Filed 7/29/24 Rocha v. County of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DANIEL ROCHA,

Plaintiff and Appellant,

v.

COUNTY OF FRESNO,

Defendant and Respondent.

F084512

(Super. Ct. No. 20CECG01193)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. 

McGuire, Judge.

Kevin Gerard Little for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Jesse J. Maddox, and Morgan Johnson for Defendant 

and Respondent.

-ooOoo-
2.

Plaintiff and appellant Daniel Rocha is a former employee of the County of Fresno 

(County). County terminated Rocha’s employment after it determined Rocha had 

violated several County personnel rules. Thereafter, Rocha filed suit alleging County had 

violated the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 

et seq.) by (1) discriminating against him on the basis of his medical conditions and 

physical disability, (2) retaliating against him for making protected complaints pertaining 

to his medical conditions and physical disability, and (3) failing to prevent the alleged 

acts of discrimination and retaliation.

County moved for summary judgment or, alternatively, summary adjudication of 

the three causes of action in Rocha’s complaint. The trial court granted County’s motion 

for summary judgment and entered judgment in its favor. Rocha appeals.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Rocha was first hired by County in 2005 to work as a social worker in its 

Department of Social Services (DSS). While employed at DSS, Rocha developed two 

injuries for which he required workplace accommodations. Specifically, in 2009, he 

began experiencing carpal tunnel syndrome and, in 2016, he developed a bulging disc in 

his back. DSS accommodated Rocha’s medical conditions, in part, by changing his work 

assignments and reducing his typing and computer time.

According to Rocha, he received positive performance reviews while at DSS. 

However, given his physical limitations and the extensive work requirements of his 

position at DSS, Rocha decided to seek transfer to the Fresno County Library (County 

Library).

I. Rocha’s Employment with County Library

A. Rocha’s Early Complaints About County Library’s Business Manager

On November 7, 2016, Rocha transferred to County Library as a senior staff 

analyst. He was to be trained in his new position by his direct supervisor, Business 
3.

Manager Jeannie Christiansen. During his employment at County Library, Rocha 

developed a long list of grievances against Christiansen.

In June 2017, Rocha began keeping “contemporaneous notes” of incidents that 

occurred at County Library. In his declaration in opposition to County’s motion for 

summary judgment (opposition declaration), Rocha states that on June 2, 2017, 

Christiansen scolded and undermined him in front of other employees. His notes for that 

date indicate Christiansen had been on several long vacations and that Christiansen 

“mentioned baptism by fire,” which he felt was rude. Little additional detail is provided,

but Rocha concluded Christiansen had “belittled, and verbally assaulted [Rocha]” and 

“was undermining [Rocha’s] authority.”

In his opposition declaration, Rocha states that Christiansen belittled Rocha again 

during a training session on June 6, 2017. In his notes for that date, Rocha wrote, “I 

asked [Christiansen] to train me in her office because she tends to get aggressive in front 

of people to show off. This is belittling to me and undermines my authority with staff. 

She does this in front of my employees.” In over 40 entries dated June 2017 through 

August 2018, Rocha complains about other conduct and behavior of Christiansen that 

Rocha described as “threatening,” “bully[ing],” engaging in a “game of power,” 

“hostile,” “demanding,” “rude,” “sarcastic,” “moody,” and “condescending”—among 

other descriptors.

In his opposition declaration, Rocha states Christiansen effectively denied or 

impeded his leave requests by approving them on an unrealistic condition he finish 

multiple assignments, by waiting until the last minute to approve them, or by failing to 

give him “approved leave slips.” Rocha claims Christiansen used the approval of leave 

requests as a “form of discipline.”1

1 Rocha also claims Christiansen denied him FMLA leave. However, in the e-mail(s) 

Rocha refers to in support of this latter claim, Rocha admits he had not received FMLA 

paperwork from a doctor at the time the request was made.
4.

Rocha also claims Christiansen pitted his subordinates against him, for example, 

by telling staff that Rocha “wanted to discipline all of the employees” after Rocha had 

discussed Christiansen’s alleged failure to follow proper procedure in approving other 

employees’ leave requests with her.

Other complaints lodged by Rocha against Christiansen include, without 

limitation, her making a derogatory statement about his “gray hair”2 and refusing to allow 

him to park in a particular County Library parking lot even though he “was the only 

member of senior administration not allowed to park in [the] lot.”

Rocha believes the problems he was having with Christiansen began to worsen in 

November 2017, after he was asked to provide feedback on Christiansen’s performance 

as a supervisor. The request came from Christiansen’s direct supervisor, County 

Librarian Kelley Landano, who was performing a “360” degree review of Christiansen’s 

job performance. Rocha complied with the request. Although Rocha provided several 

positive comments to Landano concerning Christiansen’s management style, he was also 

very critical of Christiansen’s performance as a manager. Rocha claims that, after 

Christiansen received her performance review, she avoided speaking to him for weeks 

and, when she did speak to him, she was terse.

In January 2018, Rocha was given supervisory authority over a new hire, Rachel 

Acosta, during her probationary period. At Christiansen’s direction, Rocha put Acosta on 

a performance improvement plan and provided her with “weekly counseling memos to 

help improve her work.” According to Rocha, counseling memoranda are not direct 

disciplinary actions. Notwithstanding, Rocha contends Acosta “became very defensive 

toward [him],” which led him to arrive at the “understanding” Acosta was told by 

Christiansen that the performance improvement plan was his decision and not 

Christiansen’s.

