Filed 4/16/13 Rush v. City of Oakland CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KARLA M. RUSH,

Plaintiff and Appellant,

v.

CITY OF OAKLAND et al.,

Defendants and Respondents.

 A134024

 (Alameda County

 Super. Ct. No. RG09477417)

Former Oakland Police Officer Karla M. Rush sued the City of Oakland (the City) 

and the Oakland Police Department (OPD) for gender discrimination after the City 

terminated her employment following an internal investigation of false search warrant 

affidavits executed by Rush and other OPD officers. Defendants moved successfully for 

summary judgment, and Rush appeals. We affirm the judgment in favor of defendants.

I. BACKGROUND

Rush was hired as a police officer by OPD in June 2000, and terminated from her 

employment in April 2009. She sued OPD and the City in October 2009, alleging her 

gender was a motivating reason for her termination in violation of the California Fair 

Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA). Defendants moved 

successfully for summary judgment in 2011, and this timely appeal followed. 

In their motion for summary judgment, defendants alleged the following facts 

were undisputed: 

In September 2006, Rush became a problem-solving officer in district 5 (PSO 5), a 

position she held until her termination. In the summer of 2008, Rush was the subject of 
2

multiple internal affairs division (IAD) investigations begun in response to citizen 

complaints about search warrants executed at their homes. During these investigations, it 

was discovered Rush had submitted search warrant affidavits containing untruthful 

information. Rush’s affidavits falsely asserted suspected narcotics obtained during what 

is known as an ―X buy‖ had been tested by the OPD’s crime lab when, in fact, they had 

not been tested.1 The scope of the IAD investigation expanded when it was discovered 

that additional false search warrant affidavits were authored by Rush as well as 18 other 

officers. 

The investigator was asked to determine if the subject officers violated two 

specified rules in OPD’s ―Manual of Rules‖: (1) ―REPORTS AND BOOKINGS‖ (―No 

member or employee shall knowingly falsify any official report or enter or cause to be 

entered any inaccurate, false or improper information in the records of the Department‖); 

and (2) ―TRUTHFULNESS‖ (―Members and employees are required to be truthful at all 

times whether under oath or not‖). The investigator interviewed all of the subject 

officers, 22 witness officers, two vice charging officers, six current and former 

criminalists in the crime lab, and confidential informants involved in the X buys in 

question. Rush was interviewed three times and was represented by an attorney at all 

three interviews. 

The IAD investigator established that the crime lab does not test all suspected 

narcotics it receives. Suspected drugs are typically not tested absent a request for testing 

made by an officer either directly to a lab criminalist or through the narcotic vice 

charging officers. It is the officer’s responsibility to follow up with the lab to find out the 

results of any drug analysis requested. Many of the subject officers, including Rush, 

mistakenly believed submission of a narcotics envelope constituted a request for drugs to 

be tested, or that if they obtained a tracking number (―D number‖) for the submission, 

 

1 An X buy occurs when an officer uses a confidential informant to purchase 

suspected narcotics at a location where the officer believes narcotics are being sold. The 

purpose of conducting an X buy is to gather probable cause to obtain a warrant to search 

the location for narcotics. 
3

this constituted proof the suspected drugs had been tested.2 But Rush was the only 

subject officer who did not believe she needed to follow up with the lab to find out the 

results of the drug test before asserting in search warrant affidavits that the drugs had 

been tested. She stated she believed the crime lab tested all suspected drug evidence it 

received even though she also admitted that, on more than one occasion, she had been 

called to testify in court and her testimony was delayed because the drug evidence had 

not been tested by the lab. 

From March 2007 through August 2008, Rush prepared 40 X buy search warrant 

affidavits. In 35 of the warrants, the suspected drugs were never tested by the crime lab. 

In another four, the suspected drugs were tested, but not until after the search warrant was 

issued. For one warrant, it could not be determined whether the test occurred before or 

after the issuance of the warrant. Rush’s 39 confirmed false search warrant affidavits 

were far more than any of the other subject officers. Fifteen of the subject officers had 

three or fewer untruthful affidavits, and the officer with the second highest number of

false search warrants had 10. 

Like other officers, Rush used templates to prepare her search warrant affidavits. 

