Deasey v. Bd. of Trustees of the Cal. State U. CA4/1

Filed 11/4/26 Deasey v. Bd. of Trustees of the Cal. State U. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA SHANNON LEONARD DEASEY, D088031 Plaintiff and Appellant, v. (Super. Ct. No. CIVSB2203927) BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Bernardino County, Nicole Quintana Winter, Judge. Affirmed. Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly, and Julian Bellenghi, for Plaintiff and Appellant. Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney General, Alice Quinton and Rebecca M. O’Grady, Deputy Attorneys General, for Defendant and Respondent. Shannon Leonard Deasey filed a complaint against the Board of Trustees of the California State University, San Bernardino (the University) after it terminated his employment as a campus police officer, alleging race discrimination and failure to prevent discrimination in violation of California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.). The superior court granted the University’s motion for summary judgment. On appeal, Deasey argues triable issues of fact remain as to both causes of action. In particular, Deasey contends ample evidence, including the decision by the State Personnel Board (SPB) to reinstate his employment, suggests his discharge was motivated by race and that the University’s purportedly nondiscriminatory reasons for discharging him are a pretext for discrimination. We disagree and affirm the judgment. I. A. The University hired Deasey in March 2019. Prior to that, he had worked as a deputy sheriff with the San Bernardino Sheriff’s Department for about 16 years. In August 2020, Deasey, who is White, responded to a reported burglary of computer equipment at the student union. University administrator Anthony Roberson, who is Black, showed Deasey the surveillance footage and the locations shown in the footage. Before leaving, Deasey asked Roberson for his business card and date of birth, which caught Roberson off guard. Deasey used Roberson’s name and birth date to run a full search in the California Law Enforcement Telecommunications System (CLETS) to obtain Roberson’s driver’s license and address information for his investigation report. He said the Sheriff’s Department trained him to run a full CLETS 2 search on anyone involved in an investigation, and the University did not instruct him otherwise. The CLETS search revealed Roberson had an outstanding misdemeanor traffic warrant from 2005, which listed a different birth date than Roberson’s. Deasey called the San Bernardino County Sheriff’s Department and confirmed the warrant was active. After informing his supervisor of his plans, Deasey called Roberson to let him know about the warrant so he could take care of it before he got arrested during a traffic stop “‘for something that is so trivial.’” He said Roberson thought the warrant issue had been cleared up a long time ago and thanked him. Roberson “was taken aback to learn that [Deasey] ran [his] personal information as though [he] was a suspect.” He subsequently filed a citizen’s complaint against Deasey, stating that, although he was grateful Deasey informed him of the situation, he did not think it was standard procedure since he had never been asked for his date of birth when reporting issues in the past. The University hired an outside entity, the OIR Group, to investigate the complaint. The OIR Group prepared a report and determined Deasey’s use of CLETS “was not consistent with the ‘right to know’ and ‘need to know’ philosophy of the [CLETS] database.” Deasey could have used less intrusive databases to obtain Roberson’s contact information. Although other officers had run CLETS searches on reporting parties, the University Police Department could provide better direction as to when to use (or not use) CLETS. The OIR Group nonetheless sustained allegations that Deasey violated University policy and two of the University Police Department’s canons of ethics by inappropriately accessing and disseminating CLETS 3 information. It did not sustain allegations that Deasey engaged in bias-based policing. Following his review of the OIR Group report, University Vice President Douglas Freer sent Deasey a notice of pending disciplinary action for running the CLETS search and disclosing the warrant information to Roberson, which led Roberson to believe Deasey treated him differently due to his race. Freer expressed to University President Tomas Morales his concern that the University could lose its CLETS privileges. Deasey requested a hearing pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194. The hearing officer recommended revoking the discipline, concluding Deasey had both a “right to know” and a “need to know,” as required to run a CLETS search, and was “well[-]intended” when he let Roberson know about the warrant. The Skelly officer acknowledged the “climate regarding law enforcement” at the time of the investigation and opined that the University Police Department’s management should have notified Roberson and explained why the search was run. Despite the Skelly officer’s findings, the University nonetheless determined termination was appropriate and Freer’s replacement as Vice President, Samuel Sudakar, issued a notice of disciplinary action in August 2021. The notice referenced Roberson’s comments that (1) “[h]e never expected something like this to happen to him at work with a police officer that knew him,” and (2) “[i]t was concerning to [him] especially in the times we are in now as far as the nation.” The University concluded Deasey’s actions constituted unprofessional conduct and a failure and refusal to perform the normal and reasonable duties of his position in violation of Education Code section 89535, subdivisions (b) and (f). 