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Moreno v. County of San Joaquin2/4/2002
of misconduct is relevant. We disagree. What matters instead, is the nature of the misconduct. Using profanity in response to a supervisor's request is not trivial. Rather it is an act of hostility and insubordination, especially within a juvenile detention facility. Even if a hostile and insubordinate employee may grudgingly perform the requested tasks, the hostility and insubordination remain. Instead of looking at the mere passing of each event, we look at the substance of each event. The County was not required to ignore Moreno's profanity and insubordination just because he may have ultimately performed some of the requested tasks.
(4) The County failed to transfer Moreno to different duties or shifts, which would have eliminated his work problems without any detriment to the County.
Moreno fails to explain how this assertion establishes a triable issue of fact regarding the County's motive for his termination. As we explained above, Moreno engaged in misconduct, and the County's response was reasonable, even essential. Unless the failure to transfer Moreno can raise a triable issue of fact over whether the County's response to his acts of misconduct was a pretext for discriminatory termination, this assertion is irrelevant.
(5) Dr. Hargrave's second report proves the County was improperly motivated to terminate Moreno. The report suggests Moreno was seeking compensation for emotional distress caused by his supervisors at work. Therefore, the County terminated him in order to avoid paying for these expenses.
Dr. Hargrave's report concluded Moreno was unfit to work as a Group Counselor I. The report therefore supports the County's termination of Moreno based on good cause. The fact the report contains additional analysis of Moreno's state of mind does not change the doctor's final evaluation.
Each of Moreno's five factual allegations fails to establish the County lacked good cause in terminating him. Moreover, there is no substantial evidence the County's termination of Moreno was pretextual or was done with discriminatory animus.
III. Retaliation Claim
Moreno argues he was the victim of unlawful retaliation under Government Code section 12940, subdivision (h). He contends he filed complaints with management regarding sexual harassment and racial slurs and jokes. After these complaints were filed, the County was required to treat him on the same terms and conditions as other counselors. Moreno contends he was harassed and subjected to discrimination for having made these complaints. He further argues the County provoked his misconduct in order to provide a pretext for his dismissal. Moreno believes the County really terminated him in retaliation for his complaints.
To establish unlawful retaliation, a plaintiff must present evidence of four elements: (1) the employee engaged in a protected activity; (2) the employer thereafter subjected the employee to an adverse employment action; (3) there was a causal connection between the first two elements; and, (4) the employer's non-retaliatory explanation was mere pretext. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 367.)
Moreno argues the County lacked good cause for his termination because the County was really retaliating against him for having complained about unlawful practices at Juvenile Hall. Moreno again relies on the same five factual allegations discussed in part I to make his argument concerning retaliation. Our analysis, however, shows they do not establish a triable issue of material fact. They do not provide substantial evidence the County lacked good cause. There is no evidence the County antagonized Moreno in an
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