2 Rocha has not alleged a cause of action for age discrimination.
5.

Then, in May 2018, Rocha gave a counseling memorandum to Acosta, which led 

Acosta to meet with Christiansen. Rocha contends Acosta reported to Christiansen things 

Rocha “was allegedly stating about” Christiansen, and this led Christiansen to request a 

meeting with Associate County Librarian Raman Bath3 and Cindy Freeland, a human 

resources (HR) representative. In a declaration in support of County’s motion for 

summary judgment, Bath acknowledged meeting with Christiansen and Acosta and was 

told Rocha was “misrepresenting to his subordinates ... Christiansen’s communications 

to him.” Bath started a preliminary investigation but then put it on hold because he 

thought a “cooling off period” might resolve the issues. (He would later receive 

additional information from Acosta that would cause him to resume and complete his 

investigation.)

Soon after May 30, 2018, Rocha took time off for his back injury. He states he 

requested Christiansen keep the information confidential but claims Christiansen violated 

this request by writing his return date as “Back” by a certain date, rather than “Return” by 

a certain date, on the whiteboard where employee attendance statuses were recorded.

B. Rocha Files a Workers’ Compensation Claim

On June 13, 2018, Rocha filed a workers’ compensation claim relating to his 

carpal tunnel syndrome. In his opposition declaration and accompanying notes for that 

same date, Rocha claims Christiansen sent an e-mail to his staff that belittled him and 

undermined his authority. Rocha does not state what was in the e-mail and provides no 

citation to any e-mail in the record on appeal. He states in his notes for that date entry, “I 

am beginning to think that [Christiansen] has been retaliating against me due to the 360

[degree review] on her. [Christiansen] was very unsupportive today.” (Italics added.)

3 Raman Bath has held several positions since Rocha first started at County Library. Bath 

served as associate county librarian from November 2017 to February 2019. Thereafter, he 

served as interim county librarian for approximately five months before succeeding to the 

position of county librarian in July 2019.
6.

On June 14, 2018, Christiansen gave Rocha a counseling memorandum expressing 

her concern that Rocha was providing insufficient notice for some of his leave requests. 

Included with the memorandum was a copy of County Library’s policies concerning 

leave for medical appointments and other circumstances.

After Rocha filed his workers’ compensation claim, County performed an 

ergonomic evaluation of his workspace. The resulting report indicated Rocha was not 

previously under any work restrictions. Several adjustments to his workstation were 

recommended, including, without limitation, an option to have a sit-stand desk and an 

ambidextrous mouse that could be operated by either hand. In addition, Rocha was 

advised to “[c]ontinue stretching and moving around throughout the day” and “[t]ake 

breaks and microbreaks.”

Rocha claims Christiansen “retaliated against [him] due to [his] injury” by, among 

other things: giving him more assignments; requiring he handwrite his work for others to 

type, which he claims let everyone know of his medical issues; giving him counseling 

memoranda because he exceeded his computer time restrictions; monitoring his computer 

usage to ensure he was adhering to his typing restrictions; and including in his final 

performance review, a comment that he was failing to adequately supervise and train his 

employees, which he contends was not practical because his assignments took him “far 

away from [his] staff for an extended period of time with no access to them or their 

work.”

In addition, Rocha states he was counseled by Christiansen for not following 

proper procedures in ordering an ambidextrous mouse to meet his workers’ compensation 

restrictions (although he was allowed to keep the mouse) and for having his monitors too 

high when his desk was in the standing position.

C. Rocha Files an HR Complaint

On August 8, 2018, Rocha filed an internal complaint against Christiansen

(HR complaint). He alleged Christiansen had been belittling and degrading him for over 
7.

a year and a half, overloading him with work, and sending him “negative and/or hostile 

e[-]mails” on a daily basis. In his HR complaint, Rocha recounted many of the issues 

discussed ante. He suggested he was being treated this way because he was male.

4

Rocha also complained he felt threatened and intimidated by Christiansen. He 

accused her of being rude to him in front of employees by shouting, “Just do it,” when he 

questioned one of her directives, criticizing his job performance and reprimanding him in 

front of other employees, pitting his staff against him, and blaming him for work that she 

should have done herself.

Rocha alleged Christiansen was “trying to sabotage” him and stated, “There are 

too many unethical things to list here about what [she] has done within [County] Library 

to employees. Her main course of action is to withdraw genuine support, overload 

employees and not train them, blame employees, and then run down the list of negative 

actions towards employees.” The HR complaint reads, in part, “other staff have 

complained about the way they were treated by [her] in meetings. He alleged other 

employees have left because of her behavior. He reiterated his claim that Christiansen 

used the approval of leave requests as a “form of discipline.”

D. Investigation of Rocha’s Allegations by Outside Counsel

On August 29, 2018, County hired an outside investigator, Attorney Amy 

Oppenheimer, to investigate matters raised by Rocha in his HR complaint. Oppenheimer 

interviewed nine witnesses, including Rocha, Christiansen, Bath, Freeland, Acosta, and 

Rocha’s other supervisees. Oppenheimer also reviewed a number of documents,

including Rocha’s seven-page complaint against Christiansen, Rocha’s notes concerning 

interactions with Christiansen, Christiansen’s notes concerning interactions with Rocha, 

and numerous e-mails at issue. Oppenheimer did not sustain any of Rocha’s accusations 

against Christiansen.

4 Rocha has not alleged a cause of action for discrimination on the basis of sex or gender.
8.

E. Bath Receives New Information that Causes Him to Resume His 

Investigation of Complaints against Rocha

On November 15, 2018, Acosta provided Bath and Freeland with additional 

information, which prompted Bath to resume his previous investigation of complaints 

against Rocha. Bath conducted 22 interviews of eight individuals, including Rocha, 

Christiansen, Acosta, and Rocha’s other supervisees.