4  Deasey appealed his discharge to the SPB. Like the Skelly officer, the SPB found no CLETS violation. It also concluded Deasey did not act inappropriately in notifying Roberson of the warrant because it was Deasey’s duty to resolve an outstanding warrant. It determined Deasey had a “right to know” and a “need to know” under the CLETS Manual and indicated the University Police Department had no additional CLETS policies or procedures at the time. But the SPB decided Deasey violated Education Code section 89535(b) and (f) by failing to fully explain to Roberson why he ran him through CLETS. As a result, the SPB reinstated Deasey with back pay and benefits and modified his dismissal to a letter of reprimand. B. In response to Deasey’s complaint alleging race discrimination and failure to prevent discrimination, the University argued in its summary judgment motion that Deasey could not establish he was a member of a protected class or circumstances suggesting a discriminatory motive. It also asserted Roberson’s citizen’s complaint, the OIR Group’s report, and President Morales’ concern that the University could lose its CLETS privileges all provided evidence of a legitimate, non-discriminatory reason for Deasey’s termination. And, although the SPB modified Deasey’s punishment, the University argued the SPB’s finding that he violated the Education Code provided further non-discriminatory justification for the University’s disciplinary decision. Finally, the University asserted the SPB’s finding “that disciplinary action [against Deasey] was appropriate because Deasey’s conduct was unprofessional and constituted a failure to perform the reasonable duties of a police officer” is binding in this litigation and collaterally estopped Deasey from showing the University’s conduct was a pretext for discrimination. If the court agreed Deasey’s discrimination claim 5 was without merit, the University maintained his cause of action for failure to prevent discrimination also must fail. In his opposition, Deasey highlighted that the events occurred “during the summer of 2020 in the wake of the George Floyd protests aimed at misconduct against the Black community by [W]hite police officers.” He also asserted the notice of pending disciplinary action was expressly race-based in claiming his conduct “‘creat[ed] the appearance that [he] w[as] treating Roberson differently, which Roberson believed was due to his race.’” Because the final notice of disciplinary action also included this language—even though the OIR Group concluded Deasey’s actions were not racially biased— Deasey argued the notice “show[ed] the CLETS-based findings [were] a pretext to terminate Deasey because of a complaint by a Black person solely due to Deasey’s [W]hite race.” He further noted FEHA protects all races and pointed to his own testimony that he was treated differently because he was alleged to be a racist and biased White officer. As to discriminatory motive and pretext, Deasey argued having University counsel conduct the investigation through its retained consultant, where it could control the witnesses to prevent the OIR Group from considering testimony absolving Deasey, showed improper motive. This included testimony from the University Police Department’s lead dispatcher that Deasey did not violate CLETS requirements and Lieutenant Joseph Fleming’s concurrence, as well as Fleming’s testimony that the administration rushed to judgment and terminated Deasey to satisfy Roberson and avoid protests by Black students and faculty. Finally, Deasey maintained collateral estoppel did not require a finding that his termination was justified because the SPB found he should not have been terminated. To the extent the University argued Deasey raised race 6 discrimination before the SPB, Deasey asserted this issue was never before the SPB because it had no authority to award him damages. And because triable issues of fact remained as to his race discrimination claim, Deasey argued the motion should also be denied as to his second cause of action. The University responded that Deasey provided no supporting evidence for his speculation as to the University’s “‘real motives.’” To the extent the notice of disciplinary action and SPB findings mentioned race, the University noted (1) it was Roberson’s race, not Deasey’s, and (2) although Deasey understood he was fired for being a “‘biased police officer[,]’” FEHA does not protect against perceptions of being biased or racist. The court granted the University’s motion. Although it acknowledged FEHA does not exclude White males as a protected class, the court determined Deasey had not shown discriminatory motive because two of the three decisionmakers—Sudhakar and Morales—did not know or speak to Deasey before his dismissal. And even if the third, Freer, believed Deasey to be “racist” and “biased,” that did not demonstrate Freer discriminated against Deasey based on his race. The court further concluded Deasey had not presented any evidence that the University’s decision to terminate him for violating the Education Code was a pretext for discrimination. Even if it considered Deasey’s argument that the University’s real motive was “to avoid potential protests from [B]lack students and faculty during a time when George Floyd protests were already prevalent[,]” the court noted the rational inference would be that the University terminated Deasey to appease Roberson and the Black community, not because Deasey is White. Because the University did not provide argument that Deasey’s racial discrimination claim was actually litigated and necessarily decided in the 7 SPB appeal, the court determined the University failed to show collateral estoppel barred Deasey’s discrimination claim. And as “no action lies for failure to take necessary steps to prevent discrimination or harassment if no such conduct in fact occurs (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880),” the court concluded Deasey’s second cause of action fell with the first. II. Deasey contends the record contains ample evidence to (1) support a prima facie showing that the University’s decision to terminate him was motivated by his race and (2) demonstrate triable issues of pretext. We disagree. A. Relevant here, FEHA prohibits an employer from