Dinslage v. City and County of San Francisco

Facts

The statutory framework. The claim arose under FEHA’s anti-retaliation provision. Government Code section 12940, subdivision (h) makes it unlawful “‘[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person … has opposed any practices forbidden under this part [FEHA] … .’” (Dinslage, supra, 5 Cal.App.5th at p. 380.) To make out a prima facie case under the statute, an employee must show “(1) he engaged in a protected activity, (2) the Department subjected him to an adverse employment action, and (3) a causal link existed between the protected activity and the Department’s action.” (Ibid.) The first element is the battleground: “For protection under the ‘opposition clause,’ an employee must have opposed an employment practice made unlawful by the statute.” (Id. at p. 381.)

The employee and his work. David P. Dinslage worked for the Recreation and Parks Department of the City and County of San Francisco from June 1972 until his retirement in August 2010. (Dinslage, supra, 5 Cal.App.5th at p. 373.) Beginning around 1998 he became the coordinator of assistive services, “working almost exclusively on activities for children and adults with disabilities,” organizing annual parties — “a rock and roll party, a Halloween party, a Thanksgiving luncheon, and a Christmas luncheon” — and other small-scale events. (Ibid.)

The car show. Beginning in 2006, the Department considered relocating “Jimmy’s Old Car Picnic,” a car show held in Golden Gate Park’s Speedway Meadow since 1988, because of “the damage to the meadow caused by the event.” (Dinslage, supra, 5 Cal.App.5th at p. 373.) The show’s organizers donated proceeds to fund Department activities for persons with disabilities, including Dinslage’s parties. (Ibid.) Dinslage and the organizers opposed the relocation; ultimately the Recreation and Park Commission voted to keep the show at Speedway Meadow after the organizers agreed to mitigation measures. (Id. at pp. 373–374.)

The shift to inclusion. In the years before 2010, the Department concluded its existing activities “were not adequately meeting the needs of the disabled community, largely because the Department was not providing the disabled with sufficient access to the programs available to the general public.” (Dinslage, supra, 5 Cal.App.5th at p. 374.) It decided “to change its focus from providing separate, segregated programs to people with disabilities to ensuring all of the Department’s programs were accessible,” renamed Dinslage’s title to inclusion coordinator, and in 2009 and 2010 “eliminated many of the special events Dinslage organized, as they were segregated events.” (Ibid.) Dinslage “disagreed with these programmatic changes” and met with superiors to voice his disagreement; his resistance was reflected in a poor final performance evaluation. (Ibid.)

The reorganization, layoff, and failure to be rehired. Driven by a 2004 consultant assessment and a City budget crisis — for fiscal year 2010–2011 then-Mayor Gavin Newsom instructed the Department to contribute $12.4 million to balance the City’s budget — the Department adopted a new recreation model and discontinued two classifications, including Dinslage’s position (3284 recreation director). (Dinslage, supra, 5 Cal.App.5th at pp. 374–375.) Approximately 148 employees were laid off from the affected classifications. (Id. at p. 375.) Dinslage applied for a new 3286 recreation coordinator position but “performed poorly in the interview”; the panelists “found him negative and resentful,” and one said Dinslage “‘dismissed the whole reorganization and the need for it.’” (Id. at p. 376.) His average interview score of 2.67 fell below the satisfactory cutoff of 3, and he was not selected. (Ibid.) He retired effective August 29, 2010. (Ibid.)

Procedural history

Dinslage filed his original complaint on June 29, 2011, and the operative second amended complaint on July 13, 2012, alleging age discrimination, harassment based on age, and retaliation in violation of FEHA. (Dinslage, supra, 5 Cal.App.5th at pp. 372, 376–377.) He claimed he “had been retaliated against and harassed because of his age and his … opposition to Department actions that discriminated against people with disabilities.” (Id. at p. 372.) The defendants moved for summary judgment on all claims, arguing as to retaliation that Dinslage “had never complained about any discrimination against himself or another employee prohibited by the FEHA,” and that any complaints “concerned what Dinslage believed to be Department actions resulting in discrimination against members of the general public.” (Id. at p. 377.) On March 25, 2014, the trial court granted the motion in its entirety, entering judgment on May 15, 2014. (Ibid.)

