Martin v. Regents of the Univ. of Cal.

Filed 8/12/08 Martin v. Regents of the University of California CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)

C054205

(Super. Ct. No.
05AS00664)

SANDRA MARTIN,

Plaintiff and Appellant,

REGENTS OF THE UNIVERSITY OF CALIFORNIA
et al.,

Sandra Martin appeals from a summary judgment in favor of

the Regents of the University of California and Philip Raimondi.
Martin filed this action alleging gender discrimination,
retaliation, and harassment.

Defendants adduced evidence plaintiff’s employment contract
was not renewed because of staff complaints. Plaintiff argued
the real reason for the adverse action was gender discrimination
and retaliation. However, plaintiff’s wholly circumstantial
evidence does not raise a rational inference that discrimination

Defendants and Respondents.

or retaliation occurred. Summary judgment was also proper on
plaintiff’s harassment by hostile work environment claim because
none of the acts complained of were sexual in nature.

We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND

Defendant Raimondi is the medical director of the
University of California Davis Health System Primary Care
Network (PCN). In 1996, he interviewed plaintiff for a position
as a podiatrist in the PCN. Plaintiff was hired for the
position, and throughout her tenure, her employment was pursuant
to a series of employment contracts. Most of these contracts
were for a period of one year, but in 2002, she signed a two
year contract that expired on September 30, 2004.

A. Early Complaints

Between approximately 1998 through early 2000, Raimondi
received an inordinate number of complaints about plaintiff.
Some of these complaints were conveyed directly to Raimondi by
staff members, while others were conveyed by the practice
managers at the various clinics at which plaintiff worked. The
complaints consistently asserted that plaintiff did not work
well with the other staff at the clinics.

As a result of the complaints, Raimondi held three meetings
with plaintiff, in April and June 1999, and January 2000.
Raimondi was not so much concerned with the truth of the
complaints against plaintiff as the fact that there were
numerous complaints — more than for any other physician. For
her part, plaintiff was concerned that Raimondi simply accepted

the complaints without attempting to determine their truth. At
the last meeting, Raimondi advised plaintiff that he would
terminate her employment if he received one more complaint about
her. Raimondi documented this meeting in a letter to plaintiff.

Soon after, plaintiff filed a grievance against Raimondi.
The grievance alleged Raimondi treated plaintiff in a
discriminatory manner on the basis of her gender. Specifically,
“[t]he discriminatory treatment [was] unfair and unsubstantiated
criticism and hostile treatment to which [her] male counterparts
have not been exposed.” An investigation commenced, which
resulted in the conclusion that there was no gender
discrimination by Raimondi.

The investigation found that instances of plaintiff being
rude and abusive with clinic staff had occurred, but that there
was no evidence of on-going problems in the last six months, and
that mitigating circumstances may have contributed to a
stressful environment leading to the incidents. However, the
investigation review recommended Raimondi take supervisor
training and counseling to enhance his communication skills.

Plaintiff appealed the first step review, resulting in a
second review by James McElroy, who made a formal finding that
there was no evidence to support a finding of gender
discrimination. Informally, McElroy suggested the letter
threatening plaintiff’s termination be removed from her file,
and that Raimondi develop his communication skills and consider
changing his management style. The letter was removed from
plaintiff’s file.

B. 2003 Complaints

Raimondi received no further complaints from staff about

plaintiff until August 2003. At that time, two staff members at
the PCN clinic in Rancho Cordova reported that plaintiff was
subjecting them to a hostile work environment. Because
plaintiff had accused him of discrimination following his
handling of the prior staff complaints, Raimondi did not perform
any investigation and did not talk to plaintiff about the
complaints, but directly forwarded the complaints to Gloria
Alvarado, Executive Director of Human Resources.