discriminating against an employee based on a protected class such as race. (Gov. Code, § 12940(a), (j)(1).) A defendant moving for summary judgment has the initial burden to present evidence sufficient to establish either (1) the plaintiff cannot prove at least one element of each cause of action as alleged in the complaint or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 853.) If the defendant does so, the burden shifts to the plaintiff to provide evidence demonstrating a triable issue of material fact. (§ 437c(p)(2); Aguilar, at p. 850.) Summary judgment is proper if no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (§ 437c(c).) When an employer seeks summary judgment on a FEHA claim, the employer must present admissible evidence demonstrating an element of the 8 employee’s prima facie case is lacking or that the employer had a legitimate, nondiscriminatory reason for any adverse employment action. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357.) If the employer meets its burden of showing a nondiscriminatory reason, the burden shifts to the employee to establish with substantial evidence that the stated nondiscriminatory reason 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.’” (Hicks, 160 Cal.App.4th at p. 1003.) But it is not enough to prove only that the employer lied about its reasons. (Guz, 24 Cal.4th at p. 360.) To demonstrate pretext, the employee must provide evidence showing the reason was both false “‘and that discrimination was the real reason.’” (Hicks, at p. 1003.) “On appeal, we examine the record de novo, viewing the evidence in the light most favorable to the plaintiff as the losing party and resolving any evidentiary doubts or ambiguities in [the plaintiff’s] favor.” (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 620.) The appellant has the burden of showing error by pointing to triable issues of fact supported by citation to the record and supporting authority. (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) We will affirm summary judgment “if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons.” (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.) B. Deasey contends triable issues remain as to his racial discrimination claim. We are not persuaded. 9  To prevail on a discrimination claim, a plaintiff generally must provide the following evidence: (1) the plaintiff “was a member of a protected class”; (2) the plaintiff “was qualified for the position [the plaintiff] sought or was performing competently in the position [the plaintiff] held”; (3) the plaintiff “suffered an adverse employment action, such as termination, demotion, or denial of an available job” and (4) “some other circumstance suggests discriminatory motive.” (Guz, 24 Cal.4th at p. 355.) The first three criteria are undisputed. But the University’s motion maintained that Deasey would be unable to demonstrate discriminatory motive and the University had provided a legitimate, nondiscriminatory reason for terminating Deasey. The University presented evidence that it terminated Deasey for unprofessional conduct and a failure or refusal to perform the normal and reasonable duties of his position in violation of Education Code section 89535(b) and (f) based on his interactions with Roberson during the burglary investigation. It specifically highlighted his misuse of CLETS and decision to notify Roberson about the outstanding arrest warrant. Legitimate reasons are those “facially unrelated to prohibited bias” and “‘honestly believed’” by the employer. (Guz, 24 Cal.4th at p. 358, italics omitted.) As the University points out, the third-party OIR Group sustained allegations that Deasey violated the Department of Justice policy on accessing CLETS and violated a University Police Department canon of ethics. Although the OIR Group did not find Deasey’s actions were “motivated by bias[,]” it concluded his “thoughtless actions” left Roberson “feeling targeted because of his race” and resulted in “a los[s] of trust and confidence in policing by those directly impacted by such actions.” President Morales also testified he read the Department of Justice guidelines governing CLETS usage and concluded Deasey’s use of CLETS was “inappropriate.” 10 Freer had expressed concern that the University Police Department could lose its CLETS privileges, and Morales agreed with the termination decision. Although Sudhakar understood that the matter had already been through “the disciplinary due process” and he was simply “agreeing with the decision that was made[,]” he read the conflicting Skelly report before deciding it was appropriate to sign the termination letter. He also subsequently familiarized himself with CLETS and thought Deasey “clearly violated CLETS.” Collectively, this evidence satisfies the University’s burden of providing a facially unbiased and honestly believed reason for terminating Deasey. The burden therefore shifted to Deasey to demonstrate this reason was pretextual. Deasey highlights the Skelly and SPB findings, the SPB’s quotation of the CLETS Manual, and testimony from Fleming and the University Police Department’s lead dispatcher as evidence he did not misuse CLETS such that this excuse was a pretextual justification. Although neither party provided the CLETS Manual, the cited portions and analysis adopted by the SPB appear to confirm Deasey had a “right to know” as a sworn peace officer using CLETS for official police business and a “need to know” because he used it to obtain information for his official police report. The San Bernardino Sheriff’s Department trained him to run a full CLETS search on all reporting parties, witnesses, and suspects when investigating a crime. And although the OIR Group’s report lists other databases from which Deasey could have obtained Roberson’s contact information, the University’s CLETS coordinator cited no evidence officers were trained or required to use these other databases first or instead. Nor have we found evidence in the record indicating the University provided additional training