On appeal, the Court of Appeal reviewed the record de novo. (Dinslage, supra, 5 Cal.App.5th at p. 372.) In the unpublished portion of its opinion, the court affirmed summary judgment on the age discrimination claim because Dinslage failed to rebut the Department’s legitimate, nondiscriminatory reasons. (Id. at pp. 372, 380.) In the published portion, the court affirmed summary judgment on the retaliation claim because Dinslage “failed to make out a prima facie case of retaliation.” (Id. at p. 372.) The panel was unanimous: Presiding Justice Jones wrote the opinion, with Justices Simons and Needham concurring. (Id. at p. 384.) The Supreme Court denied review on February 15, 2017.

Issue

The precise question was whether Dinslage engaged in “protected activity” for purposes of FEHA’s opposition clause — that is, whether his advocacy for the disabled community, his opposition to the car show’s relocation, and his opposition to the elimination of programs he believed benefited the disabled, qualified as opposition to “‘practices forbidden under this part [FEHA].’” (Dinslage, supra, 5 Cal.App.5th at p. 380.) Embedded in that question was the legal point the court treated as dispositive: whether opposition to an employer’s conduct that allegedly harms members of the general public — rather than employees or applicants — can ever be protected activity under section 12940, subdivision (h).

Holding

Reasoning

The summary-judgment posture and the appellant’s burden. The court framed the case through the burden-shifting test FEHA borrows from federal law, noting that “[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.” (Dinslage, supra, 5 Cal.App.5th at p. 378, quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) On a defense summary-judgment motion resting on nondiscriminatory reasons, the employer carries its burden by presenting evidence those reasons “‘would permit a … trier of fact to find, more likely than not, that they were the basis for the termination,’” and the employee must then “‘adduce or point to evidence raising a triable issue’” of intentional discrimination. (Id. at pp. 378–379.) Although review is de novo, the court stressed that it “‘do[es] not transform into a trial court’”: the appellant bears the burden of affirmatively demonstrating error and pointing to record evidence, and “‘[i]t is not the court’s duty to attempt to resurrect an appellant’s case or comb through the record.’” (Id. at p. 379, quoting Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.) That posture mattered: the court twice noted that Dinslage’s retaliation briefing “provides almost no citations to the record,” such that the court “would be fully justified in disregarding the arguments.” (Id. at p. 381, fn. 6.)

The objective-reasonableness requirement for protected activity. The court accepted the settled rule that protected activity is not confined to opposing conduct ultimately found unlawful; it also covers opposing “‘conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’” (Dinslage, supra, 5 Cal.App.5th at p. 381, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.) But the belief must be both subjectively held and objectively reasonable. Drawing on federal authority, the court explained that a plaintiff “‘must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented,’” and that the objective reasonableness “‘must be measured against existing substantive law.’” (Id. at pp. 381–382, quoting Little v. United Technologies (11th Cir. 1997) 103 F.3d 956, 960, and Clover v. Total System Services, Inc. (11th Cir. 1999) 176 F.3d 1346, 1351.) This dual standard is what doomed Dinslage’s claim: however sincere his concern for the disabled, it could not be objectively reasonable to believe that the conduct he opposed was unlawful employment discrimination.

Identifying the three asserted protected activities. Reading the opening brief generously, the court found Dinslage identified “at most three allegedly protected activities”: (1) “his overall support and promotion of the rights of the disabled community”; (2) “his opposition to the relocation of Jimmy’s Old Car Show”; and (3) his speaking “in opposition to what he viewed as the elimination of a program benefitting the disabled community.” (Dinslage, supra, 5 Cal.App.5th at p. 382.) The court concluded none was protected, “because none of them express opposition to practices one could reasonably believe are unlawful under the FEHA.” (Ibid.)