Alvarado assigned Marie Lumbard to investigate the
complaints. Lumbard’s report, to which plaintiff was allowed to
provide input, was completed on January 5, 2004. The report
made no conclusions, but was merely a compendium of statements
made by the employees Lumbard interviewed. After the report,
Raimondi discussed with Alvarado and Mike Sheesley, from
Employee and Labor Relations, whether plaintiff’s employment
should continue. They did not come to a conclusion, although
Raimondi felt it would be appropriate to terminate her.

On January 28, 2004, Raimondi received a letter from an
attorney representing plaintiff. The letter accused him of
discriminating against plaintiff.

C. Orthopedic Clinic Complaints

In March, 2004, Dr. Stephen Pinney, chief of the foot and
ankle service for the orthopedics department, met with Raimondi
to express concerns about plaintiff and to request that she be
removed from the orthopedic clinic. Dr. Pinney’s concerns were

that plaintiff was not an effective member of the team due to
poor, or lack of, interaction with the other team members.
Raimondi asked Dr. Pinney to put his concerns in writing.

Dr. Pinney wrote a letter to Raimondi complaining of
several aspects of plaintiff’s performance, but stated that her
“failure to function[] as an effective member of the foot and
ankle team” was the factor leading him to request that
plaintiff’s affiliation with the orthopedic department be
terminated. Raimondi forwarded this letter to Alvarado for
review by Human Resources.

Human Resources initiated an investigation into the
allegations in Dr. Pinney’s letter. Alvarado and Sheesley
recommended plaintiff be placed on paid administrative leave
while the investigation was conducted. On April 16, 2004,
Raimondi sent plaintiff a letter informing her of the paid
leave, and advising her that the purpose of it was to review
concerns recently raised regarding her performance. Shortly
thereafter, Raimondi was advised that plaintiff had filed a
complaint with the Department of Fair Employment and Housing
(DFEH) against defendants for gender discrimination, harassment,
and retaliation.

The investigation was conducted by Robert Murta, who was
then the Executive Director of Human Resources. Murta reviewed
the investigation previously conducted by Lumbard, but
determined it was a separate and distinct matter, since it
covered incidents occurring in the Rancho Cordova clinic, while
Dr. Pinney’s letter covered incidents occurring at the

orthopedic clinic in Sacramento. Murta interviewed six staff
members at the orthopedic clinic. These interviews may be
characterized as follows: the three medical assistants who
worked directly with plaintiff had complaints about the way they
were treated, but the nurses, including the nurse manager, a
senior vocational nurse, and a clinical nurse who did not work
directly with plaintiff, had generally positive comments
regarding plaintiff.

Murta also interviewed Dr. Pinney, who expressed
frustration over the working atmosphere and poor communication
with plaintiff. He felt plaintiff was uncooperative with him
and brusque with the staff.

Murta concluded the allegations of plaintiff’s poor
interactions with the nursing staff were true, particularly with
the medical assistants who worked directly under plaintiff’s
supervision. He said that the strained relationship between
plaintiff and Dr. Pinney was described by both as
“dysfunctional.”

Based on the continuing complaints about plaintiff, the
investigation conducted by Murta, and the earlier investigation
by Lumbard, Raimondi decided not to renew plaintiff’s contract
when it expired on September 30, 2004.

After plaintiff filed her complaint in this action,
defendants filed a motion for summary judgment, which the trial
court granted. As to the first cause of action for gender
discrimination, the trial court found plaintiff had not stated a
prima facie case. Citing Guz v. Bechtel National, Inc. (2000)

24 Cal.4th 317, 355 (Guz), the court stated that a prima facie
case requires a showing that: 1) plaintiff is a member of a
protected class, 2) she was performing competently, 3) she
suffered an adverse employment action, and 4) some other
circumstance suggested a discriminatory motive for the adverse
action. The trial court found plaintiff’s evidence was
insufficient to satisfy the last requirement of a prima facie
case.

The trial court further found that assuming plaintiff’s
evidence was sufficient to establish a prima facie case,
defendants had submitted evidence of a legitimate,
nondiscriminatory reason for not renewing plaintiff’s contract.