F. Rocha’s Final Job Performance Review

On January 14, 2019, Rocha received his employee performance evaluation for the 

period of November 7, 2017, to December 11, 2018 (2018 performance evaluation). The 

evaluation was 20 pages in length. In the eight general skills categories, Rocha received 

four “Unsatisfactory” ratings, three “Improvement Needed” ratings, and one 

“Satisfactory” rating. In the seven supervisory ability categories, he received two 

“Unsatisfactory” ratings, two “Improvement Needed” ratings, and three “Satisfactory” 

ratings.5 Rocha received an overall rating of “Improvement Needed” in his 2018 

performance evaluation.

G. Investigative Report by Bath, Skelly6 Review, and Termination of Rocha’s 

Employment

On February 7, 2019, Bath issued an investigative report concerning allegations 

Rocha “inappropriately ... delegated complex tasks and assignments to subordinate staff” 

and had “done so willfully”; was “insubordinate as it relate[d] to instructions and 

5

In his 2018 performance evaluation, Rocha was rated in eight general skills categories as 

follows: (a) “Unsatisfactory” in “Responsiveness,” “Rules, Regulations,” “Interpersonal Skills,” 

and “Professional Skills”; (b) “Improvement Needed” in “Quantity of Output,” “Quality of 

Output,” and “Technical Skills”; and (c) “Satisfactory” in “Attendance.”

Rocha was further rated in seven different supervisory ability categories as follows: 

(a) “Unsatisfactory” in “Leadership” and “Communication”; (b) “Improvement Needed” in 

“Planning and Organization” and “Decision Making”; and (c) “Satisfactory” in “Safety,” 

“Affirmative Action,” and “Attendance.”

6 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly).
9.

direction from [Christiansen]”; and had “made unprofessional, highly charged and 

negative comments about [Christiansen] in the presence of [Rocha’s] subordinate staff. 

Because Rocha denied the allegation regarding negative comments made toward 

Christiansen, Bath chose to “include[] dishonesty on the list of misconduct and the final 

report.”

In his investigative report, Bath was unable to “come to the clear conclusion that 

[Rocha] ha[d] been insubordinate” by inappropriately delegating work to subordinates. 

He sustained the allegation Rocha had made negative and unprofessional comments 

about Christiansen to subordinates. In that regard, he determined Rocha’s conduct was 

“unprofessional and has had a detrimental impact on the morale and productivity of staff

... as well as the potential to undermine the authority of [Christiansen] as well as Library 

Administration as a whole.”7 Bath also sustained the allegation of dishonesty, concluding 

that “there is no doubt that [Rocha] has readily lied about his actions and the 

inappropriate remarks he has made regarding [Christiansen].” According to Bath, several 

witnesses had corroborated Rocha’s remarks, and Rocha’s “own rebuttal/statement 

contains examples of how he finds [Christiansen] to be untrustworthy, incompetent, and 

otherwise a poor manager.” He determined those witnesses were credible and that the 

allegation was supported by a preponderance of evidence.

On February 21, 2019, County issued Rocha a notice of intended order for 

disciplinary action (notice of intended action) that recommended Rocha’s employment 

7 Witnesses interviewed for Bath’s investigative report reported that Rocha made 

comments in reference to Christiansen such as: (1) she is “a ‘bitch or bitchy’ ”; (2) she “is 

‘really hard to work with’ ” and “can be ‘bitchy and a hard ass’ ”; (3) she “ ‘is out to get’ ” him 

and Acosta; (4) “you have to be careful around [Christiansen]”; (5) she cannot be trusted and 

“ ‘is out to get people’ ”; (6) “ ‘be careful what you say around her’ and that she ‘doesn’t 

understand what she is doing’ ”; (7) she “ ‘can go off on you so be careful’ ”; (8) she is “ ‘mean, 

she is unfair, and she will find ways to put you down’ ”; and (9) she is “ ‘mean’ and can be 

‘difficult to work with.’ ”
10.

with County be terminated. In lieu of a Skelly conference,8 Rocha’s attorney of record 

provided a written response to the notice of intended action.

Paul Nerland, who, at the time, was director of HR for County, served as a Skelly

officer for County and conducted a Skelly review in connection with the notice of 

intended action. In his declaration in support of County’s motion for summary judgment, 

Nerland stated he found no “evidence suggesting [Rocha’s] proposed termination was 

retaliatory or biased” and determined “Rocha had been insubordinate, and then was 

dishonest about his conduct when questioned” by Bath. He added, “The Senior Staff 

Analyst position is a senior management position that requires a higher latitude of 

judgment and a high degree of maturity, integrity and good judgment. I felt that, based 

on the information provided to me, ... Rocha lacked those qualities; therefore, I upheld 

the proposed termination.”

On March 8, 2019, Bath issued an order for disciplinary action against Rocha and 

advised Rocha that he would be “dismissed from [his] County position effective 5[:00] 

p.m., March 8, 2019.” (Underlining omitted.)

II. Rocha’s Superior Court Complaint

On May 4, 2020, Rocha filed suit against County. His three causes of action are 

summarized below.