Advocacy for the disabled public is not opposition to an unlawful employment practice. The decisive analytical move was to insist that the “practices forbidden” by FEHA are employment practices. The court emphasized that “‘[t]he FEHA protects employees against retaliation … for opposing conduct made unlawful by the act.’” (Dinslage, supra, 5 Cal.App.5th at p. 382, quoting Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.) Dinslage cited Yanowitz at length “but … d[id] not explain how it supports his claim that the actions he opposed violated the FEHA,” and cited “no authority for his apparent claim that general advocacy for the disabled community or opposition to elimination of allegedly beneficial programs constitutes ‘opposing conduct made unlawful by the act.’” (Ibid.) That gap was “fatal,” because case law and FEHA’s implementing regulations are “‘uniformly premised on the principle that the nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.’” (Id. at p. 382, quoting Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652–653.)

“Unwise or even improper” is not “unlawful.” The court then drew the line that gives the case its doctrinal force: “That Dinslage opposed what he viewed as unwise or even improper actions by the Department is not enough to make his opposition a protected activity.” (Dinslage, supra, 5 Cal.App.5th at pp. 382–383.) To be protected, the actions “‘must oppose activity the employee reasonably believes constitutes unlawful discrimination,’” and “‘[a] plaintiff’s belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form.’” (Id. at p. 383, quoting Yanowitz, supra, 36 Cal.4th at p. 1047, and Kelly v. Howard I. Shapiro & Associates Consulting (2d Cir. 2013) 716 F.3d 10, 15.) Then came the holding’s sharpest formulation: even if the Department’s actions could be construed as discrimination against disabled citizens, “discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA.” (Ibid.)

The federal “public, not employees” line of authority. The court anchored that proposition in a string of federal decisions distinguishing harm to the public from harm to employees: Wimmer v. Suffolk County Police Dept. (2d Cir. 1999) 176 F.3d 125, 136 (officer could not reasonably believe he was fired for opposing a prohibited employment practice where his complaints concerned discrimination “against members of [the] general public”); Crowley v. Prince George’s County, Md. (4th Cir. 1989) 890 F.2d 683, 687 (“‘racial harassment perpetrated by police officers against members of the community’” was not a discriminatory employment practice supporting retaliation); and Taneus v. Brookhaven Memorial Hospital Medical Center (E.D.N.Y. 2000) 99 F.Supp.2d 262, 267 (no protected activity where the practice complained of “‘was not directed at employees but … to individuals who are not in an employment relationship with the defendant’”). (Dinslage, supra, 5 Cal.App.5th at p. 383.) The court added that the Ninth Circuit had held whistleblowing on an employer’s environmental practices unprotected “‘because it is not conduct that gives rise to discrimination on the basis of any of the protected categories under FEHA.’” (Ibid., quoting Arn v. News Media Group (9th Cir. 2006) 175 Fed.Appx. 844, 846.) Indeed, the court observed, even activity “with a much closer relationship to an employer’s actual practices” has been held unprotected, citing Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 381, for the proposition that “‘protected activity does not include a mere request for reasonable accommodation.’” (Ibid.)

The car show: a separate, independent defect. Dinslage’s opposition to relocating Jimmy’s Old Car Picnic failed for an additional reason. Quoting Yanowitz, the court explained that “‘complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.’” (Dinslage, supra, 5 Cal.App.5th at p. 384, quoting Yanowitz, supra, 36 Cal.4th at p. 1047.) Worse, Dinslage “makes no effort to explain how opposition to the car show’s relocation might be construed as opposition to a prohibited employment practice,” and his failure to set forth the reasoning behind the argument permitted the court “to disregard it.” (Ibid.) The relocation dispute, in other words, was a logistics-and-environment fight about a public event, not an employment-discrimination grievance.

