California Court of Appeals, Second District, Eighth Division
APPEAL from the judgment of the Superior Court of Los Angeles County, No. TC022325 Lynn Olson, Judge.
[Copyrighted Material Omitted]
Paul Kujawsky for Plaintiff and Appellant.
Lynberg & Watkins, and Ric C. Ottaiano for Defendant and Respondent.
Sheila Butts (plaintiff) began her employment at California State University (CSU) at Dominguez Hills in September 1979 in a nonmanagerial position. She had obtained permanent status (tenure) in that position by September 1981. After more than 20 years on the job, she sought and obtained a management position in the Alumni Relations Office in 2003. Plaintiff was aware that, unlike her prior positions, management positions did not provide the benefits of permanent status. Rather, managers served “at-will” at the pleasure of the campus President or the Chancellor, and could be terminated without cause. Nevertheless, plaintiff was confident she would be successful in her job. Moreover, she understood that if things did not work out well she could always “retreat” to her previous tenured position, pursuant to university regulations.
Things did not work out well. After several years in management, plaintiff believed for various reasons that she was being discriminated against because of her race, gender and age. After filing a complaint with the Equal Employment Opportunity Commission (EEOC), the situation worsened and she was terminated from her management job in mid-2008. She believed the termination was in retaliation for her complaints about discrimination. When she sought to retreat to her prior nonmanagement position, her request was denied and the university terminated her employment altogether.
Plaintiff sued the Board of Trustees of the CSU (defendant) in superior court alleging discrimination, retaliation, and various related causes of action. Among other things, she claimed that she was improperly denied her retreat rights. After numerous procedural twists and turns, the superior court ultimately eliminated her claim for retreat rights as a matter of law. As the case approached trial, plaintiff’s discrimination claims were dropped and the matter was presented to the jury on the retaliation cause of action alone. After the jury returned a verdict that found there had been no retaliation, judgment was entered for defendant. Plaintiff’s timely appeal seeks to reverse the judgment. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began her employment at CSU Dominguez Hills in 1979 as an activities counselor. By 1981, she became an activities coordinator and was
informed that she had obtained permanent status. She was periodically promoted to higher positions within the same department, each time classified as a Student Services Professional (SSP). From the commencement of her employment until the end of 1983, she was covered by California State Civil Service rules. Beginning on January 1, 1984, pursuant to the Higher Education Employer-Employee Relations Act (Gov. Code, § 3560 et. seq.; HEERA), her positions were covered by a collective bargaining agreement between defendant and Academic Professionals of California. From 1981 through 2003, plaintiff attained permanent status in each of the positions she held.
In 2003, plaintiff became aware of an opening for Director of Alumni Relations. She saw this as an opportunity to “promote up, ” earn more money, and take on added responsibility. Ready for a change, she pursued the job and was initially appointed interim director. She gave notice to her prior supervisor of her change in status by submitting a letter of resignation indicating that her last day in her bargaining unit job would be September 9, 2003. She subsequently became the Director of Alumni Relations and remained in her management position in the alumni relations office until being terminated in late June 2008.
Plaintiff understood that management employees like the Director of Alumni Relations were not eligible for permanent status, but rather served at-will at the pleasure of the campus President or the Chancellor. (Cal. Code Regs., tit. 5, § 42723, subd. (a).) Unlike her prior tenured positions, she could be dismissed from her new position with or without cause, and regardless of whether there were funds or sufficient work to keep the position open. Nevertheless, she testified via declaration during pretrial proceedings that she took that risk because she thought she would perform well in her new position, and because she understood that she would have the right to “retreat” to her previous bargaining unit position if things did not work out.
After several years in management, plaintiff began to feel she was being discriminated against on the basis of her race, gender and age. She filed a complaint with the EEOC on December 31, 2007. In late June 2008, she received an evaluation of “marginal, ” although all prior evaluations had been either superior or satisfactory. On June 24, 2008, plaintiff received a letter of termination from the Office of the President of CSU Dominguez Hills indicating that her termination was effective on June 30, 2008. The letter did not offer plaintiff the right to retreat to her former position where she held
permanent status. On or about June 26, 2008, she wrote a letter to the campus President formally requesting rescission of the adverse termination decision, resolution of the employment issue by maintaining her in her current management position, and/or reassignment from her current placement to a position of permanent status in a class where she had passed the probationary period, at her current rate of compensation (i.e., her retreat rights). In her letter, she specifically cited section 42723 regarding retreat rights, and section 42728, regarding administrative remedies. Defendant granted none of her requests. Plaintiff’s long employment with CSU came to an end on July 1, 2008. Approximately six months later, the litigation giving rise to this appeal commenced.