In his first cause of action, Rocha alleged County engaged in medical/disability 

discrimination against him in violation of FEHA. He alleged his physical conditions 

qualified as medical conditions and disabilities under FEHA because they limited “his 

performance of one or more major life activities,” a fact known to County; he was 

8

In Skelly, supra, 15 Cal.3d 194, the California Supreme Court “announced the minimum 

requirements for a pretermination hearing for a public employee: ‘notice of the proposed action, 

the reasons therefor, a copy of the charges and materials upon which the action is based, and the 

right to respond, either orally or in writing, to the authority initially imposing discipline.’ ” 

(3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 312, p. 402, citing 

Skelly, at p. 215.)
11.

subjected to harassment and adverse personnel actions including termination by County, 

which treatment was motivated by his medical conditions and disabilities; he was 

“performing his duties well and could have continued to perform them well had he 

received timely and reasonable accommodations”; and, as a result, he suffered damages, 

which included lost wages and benefits, emotional injury, and physical injury.

In his second cause of action, Rocha alleged he was retaliated against by County 

in violation of FEHA for making “qualifying complaints” about being denied 

accommodations for his medical conditions and disabilities and about suffering reprisals 

from County for those complaints. He alleged this led to further harassment and adverse 

personnel actions by County and its employees.

In his third and final cause of action, Rocha alleged County violated FEHA by 

failing to “take all reasonable steps to prevent” the discrimination and retaliation he 

experienced.

III. Proceedings

On July 29, 2021, County moved for summary judgment against Rocha or, in the 

alternative, summary adjudication of all causes of action therein. On February 10 and 14, 

2022, Rocha filed papers in opposition to County’s motion.9 On February 18, 2022, 

County filed its reply papers.

The trial court issued its tentative ruling to grant County’s motion for summary 

judgment on June 7, 2022. County’s motion was heard the following day, June 8, 2022, 

after which the court took the matter under advisement. On June 9, 2022, the court 

adopted its tentative ruling without modification.

9 Rocha’s declaration in opposition to County’s motion was referenced in his February 10, 

2022 attorney’s statement of facts in opposition to County’s motion but, for reasons not apparent 

from the record, his declaration was not filed with the trial court until May 17, 2022.
12.

Rocha filed his notice of appeal on June 21, 2022, before judgment had actually 

been entered. Over one year later, on July 21, 2023, the trial court entered judgment in 

favor of County and against Rocha.

Additional factual information is discussed below as necessary.

DISCUSSION

I. Appealability

Rocha filed his notice of appeal shortly after the trial court granted County’s 

motion for summary judgment but a year before the trial court actually entered judgment 

in favor of County. “An order granting summary judgment is not an appealable order.” 

(Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288; accord, 

Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1032.) “However, 

when the order is followed by a judgment, the appellate court may deem the premature 

notice of appeal to have been filed after the entry of judgment.” (Mukthar, at p. 288;

accord, Cal. Rules of Court, rule 8.104(d)(2).) Consequently, we will treat the notice of 

appeal as having been from a judgment after an order granting a summary judgment 

motion, which is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(1).)10

II. Standard of Review

“On appeal after a motion for summary judgment has been granted, we review the 

record de novo, considering all the evidence set forth in the moving and opposition 

papers except that to which objections have been made and sustained.” (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) “ ‘ “[A]lthough we use a de novo 

standard of review here, we do not transform into a trial court.” ’ [Citation.] We 

approach a summary judgment appeal, as with any appeal, with the presumption the 

appealed judgment is correct. [Citation.] Therefore, ‘ “ ‘[o]n review of a summary 

judgment, the appellant has the burden of showing error, even if he did not bear the 

10 Undesignated statutory references are to the Code of Civil Procedure.
13.

burden in the trial court.’ ” ’ ” (Meridian Financial Services, Inc. v. Phan (2021) 

67 Cal.App.5th 657, 684, italics & second & third bracketed insertions added.)

“ ‘ “Generally, the rules relating to the scope of appellate review apply to appellate 

review of summary judgments.” ’ [Citation.] Because it is the Appellants’ burden to 

affirmatively demonstrate error, they must provide citations to the appellate record 

directing the court to the evidence supporting each factual assertion.” (Meridian 

Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 684.) “It is the duty of a 

party to support the arguments in its briefs by appropriate reference to the record, which 

includes providing exact page citations.” (Bernard v. Hartford Fire Ins. Co. (1991) 

226 Cal.App.3d 1203, 1205.) The failure to present argument, cite legal authority, or 

provide adequate record citations will result in a waiver or forfeiture of the issue. 

(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez); Talley v. 

County of Fresno (2020) 51 Cal.App.5th 1060, 1091 [failure to make substantive 

argument in challenge to trial court’s dismissal of claim on summary judgment results in

a waiver of the claim].)

III. Rocha Has Failed to Provide Sufficient Record Citations on Appeal

With only sparse exception, Rocha has failed to cite to any of the actual evidence 

he submitted in opposition to County’s motion in his appellate briefs. Instead, he cites to 

a document titled “Plaintiff’s Statement of Fact in Support of Opposition to Motion for 

Summary Judgment or [in] the Alternative Summary Adjudication” (boldface & some

capitalization omitted) (hereafter, attorney’s statement of fact), which is signed only by 

Rocha’s counsel and has no declaratory paragraph attesting, under penalty of perjury, to 

the truth and correctness of the information contained therein. Similarly, Rocha does not 

cite to any of the undisputed material facts alleged in County’s motion.

In addition, the exhibits referenced in the attorney’s statement of fact are identified 

by incorrect exhibit numbers and vague verbal descriptions. Rocha’s opposition 

declaration appears to be identical to the attorney’s statement of fact, but it suffers from 
14.

the same deficiencies when it comes to identifying referenced exhibits. Rocha relies on 

exhibits at various points in his opposition brief but provides no citations to page 

numbers for the exhibits or for any specific reference therein.