limiting its police officers’ use of CLETS in the university setting. Deasey also relied on the SPB finding that, as a peace officer, he 11 “had a duty to resolve Roberson’s outstanding warrant” and did not engage in unprofessional conduct or violate his duties in notifying Roberson privately so he could resolve it. That said, the law does not require the employer’s reasons to have been “wise or correct.” (Guz, 24 Cal.4th at p. 358.) And given the undisputed evidence showing Deasey was not absolved of all wrongdoing in his dealings with Roberson, the University’s decision to discipline Deasey was not entirely baseless. Although the SPB ultimately reduced Deasey’s punishment to a letter of reprimand based on his failure to sufficiently explain to Roberson why Deasey ran him through CLETS, it still found Deasey acted unprofessionally and violated his duties in dealing with Roberson. On the other hand, since the Skelly officer and the SPB agreed these actions did not justify dismissal, and Deasey otherwise had a clean record, a reasonable inference remains that the University’s stated reasons were not entirely true and it had some other motive in terminating Deasey. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 863 [“‘Logically, disbelief of an Employer’s stated reason for a termination gives rise to a compelling inference that the Employer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one.’”].) The Skelly officer recommended revoking the discipline altogether and concluded the University Police Department management should have handled notifying Roberson of the warrant. The SPB acknowledged the incident caused Roberson “real and unnecessary distress” but also found termination “neither just nor proper,” as it characterized Deasey’s failure to explain his actions to Roberson as a “minimal mistake in protocol.” 12  The question then is whether Deasey presented evidence that the University’s true motive for terminating him was because he is White as opposed to an unprotected reason. “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.” (Guz, 24 Cal.4th at p. 361.) “Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Ibid.) “Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Ibid.) As evidence of pretext, Deasey highlights Fleming’s testimony that University Police Chief Nina Jamsen told him Freer said he wanted Deasey removed immediately and that he should never police another campus. He also asserts the University caved to a threat by Roberson to instigate protests by the Black campus community if the University did not fire Deasey. This purported threat is based on Fleming’s testimony that the University’s attorney explained during a meeting that Roberson said if the University did not terminate Deasey, the Black community would be “up in arms and they might protest.” These statements do not aid Deasey’s claim. The first does not implicate Deasey’s race, and the second leads only to the inference that the University was concerned Deasey’s conduct caused Roberson to feel he was discriminated against based on his race and acted on that basis. Indeed, even Deasey himself testified he understood he was being disciplined for 13 being a biased and racist police officer. Thus, these statements do not provide admissible evidence that the University acted based on Deasey’s race. The evidence Deasey references on appeal relating to his own race is Fleming’s testimony about a discussion he had with Chief Jamsen. Fleming expressed to Jamsen that he did not think there was anything to substantiate the termination decision and asked if she could provide him “a direct fact” supporting the allegations. He said she could not but told him he “needed to understand the optics of this—and the fact that a [W]hite officer ran a [B]lack director for our department is an issue.” We decline to consider this evidence because Deasey did not reference Jamsen’s statement to Fleming in his opposition brief below, cite to this portion of Fleming’s deposition, or include this fact in his separate statement of material facts, as required. (See Code Civ. Proc., § 437c(b)(3); Cal. Rules of Court, rule 3.1350(f)(3).) We may “disregard any evidence not called to the trial court’s attention in the separate statement of one side or the other, except as necessary to provide nondispositive background, color, or continuity.” (Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828, 831.) Applying this standard is appropriate here because the omission deprived the University of a meaningful opportunity to respond or object to this testimony. Although a transcript of this portion of Fleming’s deposition was attached to Deasey’s counsel’s declaration below, where a party does not rely on a point in its opposition papers or separate statement, “[t]he trial court cannot be expected to address expressly every piece of evidence contained in a voluminous record, much less address evidentiary items on which a party has not relied to create a disputed issue of material fact.” (Eddins v. Redstone (2005) 134 Cal.App.4th 290, 318.) “[W]here evidence is not referenced, is hidden in 14 voluminous papers, and is not called to the attention of the court at all, a summary judgment should not be reversed on grounds the court should have considered such evidence.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Accordingly, we affirm the court’s decision to grant the University summary judgment on Deasey’s race discrimination claim. C. Because Deasey did not provide any additional argument as to his second cause of action, and “the statute does not create a stand-alone tort” (Thompson, 186 Cal.App.4th at p. 880), we affirm as to that claim as well. (See Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315, 1317 [the conduct must be actionable because “[i]t would be anomalous to provide a remedy for failure to prevent acts that are not ‘unlawful’ under the FEHA”].) 15  III. We affirm. The University is entitled to its costs on appeal. CASTILLO, J. WE CONCUR: BUCHANAN, Acting P. J. AMIN, J. 16