In her earlier affidavits she stated a ―presumptive test‖ was conducted at the crime lab or 

the Eastmont Substation ―which yielded that [the suspected cocaine or other drug] indeed 

contained [cocaine or other drug].‖ Rush’s later search warrant affidavits represented 

that ―[a] test was conducted on the narcotics, which yielded that it indeed contained [the 

suspected drug].‖ When questioned about her use of the term ―presumptive test,‖ Rush 

stated she believed a presumptive test was her visual inspection of the substance 

purchased by the informant. The IAD investigator did not find Rush to be credible on 

this point.3 Even when she used the later affidavit template without the ―presumptive 

 

2 Rush was not one of the officers who asserted the so-called ―D number defense.‖ 

Assignment of a D number in fact had nothing to do with whether the evidence had been 

tested. 

3

The investigator cited three grounds for his credibility finding. First, the 

majority of the other officers interviewed (including witness officers) understood a 
4

test‖ language, Rush claimed the ―test‖ it referred to was still her visual inspection. She 

admitted the statement the suspected drugs ―indeed‖ tested positive in that template was 

―extremely vague‖ and was a ―strong statement‖ suggesting it was based on a chemical 

test report rather than ―just my assumption, visual inspection‖ of the suspected drug. 

The IAD investigator ultimately concluded Rush violated the OPD’s rules on 

―Reports and Bookings‖ and ―Truthfulness‖ due to her submission of 39 false search 

warrant affidavits. The investigator also sustained charges of misconduct against 13 

other subject officers. During the same time period, Rush was also the subject of an IAD 

investigation concerning allegations of false arrest in connection with another search 

warrant she executed, made by residents of the home searched. That investigation 

concluded Rush arrested the residents without probable cause and obtained the search 

warrant based on false information. 

IAD recommended all of the officers who received sustained findings for violation 

of the ―Reports and Bookings‖ and ―Truthfulness‖ rules be terminated pursuant to the 

OPD’s discipline policy. Under the policy, termination is the only penalty available for 

officers who violate these rules, even if it is a first offense. Termination for 

untruthfulness is also the ―industry standard‖ in the law enforcement field. It is 

understood any sustained finding of untruthfulness against an officer must be disclosed to 

the defense under Brady v. Maryland (1963) 373 U.S. 83 (Brady) in any case in which 

the officer testifies.4 The OPD issued notices of proposed termination to 11 officers, 

including Rush, who were found to have violated the subject rules. 

 

presumptive test is performed by officers with a portable chemical testing kit. Second, 

the officer Rush identified as her mentor testified it was his practice to use these kits and 

he believed Rush was aware of that. Third, given Rush’s narcotics enforcement 

experience, it seemed unlikely she did not understand what a presumptive test was. 

4 Ultimately, seven of the officers with a sustained finding of untruthfulness were 

not terminated. Three of the 10 male officers were disciplined with a one-day suspension 

for performance of duty violations. 
5

An outside hearing officer was retained by OPD to provide the subject officers the 

opportunity to respond to the proposed discipline.5 The hearing officer concluded only 

three of the officers, including Rush, should be terminated. In April 2009, the City 

terminated the employment of Rush and three other officers based on the investigative 

findings of IAD and the recommendations of the chief of police and outside hearing 

officer. The fourth officer terminated, a male, was terminated notwithstanding the 

hearing officer’s recommendation because OPD believed the hearing officer 

misunderstood the facts of that particular case. A fifth officer, also male, who had been 

on medical leave during the main investigation, was terminated in September 2009, for 

submitting false search warrant affidavits. 

The Oakland Police Officers’ Association (OPOA) grieved Rush’s termination 

through a six-day binding arbitration proceeding in 2010, on the question of whether the 

City had just cause to terminate her employment. The arbitrator concluded it was not 

plausible Rush believed mere submission of a drug envelope meant a test had been 

conducted and the test revealed the substance to be a narcotic. The arbitrator accordingly 

concluded the statements in the affidavits that a drug test had been conducted and it 

revealed the contents of the envelope ―indeed‖ contained narcotics were made knowing 

they were untrue. Regarding Rush’s claims concerning her understanding of the 

presumptive test language in some of the affidavits, the arbitrator noted the affidavits 

lacked any description of any physical examination or visual test Rush conducted of the 

suspected narcotic. The arbitrator rejected OPOA’s assertion Rush’s misconduct was 

caused by a lack of training, stating ―[t]elling the truth is not a matter of training,‖ and 

Rush was not being terminated for failing to follow OPD procedures but for untruthful 

statements presented to judges to obtain search warrants. 

