establish she was denied

the promotion because of discriminatory reasons. Rather, the evidence shows women

were well represented in the applicant pool, most of them obtained higher scores during

the interview process than Brumfield, and one of them received one of the available

promotions. The other two promotions went to two men who also obtained higher scores

during the interview process than Brumfield. We cannot reasonably infer a

discriminatory intent from these results and Brumfield has not identified any other

evidence of a discriminatory intent. We, therefore, conclude the trial court did not err in

granting summary judgment to the extent Brumfield's causes of action are based on the

Department's failure to promote her.

                                             B

       Regarding the Department's decision to discharge Brumfield, the Department

sought summary judgment on the alternate ground it provided substantial evidence of

legitimate, nondiscriminatory, nonretaliatory reasons for discharging her and she did not

meet her countervailing burden of providing substantial evidence the Department's

reasons were a pretext for intentional discrimination or retaliation. (Batarse v. Service

Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse);

Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 (Morgan);

Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 (Flait).) Brumfield

countered this ground with three points: (1) there is a factual dispute about whether she

                                             12
abandoned her patient requiring one-to-one care or whether a coworker agreed to monitor

the patient in her absence, (2) her misuse of the Department's e-mail system was not

sufficient to warrant her discharge, and (3) the close proximity between her protected

activities and her discharge indicate the discharge was retaliatory.

       As to the first point, to meet her burden, Brumfield had to do more than present

evidence showing the Department's decision was wrong, mistaken, or unwise. She had to

present evidence showing such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the Department's stated reasons that a reasonable

factfinder could rationally find them unworthy of credence and, consequently, infer the

Department did not truly act for the stated reasons. (Batarse, supra, 209 Cal.App.4th at

p. 834; Morgan, supra, 88 Cal.App.4th at p. 75.) The mere existence of differing version

of events, which in this case can be characterized as a "she said, they said" dispute, does

not show the Department's reasons are too weak, implausible, inconsistent, incoherent, or

contradictory to be believable. Thus, the existence of differing versions is not sufficient

for Brumfield to demonstrate pretext.

       As to the second point, it is immaterial whether Brumfield's misuse of the

Department's e-mail system was sufficient by itself to warrant her discharge because the

Department did not rely solely or even principally on this misconduct to discharge her.

Instead, the Department relied principally on her abandonment of her patient requiring

one-to-one care. The misuse of the Department's e-mail system was simply a secondary

instance of her inability or unwillingness to abide by the Department's policies, which

was the overarching basis of both adverse actions taken against her.

                                             13
       Finally, as to the third point, evidence Brumfield engaged in protected activity

near the time of discharge is not sufficient to meet her burden. Temporal proximity by

itself will not create a triable issue as to pretext after an employer offers a legitimate,

nonretaliatory explanation for its actions. (Arteaga v. Brink's, Inc. (2008) 163

Cal.App.4th 327, 353, 357.) Accordingly, we conclude the trial court did not err in

granting summary judgment to the extent Brumfield's causes of action are based on her

discharge.

                                        DISPOSITION

       The judgment is affirmed. The Department is awarded its appeal costs.



                                                                          MCCONNELL, P. J.

WE CONCUR:


McDONALD, J.


AARON, J.




                                              14
