Dinslage v. City and County of San Francisco
209 Cal. Rptr. 3d 809
Cal. Ct. App.2016Background
- David Dinslage, a longtime Recreation & Parks employee, worked primarily on programs for persons with disabilities; his classification (3284) was eliminated during a 2010 Department reorganization focused on inclusion and budget cuts.
- The Department replaced old classifications with new ones (including 3286 recreation coordinator); Dinslage applied, took exams and interviews, performed poorly in interviews, and was not rehired; he retired August 2010.
- Dinslage opposed program changes (including relocation/elimination of a car show that funded disability events) and criticized the Department’s shift from segregated adaptive programming to inclusive programming.
- He sued under FEHA for age discrimination, harassment, and retaliation; defendants moved for summary judgment asserting legitimate nondiscriminatory reasons (budget, program changes, poor interview performance, and concerns he would resist reorganization).
- The trial court granted summary judgment on all claims; on appeal the court reviewed de novo and affirmed dismissal of age discrimination (unpublished) and—publishing the retaliation analysis—held he failed to make a prima facie retaliation claim because his opposed conduct was not opposition to an unlawful employment practice under FEHA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Age discrimination (disparate treatment) | Dinslage: he is over 40 and not rehired; alleged threats/targeting support inference of age bias | City/Dept: layoffs and reorg were budget- and policy-driven; nonselection due to poor interview and opposition to inclusion | Summary judgment affirmed — plaintiff failed to rebut legitimate nondiscriminatory reasons or show discriminatory motive |
| Retaliation under Gov. Code §12940(h) | Dinslage: he was retaliated against for opposing Dept. actions harming the disabled, opposing car show relocation, and promoting disabled rights | City/Dept: his complaints concerned treatment of the general public/ programs, not unlawful employment practices; thus not protected activity | Summary judgment affirmed — plaintiff did not engage in protected activity because opposition was not to an employment practice reasonably believed to be unlawful under FEHA |
| Prima facie burden and reasonableness of belief | Dinslage: his advocacy and complaints were made in good faith and he reasonably believed practices were discriminatory | City/Dept: objective-law standard requires opposition to employment practices; advocacy re: public members or program choices not covered | Held: both subjective and objective reasonableness required; his belief was not objectively reasonable because the conduct opposed was not an employment practice covered by FEHA |
| Use of plaintiff declarations/assertions at summary judgment | Dinslage: his declaration and union grievance show targeting/ procedural violations | City/Dept: declarations are conclusory/self-serving; documentary/declarant evidence shows proper procedures and interview scores | Court: discounted conclusory, uncorroborated declarations; plaintiff failed to point to record evidence creating triable issues |
Key Cases Cited
- Guz v. Bechtel Nat. Inc., 24 Cal.4th 317 (California) (adopts McDonnell Douglas burden-shifting for FEHA disparate treatment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S.) (framework for prima facie case and employer rebuttal)
- Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (U.S.) (employer’s burden to articulate legitimate nondiscriminatory reasons)
- Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028 (California) (elements of FEHA retaliation and 'opposition' clause analysis)
- Kelly v. The Conco Companies, 196 Cal.App.4th 191 (California) (reasonableness of employee's belief can be shown by controlling appellate authority)
- Flait v. North American Watch Corp., 3 Cal.App.4th 467 (California) (objective reasonableness measured against substantive law)
- King v. United Parcel Service, Inc., 152 Cal.App.4th 426 (California) (self-serving, conclusory declarations insufficient to create triable issue)
- Nealy v. City of Santa Monica, 234 Cal.App.4th 359 (California) (opposition must be to employer’s unlawful employment practices to be protected)
- Little v. United Technologies, 103 F.3d 956 (11th Cir.) (reasonableness of belief has subjective and objective components)