The arbitrator also rejected OPOA’s claim Rush was treated more severely than 

the male officers, finding her 39 false affidavits ―clearly set her apart from the other 

 

5 Commonly known as a Skelly hearing, this procedure is required by due process 

considerations when a public employer proposes to discipline an employee. (See Skelly 

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

officers,‖ and noting OPD recommended termination of all 11 officers who received 

sustained findings for submitting false reports. Regarding the effect of Brady, the 

arbitrator concluded the findings that Rush submitted untruthful affidavits in conjunction 

with 39 search warrants would have to be disclosed to defense attorneys, would hamper 

the prosecutor’s ability to rely on Rush as a witness, and constituted ―serious 

misconduct‖ regardless of its Brady implications. 

II. DISCUSSION

Rush contends she came forward with evidence of a prima facie case of gender 

discrimination, as well as evidence from which a rational trier of fact could infer 

intentional discrimination. 

A. Applicable Law

In cases alleging adverse employment actions in violation of FEHA, the trial 

courts apply the same three-stage, burden-shifting test established by the United States 

Supreme Court for trying claims of discrimination based on a theory of disparate 

treatment. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–804 

(McDonnell Douglas).) The plaintiff bears the initial burden to establish a prima facie 

case of discrimination. (Morgan v. Regents of University of California (2000) 

88 Cal.App.4th 52, 68.) ―Generally the plaintiff must provide evidence that (1) he was a 

member of a protected class, (2) he was . . . performing competently in the position he 

held, (3) he suffered an adverse employment action, such as termination . . . , and 

(4) some other circumstance suggests discriminatory motive.‖ (Guz v. Bechtel National, 

Inc. (2000) 24 Cal.4th 317, 355 (Guz).) The specific elements of a prima facie case may 

vary depending on the particular facts. (Ibid.)

If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the 

employer to produce admissible evidence its action was taken for a legitimate, 

nondiscriminatory reason. If the employer meets this burden, the presumption of 

discrimination is dispelled and it becomes the plaintiff’s burden to prove the employer’s 

proffered reasons were pretexts for discrimination or to offer any other evidence of 

discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355–356.)
7

The fact finder may consider the evidence establishing the prima facie case and 

inferences properly drawn from that evidence on the issue of whether the employer’s 

justification is a pretext. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 

133, 143.) But the plaintiff must do more than establish a prima facie case and deny the 

credibility of the employer’s witnesses. The plaintiff must produce specific, substantial 

evidence of pretext, and a triable issue of fact can be created only by a conflict of 

evidence, not by speculation or conjecture. (Horn v. Cushman & Wakefield Western, Inc.

(1999) 72 Cal.App.4th 798, 807.)

To show pretext, the plaintiff cannot simply show the employer’s decision was 

wrong, mistaken, or unwise. The evidence must expose such weaknesses, 

implausibilities, inconsistencies, or contradictions in the employer’s explanation for its 

actions that a reasonable fact finder could rationally find those explanations unworthy of 

credence, and thus infer the employer acted for other reasons it chose not to reveal. 

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

In the summary judgment context, the burdens are reversed. ―Commonly, an 

employer will seek summary judgment, arguing that the plaintiff has not satisfied one of 

the four elements of the prima facie case and thus is not entitled to proceed to trial, or that 

there is no disputed issue of material fact regarding the motivation behind the adverse 

employment decision.‖ (Caldwell v. Paramount Unified School Dist. (1995) 

41 Cal.App.4th 189, 202.) ―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.‖ (Id. at p. 203.)

B. Rush’s Prima Facie Case

There is no dispute Rush was a member of a protected class and suffered an 

adverse employment action. Defendants maintain, however, there was no triable of issue 

of material fact with respect to whether Rush was performing competently as a police 
8

officer or whether any circumstances existed suggesting her termination was motivated 

by her gender. 