2. Procedural History:
On December 31, 2008, plaintiff filed her original complaint against defendant. Causes of action 1 through 3 were for discrimination based upon race, gender, and age, respectively. The fourth cause of action was for violation of sections 1981 and 1983 of title 42 of the United States Code alleging not only discrimination but also deprivation of “her property interest of ‘retreat rights’ ” guaranteed to her by defendant. She also alleged that her reputation was stigmatized in the community and her opportunity to earn a living was seriously impaired by virtue of defendant’s allegations of performance deficiencies. The fifth cause of action was for retaliation in violation of Government Code section 12940; the sixth cause of action was for wrongful termination in violation of public policy; the seventh was for violation of the Equal Pay Act of 1963 (Pub.L. No. 88-38 (June 10, 1963) 77 Stat. 56); and the eighth was for intentional infliction of emotional distress.
After defendant demurred to the sixth, seventh and eighth causes of action, plaintiff filed her first amended complaint on June 12, 2009. The first amended complaint contained five causes of action. Plaintiff had deleted the fourth However, plaintiff retained the allegations regarding the denial of retreat rights in the "Facts Common to All Causes of Action” part of the first amended complaint.
On July 10, 2009, plaintiff filed her second amended complaint.  This pleading was now pared down to only four causes of action -- the first three for discrimination on the basis of race, gender, and age, and the fourth for retaliation. In the part of the second amended complaint relating to “Facts
Common to All Causes of Action, ” plaintiff again retained her allegations relating to the denial of her retreat rights. This became the operative pleading in the ensuing litigation.
Apparently concerned that plaintiff would attempt to prove discrimination and/or retaliation by showing that she had been denied her retreat rights, defendant brought a motion for summary adjudication which asserted that CSU had no duty to provide plaintiff with retreat rights after she was terminated from her management position. The primary grounds for defendant’s motion for summary adjudication dealt with section 42723. That regulation addresses the permanent status of management personnel and the availability of retreat rights, if any, upon termination.
According to defendant, section 42723 had a very limited application: It applied only to employees who were already in management on January 1, 1984, at the time a new Management Personnel Plan (MPP) went into effect. Since plaintiff was not promoted to a management position until 2003, defendant argued that section 42723 did not apply to her and, therefore, it had no duty to let her retreat to her previous bargaining unit position.
Plaintiff filed her opposition to defendant’s motion for summary adjudication on September 16, 2010, arguing that section 42723 did apply to her. Defendant filed its reply on September 24, 2010, and a hearing was held on September 30, 2010. On October 19, 2010 the court signed a written order stating that the motion was granted “on grounds that Defendant had no duty to provide retreat rights to plaintiff....” The order granting the motion expressly found that plaintiff “was not ‘included’ as [an MPP] employee in 1984, as she was not employed in a management position that was reclassified as [an MPP] position on January 1, 1984. Rather, she voluntarily assumed a position within the [MPP] classification in 2003. Consequently, as a matter of law, the provisions of section 42723, subdivision (c) do not apply to plaintiff.”
The case proceeded to trial. Before it commenced, plaintiff’s discrimination claims were dropped, leaving only the retaliation claim for jury consideration.
Just prior to trial, defendant brought motions in limine seeking to exclude evidence of defendant’s refusal to provide plaintiff with retreat rights, based upon its contention that section 42723 did not apply to plaintiff, which was already determined as a matter of law by the motion for summary adjudication. The trial court granted the motion in limine, noting the prior summary adjudication ruling.
After a four-week trial which concluded on June 13, 2012, the jury found that defendant had not retaliated against plaintiff when it terminated her after she complained about discrimination. Judgment for the defendant was entered based upon that verdict on July ...