As to the cause of action for retaliation, the trial court
found plaintiff had established a prima facie case, but had not
proffered sufficient evidence to establish that the legitimate
business reason for not renewing her employment was merely a
pretext for what was, in fact, retaliation. The court found
plaintiff’s evidence insufficient because there was nothing to
show that Raimondi reacted negatively either to her April 2000
grievance or her April 2004 DFEH complaint. As to the former,
plaintiff worked without incident for three years after the
grievance. As to the latter, the complaint was filed after
Raimondi had already placed her on administrative leave to
investigate the allegations against her.

The trial court also found defendants were entitled to
summary adjudication on the cause of action for harassment. The
court found that most of the conduct complained of (refusing to

communicate or supply administrative support, placing her on
administrative leave, changing her job duties, interfering with
her patients, denying her requests to further her skill, and
refusing to conduct an appropriate investigation) were not
harassment because they constituted conduct necessary to a
supervisor’s job performance and business or personnel
management decisions. The remaining allegations, that Raimondi
treated her in a hostile or demeaning way, also did not
constitute harassment. The court found the evidence did not
demonstrate that defendants applied a different standard to her
based on gender, and did not demonstrate that harassing conduct
was so pervasive that it altered her working conditions.
DISCUSSION
I
Gender Discrimination Claim

Plaintiff asserted a cause of action for gender
discrimination pursuant to the Fair Employment and Housing Act
(FEHA), Government Code section 12940, subdivision (a). That
section provides in pertinent part: “It shall be an unlawful
employment practice . . . [¶] (a) For an employer, because of
the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex, age, or sexual orientation of any person,
. . . to discharge the person from employment . . . .”

A. Burden of Producing Evidence

At trial, plaintiff would have the burden of making a prima
facie case, consisting of evidence she was a member of a

protected class, she was performing her job competently, she
suffered an adverse employment action, and some other
circumstance suggesting discriminatory motive. (Guz v. Bechtel
National, Inc., supra, 24 Cal.4th at p. 355.) This would result
in a presumption of discrimination, shifting the burden to
defendants to show a legitimate non-discriminatory reason for
the adverse action. If defendants were to be successful, the
presumption would disappear, leaving plaintiff with the burden
of persuading a trier of fact that the employer’s proffered
reason was a pretext. (Kelly v. Stamps.com, Inc. (2005) 135
Cal.App.4th 1088, 1097 (Kelly).)

Defendant’s motion for summary judgment modifies the order
of the showings. The employer, as the moving party, may rely on
a showing that there were nondiscriminatory reasons for the
adverse action. It satisfies its burden if it presents evidence
that would permit a trier of fact to find that the adverse
action was the result of nondiscriminatory reasons. (Kelly,
supra, 135 Cal.App.4th at pp. 1097-1098.) To defeat the summary
judgment motion, the employee must then adduce evidence that
would be sufficient to permit a rational inference that the
employer’s actual motive was discriminatory. (Guz, supra, 24
Cal.4th at p. 361.)

B. Plaintiff’s Evidence that Reason Given for Action was
Pretextual

There is no real question but that defendants met their
burden of showing nondiscriminatory reasons for the non-renewal
of the contract. Defendants relied on evidence that the reason

for plaintiff’s termination was that she was unable to get along
with clinic staff. In addition to Raimondi’s declaration, this
evidence consisted of e-mails from three of the clinic managers
complaining of plaintiff’s treatment of staff, a letter from a
doctor documenting complaints from the nursing staff, three
written complaints from clinic staff, a formal review of
plaintiff’s grievance concluding rude and abusive behavior with
clinic staff had occurred, a letter from Dr. Pinney complaining
of plaintiff’s failure to function as an effective member of the
team, and the deposition testimony of four medical assistants
complaining of the way plaintiff treated them.

The issue here is whether plaintiff met her burden of
showing that a reasonable trier of fact could conclude from her
evidence that defendants’ proffered reasons were pretextual. A
plaintiff may meet her burden and avoid summary judgment by
offering “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 v. Dept. of Social Services (1997) 57
Cal.App.4th 997, 1004-1005.)