Aside from the occasional citation to pleadings, motion paperwork, or court 

orders, Rocha fails to provide any correct citations for the multitude of exhibits he 

references in his appellate briefing, making it difficult and arguably impossible, in some 

circumstances, to identify with certainty which exhibits Rocha is intending to reference. 

A similar deficiency at the trial court level led County’s counsel to state, “[T]he exhibits 

to [Rocha’s] declarations are not remotely in the order he represented; rather, it appears 

he shuffled his exhibits like one might shuffle a deck of playing cards.”

“[D]e novo review does not obligate [an appellate court] to cull the record for the 

benefit of the appellant in order to attempt to uncover the requisite triable issues. [I]t is 

the appellant’s responsibility ... to point out the triable issues the appellant claims are 

present by citation to the record and any supporting authority.” (Lewis v. County of 

Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on other grounds in Kaufman 

& Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 CalApp.4th 26, 

41–42; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [“ ‘The appellate court is 

not required to search the record on its own seeking error.’ ”]; Duarte v. Chino 

Community Hospital (1999) 72 Cal.App.4th 849, 856 [“If a party fails to support an 

argument with the necessary citations to the record, that portion of the brief may be 

stricken and the argument deemed to have been waived.”]; Bernard v. Hartford Fire Ins.

Co., supra, 226 Cal.App.3d at p. 1205 [“It is the duty of a party to support the arguments 

in its briefs by appropriate reference to the record, which includes providing exact page 

citations.”].) Moreover, “ ‘[w]e are not obliged to make other arguments for [appellant] 

[citation], nor are we obliged to speculate about which issues counsel intend to raise.’ ” 

(Hernandez, supra, 37 Cal.App.5th at p. 277, first bracketed insertion added.)
15.

We deem Rocha’s near complete failure to provide citations to evidence and 

exhibits as a forfeiture of his claims on appeal. Notwithstanding, we address the merits 

of Rocha’s forfeited claims below.

IV. Summary Judgment Procedure, Generally

A defendant “may move for summary judgment in an action or proceeding if it is 

contended that the action has no merit.” (§ 437c, subd. (a)(1).) “The motion for 

summary judgment shall be granted if all the papers submitted show that there is no 

triable issue as to any material fact and that the moving party is entitled to a judgment as 

a matter of law.” (§ 437c, subd. (c).) In determining whether to grant a motion for 

summary judgment, a court will view evidence submitted “in the light most favorable to

the opposing party and draw all reasonable inferences in favor of that party.” (Weiss v. 

People ex rel. Dept. of Transportation (2020) 9 Cal.5th 840, 864, citing § 437c, 

subd. (c).)

“[I]n moving for summary judgment, a ‘defendant ... has met’ his ‘burden of 

showing that a cause of action has no merit if’ he ‘has shown that one or more elements 

of the cause of action ... cannot be established, or that there is a complete defense to that 

cause of action. Once the defendant ... has met that burden, the burden shifts to the 

plaintiff ... to show that a triable issue of one or more material facts exists as to that 

cause of action or a defense thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 849 (Aguilar), quoting § 437c, subd. (o)(2).) “There is a triable issue of material 

fact if, and only if, the evidence would allow a reasonable trier of fact to find the 

underlying fact in favor of the party opposing the motion in accordance with the 

applicable standard of proof.” (Aguilar, at p. 850.)

V. Summary Judgment in the Context of FEHA Discrimination Claims

Summary judgment procedure in the context of FEHA discrimination claims has 

its own special characteristics. “... California has adopted the three-stage burden-shifting 

test[, the McDonnell Douglas test,] established by the United States Supreme Court for 
16.

trying claims of discrimination ... based on a theory of disparate treatment.” (Guz, 

supra, 24 Cal.4th at p. 354, citing, among others, McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792.) The test, when applied in the context of a summary judgment 

motion, differs from its application at trial. (Wills v. Superior Court (2011) 

195 Cal.App.4th 143, 160).

“At trial, the McDonnell Douglas test places on the plaintiff the initial burden to 

establish a prima facie case of discrimination.” (Guz, supra, 24 Cal.4th at p. 354, first 

italics added.) To do so, the plaintiff “must at least show ‘ “actions taken by the 

employer from which one can infer, if such actions remain unexplained, that it is more 

likely than not that such actions were ‘based on a [prohibited] discriminatory 

criterion ....’ ” ’ ” (Id. at p. 355.) Once the plaintiff meets this initial burden, “a 

[rebuttable] presumption of discrimination arises.” (Ibid.) “[T]he burden [then] shifts to 

the employer to rebut the presumption by producing admissible evidence, sufficient to 

‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its 

action was taken for a legitimate, nondiscriminatory reason.” (Id. at pp. 355–356, first & 

second bracketed insertions added.) “If the employer sustains this burden, the 

presumption of discrimination disappears.” (Id. at p. 356.)

If the employer has successfully rebutted the presumption of discrimination, the 

plaintiff has the “opportunity to attack the employer’s proffered reasons as pretexts for 

discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In 

an appropriate case, evidence of dishonest reasons, considered together with the elements 

of the prima facie case, may permit a finding of prohibited bias. [Citations.] The 

ultimate burden of persuasion on the issue of actual discrimination remains with the 

plaintiff.” (Guz, supra, 24 Cal.4th at p. 356.)

In contrast, a defendant employer seeking summary judgment in connection with a 

plaintiff employee’s FEHA discrimination claim has “the initial burden to either 

(1) negate an essential element of [the plaintiff’s] prima facie case [citation] or 
17.