As to the issue of Rush’s job performance, defendants point to the undisputed 

evidence Rush had multiple sustained allegations of misconduct at the time of her 

termination, as well as sustained allegations she had arrested two citizens without 

probable cause. Further, those findings had been upheld by an outside hearing officer, 

and an arbitrator had recommended she be terminated after binding arbitration. Rush 

cites evidence her direct supervisor and her coworkers believed she was a hard worker, 

and was competently performing the duties required by her position when she was 

terminated. 

The burden of establishing a prima facie case of discrimination is not onerous. 

(Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253.) It is designed 

to eliminate only the most patently meritless claims. (Guz, supra, 24 Cal.4th at p. 354.) 

Consistent with that standard, some courts distinguish between misconduct on the job 

that might be grounds for termination and the minimal competence in job performance 

required to make a prima facie showing of discrimination. (See, e.g., Wills v. Superior 

Court (2011) 195 Cal.App.4th 143, 167–168 (Wills); Sista v. CDC Ixis North America, 

Inc. (2d Cir. 2006) 445 F.3d 161, 171–172; Owens v. New York City Housing Authority

(2d Cir. 1991) 934 F.2d 405, 409 (Owens).) As stated in Owens: ―We have no doubt that 

. . . misconduct may certainly provide a legitimate and non-discriminatory reason to 

terminate an employee. This misconduct is distinct, however, from the issue of minimal 

qualification to perform a job. An individual may well have the ability to perform job 

duties, even if her conduct on the job is inappropriate or offensive. Accordingly, the 

finding of misconduct here cannot preclude [the plaintiff] from showing her qualification 

for employment as required by McDonnell Douglas.‖ (Id. at p. 409.)

The record in this case discloses Rush received very positive performance 

evaluations before the inception of the IAD investigations. The arbitrator concluded 

Rush had ―conducted herself as a professional police officer‖ during her career, although 

this did not negate the good cause the arbitrator found the City had to terminate her 
9

employment. In our view, Rush met her prima facie burden to show she performed 

competently in her job. At the same time, the evidence of Rush’s misconduct on the job 

meets the City’s burden to show a legitimate, nondiscriminatory reason for discharging 

her, placing the burden on Rush to show this reason was pretextual. (See Wills, supra, 

195 Cal.App.4th at p. 171.) 

With regard to the fourth required element of her prima facie case—the existence 

of a circumstance suggesting a discriminatory motive—Rush asserts there was evidence 

similarly situated male employees were treated more favorably. She focuses on the fact 

the City allegedly did not terminate all of the male officers who submitted false warrant 

affidavits, but only those officers who, unlike her, were also found to have lied to IAD. 

While there is good reason to question whether the record supports this assertion, we will 

assume Rush has met her minimal prima facie burden of showing some circumstance 

arguably suggesting discriminatory motive. We proceed to consider whether OPD has 

come forward with a legitimate, nondiscriminatory reason for discharging Rush and 

whether Rush met her burden of coming forward with ―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.‖ (Hersant, supra, 57 Cal.App.4th at p. 1005.)

Rush effectively concedes the City has offered a legitimate, nondiscriminatory 

reason for discharging her, namely, her submission of false search warrant affidavits.6 

She contends there are triable issues of fact as to whether the City’s stated reasons were 

nonetheless pretextual because she came forward with (1) substantial evidence she was 

held to a higher standard and punished more severely than male coworkers found to have 

engaged in the same conduct; and (2) other evidence of inconsistency, pretext, and 

gender bias within OPD. 