Plaintiff attempted to show that defendants’ explanation
for not re-hiring her was not credible, not by showing that
there were no staff complaints about her, but by arguing there
was no merit to the staff complaints about her, by arguing that
other doctors (namely Pinney) were the subject of staff

complaints, yet no action was taken against them, and by arguing
that the complaints against her were not properly investigated.

Plaintiff presented evidence that she treated staff no
worse than other physicians, and argued the complaints against
her were trivial or were made by problematic employees.
Essentially, her argument was that the complaints against her
had no merit or were not true. However, “[i]t is the employer’s
honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that
is at issue in a discrimination case.” (King v. United Parcel
Service, Inc. (2007) 152 Cal.App.4th 426, 436.) “[C]ourts ‘only
require that an employer honestly believed its reason for its
actions, even if its reason is “foolish or trivial or even
baseless.”’ [Citation.]” (Villiarimo v. Aloha Island Air,
Inc. (9th Cir. 2002) 281 F.3d 1054, 1063.) There is no question
but that numerous complaints were made, and that defendants
honestly believed the complaints were serious enough to warrant
non-renewal of plaintiff’s contract.

As to plaintiff’s claim that the investigation into the
complaints against her were inadequate to her detriment, she
sets forth no evidence to support this claim.

Plaintiff’s argument that Dr. Pinney did not suffer any
adverse action because of staff complaints does nothing to show
defendants’ reasons were discriminatory. A showing that
defendants treated similarly situated men more favorably than
plaintiff would be probative of pretext (Vasquez v. County of
Los Angeles (9th Cir. 2003) 349 F.3d 634, 641), but the evidence

falls short of such a showing. Plaintiff was not similarly
situated with Dr. Pinney. Dr. Pinney was chief of the
orthopedic foot and ankle service for the Department of
Orthopedics. Plaintiff was a non-surgical podiatrist employed
by the U.C. Davis Health System Primary Care Network.
Plaintiff’s supervisor was Raimondi. Plaintiff admits Dr.
Pinney’s supervisor was Dr. George Rab. Rab stated he never
received any formal complaints about Dr. Pinney. By contrast,
Raimondi stated he received more complaints about plaintiff than
any other physician. Additionally, defendants adduced evidence
that other similarly situated male physicians were terminated
for similar reasons. Raimondi terminated the contracts of eight
male physicians, some of whom were terminated because they could
not get along with staff members.

Plaintiff’s evidence was insufficient to allow a rational
inference that defendants’ proffered explanation for the non-
renewal of her contract was not worthy of credence.
C. Plaintiff’s Evidence of Discriminatory Intent

Plaintiff attempted to show through the testimony of other
female physicians who had worked for Raimondi and other
unattributed statements contained in an investigative report,
that he discriminated against women. We first address the
admissibility of the unattributed statements in the
investigative report as well as attachments to the female
physicians’ reports, because plaintiff claims the trial court
improperly excluded them.

1. Statements and Attachments were Hearsay

The trial court sustained defendants’ objections to

statements contained in a report written by Annetta Myers. This
report was prepared in 2001 as a part of the level II review of
plaintiff’s grievance pursuant to University of California
policy. The statements contained in the report appear to be
responses from staff when interviewed about gender
discrimination by Raimondi. As an example, one statement reads:
“The idea of Raimondi being gender biased is absolutely
ridiculous. Raimondi is fair, tells me when I screw up, but is
the first to promote me when I do good, is far and away the best
boss.” Another statement reads: “Raimondi tends to target
women more than men. I have seen Raimondi treat both poorly,
but more so with females than males. Raimondi is belittling,
demeaning, writes inflammatory emails, [and] is rude.” None of
the statements is attributed to its author.

Plaintiff argues the statements were admissible because
they are evidence of defendants’ knowledge that Raimondi
discriminated against women employees and evidence of their
failure to take corrective action.