(2) establish a legitimate, nondiscriminatory reason” for taking the challenged adverse 

employment action. (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 160; see 

Aguilar, supra, 25 Cal.4th at p. 850 [“from commencement to conclusion, the party 

moving for summary judgment bears the burden of persuasion that there is no triable 

issue of material fact and that he is entitled to judgment as a matter of law”].)

“If the employer presents admissible evidence either that one or more of plaintiff’s 

prima facie elements is lacking, or that the adverse employment action was based on 

legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment 

unless the plaintiff produces admissible evidence which raises a triable issue of fact 

material to the defendant’s showing.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th

327, 344 (Arteaga).) Again, in that instance, the evidence to rebut the moving parties’ 

evidence must be sufficient to “allow a reasonable trier of fact to find the underlying fact 

in favor of” the plaintiff. (Aguilar, supra, 25 Cal.4th at p. 850.)

VI. Analysis

County moved for summary judgment or, alternatively, summary adjudication of 

each of Rocha’s three causes of action.

A. Elements of Rocha’s Causes of Action

Rocha’s first cause of action is for discrimination in the workplace based on a 

physical disability or medical condition. To make out a prima facie case of 

discrimination, Rocha must show “(1) he was a member of a protected class, (2) he was 

qualified for the position he sought or was performing competently in the position he 

held, (3) he suffered an adverse employment action, such as termination, demotion, or 

denial of an available job, and (4) some other circumstance suggests discriminatory 

motive.” (Guz, supra, 24 Cal.4th at p. 355.)

Rocha’s second cause of action is for retaliation in the workplace after he 

allegedly made “qualifying complaints against his lack of medical/disability 

accommodation, and also about being subject to reprisal for his complaints.” To make 
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out a prima facie case of retaliation by his employer, Rocha must prove (1) he “ ‘engaged 

in a protected activity,’ ” (2) his “ ‘employer subjected him to adverse employment 

action,’ ” and (3) “ ‘there is a causal link between the protected activity and the 

employer’s action.’ ” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 

814.)

To prevail on a claim his employer failed to prevent discrimination or retaliation, 

Rocha must prove (1) he was subject to discrimination or retaliation by his employer,

(2) the employer “failed to take all reasonable steps to prevent discrimination, ... or 

retaliation,” and (3) as a result of the employer’s failure, Rocha “suffer[ed] injury, 

damage, loss or harm.” (Lelaind v. City and County of San Francisco (N.D.Cal. 2008) 

576 F.Supp.2d 1079, 1103; accord, CACI No. 2527.)

B. County’s Grounds for Moving for Summary Judgment/Summary 

Adjudication

County challenged Rocha’s first cause of action for discrimination under FEHA on 

grounds Rocha could not “establish he was competently performing [in] his position,” 

“prove a discriminatory motive,” or show that any “allegedly harassing comments or 

conduct toward him [were] based on his alleged disabilities or complaints.”

County challenged Rocha’s second cause of action for retaliation under FEHA on 

grounds his e-mail sent to County Librarian Landano to provide feedback as part of the 

360-degree review of Christiansen’s performance as a manager was not a FEHAprotected complaint and that Rocha could not “show a nexus between his protected 

activities and any adverse action taken by ... County.”

In addition, County contended it “had legitimate, non-discriminatory, nonretaliatory reasons for terminating [Rocha’s] employment and allegedly changing his job 

assignments.”

Finally, County contended Rocha’s inability to establish a claim for either 

discrimination or retaliation precludes recovery for failure to prevent such conduct. And 
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that, even if any of those claims were determined to be viable, he could not prevail on the 

claim because County “conducted a prompt, good faith investigation of his claims.”

C. The Trial Court’s Determinations and Rocha’s Arguments on Appeal

Among other things, the trial court determined that County had “met its burden of 

presenting evidence indicating that [Rocha] was not performing competently at his job in 

the months before he was fired”; Rocha had “not pointed to any admissible evidence that 

tends to show a triable issue of material fact with regard” to that issue, or that “tends to 

show that he was not having significant problems with his job performance in the final 

year of his employment”; County had “met its burden of showing it had legitimate, nondiscriminatory and non-retaliatory reasons for terminating” Rocha’s employment; and 

Rocha had not raised a triable issue of material fact that “County intended to discriminate 

or retaliate against him.”

Rocha does not argue that County failed to meet its initial burden on summary 

judgment. Moreover, in presenting his argument on appeal, Rocha does not separately 

discuss each cause of action. Rather, Rocha broadly contends he created triable issues of 

fact as to whether he was performing his job competently and whether the reasons given 

for his termination were pretextual.

Rocha appropriately discusses the law pertaining to summary judgment motions in 

the context of FEHA discrimination claims and the trial court’s evaluation of the case and 

its identification of Rocha’s contentions in opposition to the motion for summary 

judgment. However, Rocha devotes little space to discussing and citing facts in the 

argument section of his appellate brief.

1. No Triable Issue of Material Fact Was Shown on the Question of 

Whether Rocha Was Competently Performing His Job Duties

Rocha’s first point in support of his argument is that he provided the trial court 

with a rebuttal of his 2018 performance evaluation. However, he fails to discuss any 

specific rebuttal information in his argument that he contends might show he was 
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performing his job duties competently, and he provides no citations anywhere in his brief 

to any information contained in his rebuttal. As a consequence, we are largely left to 

guess which facts he contends raises a triable issue of fact concerning his competence in 

performing his job duties. “An appellate court is not required to search the record to 

determine whether or not the record supports appellants’ claim of error. It is the duty of 

counsel to refer the reviewing court to the portions of the record which support 

appellants’ position.” (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) 

Nor is an appellate court required to make arguments for the parties. (Paterno v. State of 

California (1999) 74 Cal.App.4th 68, 106.)