No reasonable belief, no prima facie case. Pulling the threads together, the court held that Dinslage “could not reasonably have believed his actions constituted protected activity, because there is no dispute his opposition was not directed at the Department’s employment practices,” citing Clark County School District v. Breeden (2001) 532 U.S. 268, 270, for the principle that retaliation cannot lie where “‘no one could reasonably believe’” the conduct complained of violated the anti-discrimination statute. (Dinslage, supra, 5 Cal.App.5th at pp. 383–384.) “In sum, Dinslage has failed to show that he engaged in protected activity under the FEHA. Because he did not establish he had engaged in such activity, he failed to make out a prima facie case of retaliation.” (Id. at p. 384.) There was no concurrence or dissent; the panel was unanimous. The judgment was affirmed and respondents were awarded costs. (Ibid.)

Significance

It polices the boundary of FEHA’s opposition clause. Dinslage is among the clearest California appellate statements that retaliation liability under section 12940, subdivision (h) attaches only to opposition aimed at employment discrimination — discrimination against employees or applicants — and not to public-interest advocacy, however laudable. (Dinslage, supra, 5 Cal.App.5th at pp. 381, 383.) The opinion separates two things that plaintiffs frequently conflate: a sincere belief that an employer is acting badly toward a vulnerable group, and a reasonable belief that the employer is committing an unlawful employment practice. Only the latter is protected.

It imports the federal “public versus employees” distinction into California law. By marshaling Wimmer, Crowley, and Taneus, the court grounded a recurring fact pattern — employees who oppose how their employer treats clients, patients, students, or the community at large — squarely on the wrong side of the protected-activity line. (Dinslage, supra, 5 Cal.App.5th at p. 383.) The decision thus reaches well beyond disability advocacy: a hospital worker objecting to discriminatory treatment of patients, or a public employee objecting to bias against members of the public, will struggle to satisfy the opposition clause unless the challenged practice is itself an employment practice.

It reinforces the objective-reasonableness gatekeeper. The case operationalizes Yanowitz’s requirement that the employee’s belief be objectively reasonable, “‘measured against existing substantive law.’” (Dinslage, supra, 5 Cal.App.5th at p. 382.) Where no authority supports treating the opposed conduct as unlawful employment discrimination, the belief is unreasonable as a matter of law — a question courts can resolve on summary judgment. The holding’s limits are real, however: it does not address opposition that genuinely targets employment discrimination against the public-facing workforce, and it left intact Yanowitz’s protection for opposition to conduct later found lawful, so long as the employee’s belief was reasonable.

Key quotes

“We hold that Dinslage’s opposition to Department policies and practices he viewed as discriminating against disabled members of the general public is not protected activity because his opposition was not directed at an unlawful employment practice.” (Dinslage, supra, 5 Cal.App.5th at pp. 372–373.)

“That Dinslage opposed what he viewed as unwise or even improper actions by the Department is not enough to make his opposition a protected activity. … [T]o be protected, an employee’s actions ‘must oppose activity the employee reasonably believes constitutes unlawful discrimination.’” (Id. at pp. 382–383.)

“Dinslage has not shown the Department’s actions amounted to discrimination against disabled citizens, but even if they could be so construed, discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA.” (Id. at p. 383.)

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Practice pointer

Open questions

The unpublished age-discrimination analysis. The court resolved the age discrimination claim in part II of its Discussion, which it expressly declined to publish, so its reasoning on that claim is not citable; the published holding is confined to retaliation and the meaning of protected activity. (Dinslage, supra, 5 Cal.App.5th at pp. 372, 380.)

Opposition that does target the workforce. The court rested on the undisputed fact that Dinslage’s opposition “was not directed at the Department’s employment practices,” leaving open how the analysis would run where an employee opposes conduct he reasonably believes discriminates against employees or applicants — including, perhaps, public-facing employees affected by a program change. (Dinslage, supra, 5 Cal.App.5th at pp. 383–384.)

The car show, on a developed record. Because Dinslage “ma[de] no effort to explain how opposition to the car show’s relocation might be construed as opposition to a prohibited employment practice,” the court disregarded that theory rather than resolving on the merits whether any version of it could qualify — leaving the point untested on a properly briefed record. (Dinslage, supra, 5 Cal.App.5th at p. 384.)