While the employer’s knowledge of discrimination by an
employee may be material to recovering damages from the employer
for such discrimination (see Civ. Code, § 3294, subd. (b)), at
this stage of the summary judgment, the only issue is whether
there is evidence a discriminatory reason motivated the employer
in taking the adverse action. The statements are hearsay for
that purpose because they are evidence of a statement that was

made other than by a witness while testifying, and are offered
to prove the truth of the matter stated, i.e., that Raimondi
discriminated against women. (Evid. Code, § 1200.) The
statements were properly excluded by the trial court.

The trial court also properly sustained objections to the
attachments to the declarations of the female physicians. The
attachments consisted of letters the declarants had written
prior to their declarations describing their experiences with
Raimondi.

Plaintiff argues they are not hearsay because they do not
recount someone else’s statements, and points out that the
declarants could have made the same statements in their
declaration. Also, plaintiff again argues that the statements
are admissible to show defendants had notice that Raimondi
discriminated against women.

The test of hearsay is not whether the person making the
prior statement is the same person before the court. It is
hearsay because it was not made by the witness “while testifying
at the hearing . . . .” (Evid. Code, § 1200, subd. (a).) Even
if the statements would have been admissible had they been part
of the declaration, they are not admissible when simply attached
to the declaration. As with the statements in the Myers report,
the attachments are being offered here to prove the truth of the
matters asserted, not to prove the defendants’ state of mind or
knowledge, which is not at issue in this summary judgment
proceeding.

2. Declarations of Female Physicians

Plaintiff presented the testimony of six female doctors who

worked with Raimondi. None of these physicians claimed to have
suffered any adverse employment action from Raimondi.

The trial court found that the deposition testimony and
declarations of the female physicians failed to establish a
prima facie case of discrimination because they did not suggest
a discriminatory motive for the adverse action.

The court found that as a preliminary matter, all of the
female physicians statements were “largely conclusory.” None of
them mentioned any specific circumstance, but rather
characterized Raimondi as treating men and women differently.
The trial court also found that two of the female physician
declarations, those of doctors Bisharat and Sahba, were from
physicians who were not working under Raimondi when he received
the first complaint regarding plaintiff, and had not worked for
Raimondi for a year prior to the first complaint.

The court stated that the most important deficiency of
plaintiff’s evidence was that none of the female physicians who
complained that Raimondi treated men and women differently
claimed to have suffered any adverse employment action because
of their gender. The court found that short or even rude
treatment of women was insufficient to suggest a discriminatory
motive for the non-renewal of plaintiff’s employment contract.

Even if the trial court was wrong in determining that the
statements were insufficient to establish a prima facie case,
the summary judgment was properly granted because the statements

were insufficient to allow a rational inference that defendants’
proffered reason for not renewing plaintiff’s contract was
pretextual.

Dr. Albina Gogo stated she was also counseled by Raimondi
because of her interactions with staff. She said his manner of
speaking to her was “very harsh” and that she felt
unappreciated. She stated she had thought the hierarchy in
medicine ended after residency, and that she felt she was being
chastised as a child and not respected as a physician. She said
she had witnessed Raimondi responding to certain women
physicians differently, and that he would be curt, short, and
shoot down the opinions voiced by certain women. She did not
ever recall him doing the same with male physicians.1

The other female physicians also declared that Raimondi
“treated men and women very differently”, that he was “very
domineering with women,” and that in mixed groups he reacted
negatively to comments made by women, but did not react this way
to men.

The trial court considered this evidence, but found it to
be “largely conclusory” and found: “Not one individual mentions
a specific meeting or other circumstance when the behavior
complained of occurred. Further, two declarants, . . . did not

1 Raimondi stated he had to counsel Gogo about her
interactions with staff. He stated the difference between Gogo
and plaintiff was that Gogo listened to what he said and agreed
to work on the problem. Gogo continues to be an employee of the
PCN.

even work under Raimondi after 1998, the year before he received
the first email complaining about plaintiff. More importantly,
however, absent from all the declarations and deposition
testimony is any evidence that Raimondi ever took any action on
the basis of gender that had any [e]ffect [on] the terms or
conditions of employment . . . . At most, plaintiff presents
evidence that Raimondi was, at some unspecified times, short
with, perhaps even rude to, women physicians under his
supervision in both ‘mixed company’ and in private.”