Rocha next contends that the minutes of a meeting of the San Joaquin Valley 

Library System Administrative Council indicate the council is soliciting requests for 

quotes from outside certified public accountancy firms to handle County Library’s 

budgeting process. Rocha claims this “allud[es] to the fact that if one person had to 

perform these tasks, they would burn out.” We disagree.

Rocha did not provide a citation to the referenced entry in the San Joaquin Valley 

Library System Administrative Council minutes. The only such reference we have 

identified in those minutes reads, in full:

“5. Status Update: Accounting, Bookkeeping and Controller Services.

Moving forward on RFQ11 ASAP and if anyone would like 

to assist.

“[Bath] provided [an] update of what he would like to have[—]a 

[Certified Public Accountant] firm as the fiscal consultant, controller and 

accounting services with quality, clarity, and cost effective[ness]. Fresno 

County role as fiscal agent shall be separate and independent from 

administration. [Christiansen] in the future will no longer be the 

controller and present at board meetings. This role will be included in 

the RFQ transition to local [Certified Public Accountant] firm. 

11 The acronym “RFQ” is not defined in the record on appeal. From its context, we 

presume it stands for “request for quote.”
21.

[Attorney John] Shupe assisted in this matter. Board express[ed] support 

they would like to continue to have clarity and simple presentation of 

reports so they can be understood.”

The above minute entry does not warrant the inference Rocha would like this court to 

draw from it—i.e., that, if a single person was assigned to handle the budget, that person 

would burn out.

Rocha also points to the fact that he completed two budgets (i.e., a half-year 

budget & a full-year budget) and contends this “is proof upon itself that [Rocha] was 

performing his job well.” While we do not intend to downplay the importance of 

preparing budgets or the challenges in doing so properly, Rocha cannot rely simply on the 

completion of two tasks to raise a triable issue of competent performance. Notably, 

Rocha does not provide any details concerning the time devoted to, or the efforts 

involved in, preparing or completing the budgets. He provides no discussion that would 

enable a reasonable trier of fact to conclude the completion of these two tasks alone 

demonstrates his competence in performing his job duties.

Moreover, the fact that Rocha may have completed two budgets does not begin to 

address the myriad of deficiencies in his performance catalogued in his 2018 performance 

evaluation. That evaluation stated there was “a notable change in [his] work including 

policy violations, decline in performance, conduct infractions, and unauthorized office 

equipment purchases.” Rocha does not present any argument that other job duties 

discussed in his 2018 performance were performed competently.

The 2018 performance evaluation contains detailed information to the effect that 

Rocha left work unfinished work, failed to adhere to numerous guidelines, and was often 

unwilling to perform assigned tasks. It states he assigned tasks to subordinates after

having been expressly counseled not to do so, inappropriately delegated complex agenda 

items to entry level staff while not completing any such tasks himself, and failed to 

adequately monitor those to whom he assigned important tasks. The evaluation further 

states Rocha failed to provide needed guidance and training to staff under his supervision 
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and blamed his staff for matters that were within his responsibilities when complaints 

came in from other County Library divisions or departments. The evaluation indicates he 

failed to review budget formulas and estimates, which “led to the budget being overspent 

by $8,300.” It further states Rocha was inconsistent and often unwilling to provide 

required reports and would fail and sometimes refuse to follow express directives in that 

regard. The evaluation also details Rocha’s inability to communicate effectively with 

“support staff, colleagues, and [m]anagers.” Additional instances of deficient 

performance are detailed with specificity in the evaluation.

Rocha also asserts that he was in a “catch-22” by “providing him with tasks and 

then either docking him for not completing or docking him for going over his computer 

time.” He contends this shows his 2018 performance evaluation “was ill conceived and 

only completed with the intent to retaliate against him.” Rocha provides no additional 

explanation in this regard. In any event, this assertion does not tend to show that he was 

competently performing in his position as senior staff analyst.

Finally, Rocha contends Bath was “not unbiased.” However, the evidence he cites 

to (one of the rare times he cites to actual evidence) was objected to by County, and the 

objection was sustained by the trial court. Rocha does not challenge any of the court’s 

evidentiary rulings.12

12 In his opposition declaration, Rocha provides some excuses for his subpar performance in 

certain areas. Specifically, Rocha contends he was unable to adequately supervise his 

subordinates because his assignments took him “far away from [his] staff for an extended period 

of time with no access to them or their work.” He also said he was not always given his 

subordinates’ work to review and suggests his computer-work restrictions also impeded his 

ability to review their work. Rocha makes no argument, however, that these excuses for subpar 

performance should be viewed by this court as evidence of competent performance. “ ‘We are 

not obliged to make other arguments for [appellant] [citation], nor are we obliged to speculate 

about which issues counsel intend to raise.’ ” (Hernandez, supra, 37 Cal.App.5th at p. 277.)
23.

We conclude the facts Rocha relies on in his brief on appeal are insufficient to 

create a triable issue of material fact concerning whether he was competently performing 

in the position of senior staff analyst.

2. No Triable Issue of Material Fact Was Shown on the Question of 

Whether County’s Reasons for Terminating Rocha’s Employment Were Pretextual

“If the employer meets its initial burden [by showing it had legitimate, 

nondiscriminatory reasons for taking an adverse employment action], the plaintiff then 

has the burden to produce ‘substantial evidence that the employer’s stated 

nondiscriminatory reason for the adverse action 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 v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, 

quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 

(Hersant).)