Plaintiff argues the trial court impermissibly weighed the
evidence. We disagree. Even though the court may not weigh the
evidence as though it were sitting as the trier of fact, it must
nevertheless determine what the evidence could show, or what the
inferences could imply to “a reasonable trier of fact.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
The trial court did not engage in impermissible weighing of the
evidence, but instead found that the evidence submitted by
plaintiff was insufficient to meet plaintiff’s burden to defeat
the motion for summary judgment.

To defeat the motion for summary judgment, an employee is
required to adduce evidence that would permit a reasonable trier
of fact to find that intentional discrimination occurred.
(Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at p. 1098.)
The purpose of a summary judgment motion is to weed out those
cases that do not warrant the time and cost of factfinding by
trial. (Martin v. Lockheed Missiles & Space Co. (1994) 29
Cal.App.4th 1718, 1735.) Therefore, the plaintiff must produce

“‘substantial responsive evidence’” that the defendants’ showing
of cause was untrue or pretextual, and speculation does not
constitute substantial evidence. (Ibid.) Where, as here, the
plaintiff’s evidence of discriminatory intent is circumstantial,
the evidence must be specific and substantial to create a
triable issue of fact. (Vasquez v. County of Los Angeles,
supra, 349 F.3d at p. 642.) Finally, the employee’s evidence
must relate to the employer’s motivation for the adverse action
and must demonstrate a causal link between the prohibited
motivation and the adverse action. (King v. United Parcel
Service, Inc, supra, 152 Cal.App.4th at pp. 433-434.)

In this case the other physicians stated they observed
Raimondi treating men more favorably than women in mixed
company, but there was no evidence to allow a trier of fact to
make the link between motivation and adverse action. None of
the women claimed to have had any adverse action taken against
them because of their gender. There was no evidence in the
record linking any adverse action taken by Raimondi against an
employee to a discriminatory intent on his part. In light of
defendants’ strong showing of proper grounds for action, any
inference of discriminatory intent is unreasonable absent such
evidence. Summary judgment for the employer is appropriate
where the employer makes a strong showing of innocent reasons,
and the countervailing circumstantial evidence of discriminatory
motive is too weak to raise a rational inference that
discrimination occurred. (Guz v. Bechtel National Inc., supra,
24 Cal.4th at p. 362.) No reasonable inference of

discrimination can be drawn from plaintiff’s evidence.
Therefore, plaintiff has not met her burden of demonstrating a
triable issue of fact, and the summary judgment was properly
granted.

The cases plaintiff cites do not further her argument. She
cites Strumph v. Thomas & Skinner, Inc. (7th Cir. 1985) 770 F.2d
93, and argues the statements of other employees can show
discrimination even where the other employees had no adverse
action taken against them. However, in Strumph there was direct
evidence of discriminatory intent and the circumstantial
evidence was strong enough to support a reasonable inference of
discrimination. The direct evidence in that age discrimination
case was a statement by the president of the company that he
wanted to eliminate older employees. (Id. at p. 97.) The
circumstantial evidence was the statement of one older employee
that his job duties were decreased until he had nothing of
substance or importance to do and the statement of another that
she felt unwelcome in her job because of her age. (Ibid.)

Here, by contrast, the other female physicians stated they
thought Raimondi treated male physicians better in a group than
some female physicians, but none of them suffered any adverse
employment action. Although most of the physicians stated that
Raimondi’s treatment of them was the reason or a reason that
they left the PCN, none asserted she left the PCN because of
gender discrimination in the workplace.

Plaintiff cites United States Postal Service Bd. Of
Governors v. Aikens (1983) 460 U.S. 711, 713, fn. 2 [75 L.Ed.2d

403, 409], for the proposition that an employer’s derogatory
remarks about persons in a protected class may show
discriminatory intent. However, in that case, the evidence
showed white persons were consistently promoted over black
persons, the plaintiff had no negative comments in his
employment file, he had more seniority and training than the
white persons promoted above him, he had substantially more
education (a Masters Degree and three years toward a Ph.D.) than
white employees who were promoted ahead of him, none of whom had
a college degree, and the person in charge of promotion had made
numerous derogatory remarks about blacks. (Ibid.) The court
stated that it would not be error for the trier of fact to find
on all the evidence that the employee suffered discrimination.

Plaintiff’s evidence, by contrast, shows no preference
toward males in hiring or promotion, and no derogatory comments
by Raimondi about women from which a trier of fact could infer a
discriminatory motive. The only evidence from which a trier of
fact could infer anything other than gender neutral conduct on
Raimondi’s part, is the opinion of some women who worked for him
that he was nicer to men. When considered in light of
plaintiff’s well documented problems relating to other staff
members, such opinions, which were based on very little in the
way of specific facts, are simply insufficient to produce a
reasonable inference of discrimination.

In Robinson v. Runyon (6th Cir. 1998) 149 F.3d 507, 512-
513, also cited by plaintiff, the issue was whether the trial
court erred in excluding evidence of racist writings that had

circulated in the work place with the knowledge and acceptance
of management. By contrast, there is no evidence in this case
that Raimondi or any other supervisor ever made derogatory
comments on the basis of gender. The Robinson case was in a
different posture from the instant case, because it was
concerned only with whether the evidence should have been
excluded at trial because it was irrelevant and more prejudicial
than probative.

Clark v. Claremont University Center (1992) 6 Cal.App.4th
639, also cited by plaintiff, is inapplicable. That appeal was
taken after a trial on the merits and verdict for the plaintiff.
The court held there was sufficient evidence to support the
verdict, a very different question than the one posed here.
Additionally, unlike this case, there was direct evidence of
discrimination. (Id. at pp. 652-653.)

Here, plaintiff was put to the test of showing that her
circumstantial evidence demonstrated a reasonable inference that
the action taken against her was motivated by discrimination.
Plaintiff’s evidence was too speculative and too attenuated to
meet this test.

II
Retaliation
To establish a prima facie case of retaliation, plaintiff

must show she engaged in protected activity after which she was
subjected to an adverse employment action, and there was a
causal link between the protected activity and the adverse
action. (Morgan v. Regents of University of Cal. (2000) 88

Cal.App.4th 52, 69 (Morgan).) The adverse action must follow
within a relatively short time of the protected activity.
(Ibid.)

On a motion for summary judgment, the parties are subject
to the same shifting burdens set forth in the discussion of
plaintiff’s gender discrimination claim. Where, as here, the
employer offers a legitimate reason for the adverse action,
plaintiff must adduce evidence that would permit a reasonable
trier of fact to find that the proffered reason was pretextual.
(Morgan, supra, 88 Cal.App.4th at p. 68.) As with evidence of
discrimination, circumstantial evidence of pretext must be
specific and substantial to create a triable issue with respect
to whether the employer intended to discriminate on an improper
basis. (Id. at p. 69.)

The complaint does not specify what actions defendants are
alleged to have retaliated against. Plaintiff’s briefs on
appeal mention only the 2000 grievance and the 2004 letter from
plaintiff’s attorney accusing Raimondi of gender discrimination.

There was no direct evidence of pretext in this case, and
the only circumstantial evidence offered was the fact that
plaintiff filed one grievance and one FEHA complaint against
Raimondi, that her attorney sent one letter, and that the non-
renewal of her contract occurred afterward.

As stated above, a prima facie case for retaliation must
show that the adverse action followed within a relatively short
time of the protected activity. However, the 2000 grievance was

too remote in time to be considered a motivating factor in the
action taken against her in 2004.