“ ‘The [employee] cannot simply show that the employer’s decision was wrong or 

mistaken, since the factual dispute at issue is whether discriminatory animus motivated 

the employer, not whether the employer is wise, shrewd, prudent, or competent. 

[Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate 

reasons for its action that a reasonable factfinder could rationally find them “unworthy of 

credence,” [citation], and hence infer “that the employer did not act for the [the asserted] 

non-discriminatory reasons.” ’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)

Rocha contends he provided evidence sufficient to show the reasons given for his 

employment termination were pretextual. In this regard, Rocha first points to the alleged 

bias of Christiansen in performing Rocha’s 2018 performance evaluation. However, 

Rocha fails to point out any evidence that suggests discriminatory animus against him 
24.

based on a medical condition or physical disability. He merely states his conclusion that 

bias was “clearly established.”

Rocha also criticizes Bath and the investigation that led to Bath’s February 7, 2019 

investigative report. Rocha contends that, during a training session in 2017, “Bath 

specifically asked [a] County attorney, if he was to find during his investigation that an 

employee was ‘dishonest’, could he avoid the normal progressive disciplinary process 

and recommend immediate termination. At this time, ... Bath was asking because he was 

handling a specific investigation regarding two County employees ....” According to 

Rocha, the County attorney replied that dishonesty “would be grounds for immediate 

termination.” This query by Bath was, by Rocha’s own admission, unrelated to him and 

does not tend to demonstrate a pretextual reason for terminating Rocha’s employment.

Rocha also contends Bath would only allow him to answer “yes” or “no” to 

questions Bath put to him and that he could not say he did not remember or recall the 

answer. However, Rocha does not provide any substantive information concerning the 

questions and answers given, and which ones he would have answered with either “I 

don’t remember” or “I don’t recall.”

As a final matter, Rocha states the court erred by determining the temporal 

proximity between his requests for medical/disability accommodation and his 2018 

performance evaluation was insufficient, by itself, to establish pretext.

“In the classic situation where temporal proximity is a factor, an employee has 

worked for the same employer for several years, has a good or excellent performance 

record, and then, after engaging in some type of protected activity—disclosing a 

disability—is suddenly accused of serious performance problems, subjected to derogatory 

comments about the protected activity, and terminated. In those circumstances, temporal 

proximity, together with the other evidence, may be sufficient to establish pretext.” 

(Arteaga, supra, 163 Cal.App.4th at pp. 353–354.) “ ‘To prevent future litigants from 

relying on temporal proximity alone to establish [pretext], we once again attempt to 
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clarify the issue.... “[C]ases that accept mere temporal proximity ... as sufficient 

evidence of causality to establish a prima facie case uniformly hold that the temporal 

proximity must be ‘very close.’ ” ... [T]o be persuasive evidence, temporal proximity 

must be very close, and importantly ... temporal proximity alone, when very close, can in 

some instances establish a prima facie case of [discrimination or] retaliation.... But we 

affirmatively reject the notion that temporal proximity standing alone can be sufficient 

proof of [pretext]. Such a rule would unnecessarily tie the hands of employers.” (Id. at 

p. 354.)

“ ‘Employers are sometimes forced to remove employees who are performing 

poorly, engaging in improper work conduct, or severely disrupting the workplace....

Precedent does not prevent [an employer] from removing such an employee simply 

because the employee [recently] engaged in a protected work activity ....’ ” (Arteaga, 

supra, 163 Cal.App.4th at p. 354.)

Rocha argues he was a County employee “for over eleven years and had only 

received positive evaluations up to the last and final evaluation.” This ignores the fact 

that Rocha was with DSS for the bulk of that time and was only a County Library 

employee for two evaluation periods. He admits he had no prior experience in the 

position of senior staff analyst and that he had to be trained for the position. Comparing 

his performance at DSS to his performance at County Library is akin to comparing apples 

to oranges.

Rocha also argues he “had filed multiple accommodation requests and had filed 

complaints against [Christiansen],” and that “[o]nce this was done, this same supervisor 

began her multiple discriminatory actions against him.” However, Rocha has not shown 

any discriminatory animus on the part of Christiansen tied to his medical condition or 

physical disability.

Moreover, the temporal proximity between Rocha’s complaints against 

Christiansen or his workers’ compensation claim, on the one hand, and his employment 
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termination, on the other hand, was not very close in time. His latest complaint against 

Christiansen was filed August 8, 2018, yet his performance evaluation was not completed 

until January 14, 2019, more than five months later; the investigative report by Bath was 

not completed until February 7, 2019, the following month; and his employment 

termination followed on March 8, 2019, the month thereafter. His workers’ compensation 

claim, filed on June 13, 2018, is separated by an even greater period of time.

We conclude Rocha has not met his burden to provide substantial evidence that 

County’s reason for terminating his employment was untrue or pretextual as required. 

(See Hersant, supra, 57 Cal.App.4th at p. 1005; Hicks v. KNTV Television, Inc., supra, 

160 Cal.App.4th at p. 1003.)13

DISPOSITION

The judgment is affirmed. County is entitled to its costs on appeal.

HILL, P. J.

WE CONCUR:

SMITH, J.

DE SANTOS, J.

13 In sum, this opinion does not determine that Rocha was, in fact, not competently 

performing his position as senior staff analyst, or that the reasons underlying County’s decision 

to terminate him were correct or true. Rather, in that regard, this opinion merely concludes 

Rocha did not demonstrate the trial court erred in granting County’s summary judgment motion.