As to the other two actions–the letter from plaintiff’s
attorney and the FEHA complaint–the evidence is simply too weak
to raise a triable issue in light of defendants’ strong showing
of innocent reason. The fact that plaintiff was not terminated
after her 2000 grievance, but instead worked nearly three years
without incident, that the letter from her attorney was sent
after an investigation into complaints against plaintiff had
been completed, and that the DFEH complaint was sent after
plaintiff had been placed on paid administrative leave, further
weaken plaintiff’s showing of pretext. Circumstantial evidence
of pretext must be specific and substantial to overcome
defendants’ evidence of innocent reason for action, and
plaintiff’s evidence falls short.
III
Sexual Harassment Claim

Plaintiff’s second cause of action alleged she suffered
harassment due to her gender. She alleged this harassment
included speaking to her in a hostile and demeaning way,
refusing to communicate with her, instigating groundless
allegations of misconduct, holding her to performance standards
not applied to male physicians, refusing to respond to her
requests for administrative support, withholding administrative
support, placing her on administrative leave, changing her job
duties, giving her a demeaning job assignment, interfering with
her relationships with patients, refusing to investigate her

complaints appropriately, and refusing her requests to further
her professional skills.

The FEHA prohibits both harassment and discrimination, but
they are distinct types of conduct. (Janken v. GM Hughes
Electronics (1996) 46 Cal.App.4th 55, 62 (Janken).) Harassment
is “a type of conduct not necessary to a supervisor’s job
performance,” and is to be distinguished from “business or
personnel management decisions-which might later be considered
discriminatory-[which are] inherently necessary to performance
of a supervisor’s job.” (Id. at p. 63.)

Harassment includes “verbal epithets or derogatory
comments, physical interference with freedom of movement,
derogatory posters or cartoons, and unwanted sexual advances.”
(Janken, supra, 46 Cal.App.4th at p. 63.) It is “conduct
outside the scope of necessary job performance, conduct
presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives. Harassment
is not conduct of a type necessary for management of the
employer’s business or performance of the supervisory employee’s
job.” (Ibid.)

Discrimination, by contrast, arises “out of the performance
of necessary personnel management duties.” (Janken, supra, 46
Cal.App.4th at p. 63.) It arises out of the type of conduct
that is essential to personnel management. (Id. at pp. 63-64.)

None of the conduct in which Raimondi was alleged to have
engaged was outside the scope of necessary job performance. All
of it was conduct which might later be perceived to be

discriminatory, but none of it was in the nature of verbal
epithets or derogatory comments based on gender, derogatory
posters or cartoons, or unwanted sexual advances.

Plaintiff argues she presented evidence of harassment
arising from a hostile work environment. To prevail on such a
claim, a plaintiff must “demonstrate that the conduct complained
of was severe enough or sufficiently pervasive to alter the
conditions of employment and create a work environment that
qualifies as hostile or abusive to employees because of their
sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th
446, 462 (Miller).)

The California Supreme Court has cited with approval the
federal Equal Employment Opportunity Commission’s definition of
sexual harassment as “unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual
nature that has the ‘purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.’ (29
C.F.R. § 1604.11(a)(3) (2004).)” (Miller, supra, 36 Cal.4th at
p. 463; Lyle v. Warner Bros. Television Productions (2006) 38
Cal.4th 264, 278 (Lyle).) A hostile work environment sexual
harassment claim requires that the employee show she was
subjected to sexual advances, sexual conduct, or sexual comments
that were unwelcome because of sex and were “‘“sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive work environment[.]”’
[Citations.]” (Lyle, supra, at p. 279.)

Because Raimondi’s alleged conduct had absolutely nothing
to do with sex or with plaintiff’s gender, she cannot state a
claim of hostile work environment sexual harassment. Her real
claim was that she was treated more harshly than her male
counterparts, which is a claim of discrimination, not
harassment, and which we have already addressed in Part I.
DISPOSITION

The judgment is affirmed. Respondents shall recover costs
on appeal.

We concur:

SCOTLAND , P. J.

BLEASE , J.

ROBIE , J.