 

6

The City terminated Rush not only for the false affidavits but also for sustained 

IAD findings, after an investigation resulting from a citizen complaint, that she arrested 

two citizens without probable cause stemming from a false search warrant affidavit. 
10

C. Disparate Treatment Evidence

To support her claim she was held to a higher standard than male officers, Rush 

asserts four male officers (designated Nos. 3, 4, 12, and 16) committed more egregious 

misconduct than her—lying in the IAD investigation—yet were not terminated. The 

evidence simply does not support the disparate treatment claim Rush is trying to make 

relative to these officers. First, there is no substance to her assertion she was truthful 

during the IAD investigation whereas the male officers lied. The IAD report on Rush’s 

false warrants stated the preponderance of the evidence showed Rush ―was untruthful in 

her interviews with investigators,‖ and made a specific finding to that effect. The notices 

of proposed termination sent to Rush in connection with both the false affidavit and arrest 

without probable cause investigations stated, ―[I]t was determined that you were 

untruthful‖ in the investigations. Second, the four male officers had submitted a total of 

eight false warrant affidavits between them, while Rush had submitted 39 false affidavits, 

and had an additional sustained finding—resulting from a citizen complaint—of making 

two arrests without probable cause. There is simply no substantial evidence on this 

record from which a reasonable jury could conclude Rush’s gender, not the extent and 

seriousness of the findings against her, was the reason the City treated her more harshly 

than the other officers she cites.

Additionally, OPD did not initially recommend lighter punishment for three of the 

four male officers Rush mentions. It recommended termination of these officers as well, 

even though they were responsible for only a fraction of the number of false affidavits for 

which she was responsible. It relented as to these officers only after the outside Skelly

officer recommended they be exonerated. Rush has no complaint that OPD treated her 

unfairly in making its initial recommendations that 12 officers be terminated. She objects 

solely to OPD’s decision to mostly follow the recommendations of the outside Skelly

officer, Edward Kreins, that termination was not in fact warranted in 8 of the 11 original 

termination cases. As explained by Lieutenant Sean Whent (who supervised the IAD 

investigation), OPD’s decisions about which terminations to pursue after the Skelly

hearings were based on tactical judgments about the likelihood the City would prevail in 
11

arbitration with the OPOA in the face of an adverse Skelly hearing result.7 Rush 

dismisses that explanation. She characterizes Kreins as a mere ―tool to implement the 

discriminatory intent‖ of Whent and OPD Chief Howard Jordan. But we find no 

evidence in the record to support this claim. Kreins was not an OPD employee and there 

is no evidence he was beholden to or influenced by Whent or Jordan. Considering that 

Kreins rejected most of OPD’s recommendations, the evidence is, if anything, to the 

contrary.8 If there was no discriminatory intent shown by OPD’s initial 

recommendations, as Rush concedes, and no evidence OPD manipulated the Skelly

officer’s recommendations or responded to them in an inconsistent manner, her gender 

discrimination theory falls apart. 

Rush further contends she was the only officer terminated based on a finding she 

―should have known‖ her affidavits contained false information whereas the male officers 

who claimed not to fully comprehend the language in their affidavits (designated by Rush 

as Nos. 8, 13, and 15) were not terminated due to what they ―should have known.‖ This 

mischaracterizes the evidence. OPD initially recommended termination of all of the 

officers in question. The male officers were alleged to be responsible for 12 false 

affidavits between them compared to Rush’s 39 false affidavits. The Skelly officer 

recommended against termination of the male officers because he found Officers Nos. 8, 

13, and 15 committed no deliberate or knowing violation of rules and did not falsify any 

affidavits. In boilerplate language, he noted these officers were ―remiss in not fully 

understanding the ramifications of the language in the affidavits.‖ Similar language 

suggesting negligence or sloppiness in submitting affidavits without understanding their 

 

7 OPD’s concerns proved to be prescient. In the four cases where OPD followed 

the Skelly officer’s recommendation to terminate an officer, the termination was upheld 

in arbitration or otherwise became final. In the one case where OPD sought termination 

notwithstanding the Skelly officer’s recommendation for lighter discipline, the City lost 

the ensuing arbitration. 

8 Whent testified he had never heard of Kreins before he was chosen to conduct 

the Skelly hearings. He thought Kreins had been a chief of police in Beverly Hills or 

somewhere else in Southern California. 
12

contents also appeared in the Skelly officer’s findings as to all three of the officers he 

recommended for termination, including Rush, but in all three cases the officer also 

found persuasive evidence of untruthfulness. 

In Rush’s case, the Skelly officer acknowledged Rush’s contentions that she did 

not always read the affidavits and that her actions were the result of poor training and 

mistakes rather than malice. He nonetheless found her actions were deliberate as well as 

negligent and reckless, and that she was untruthful in her affidavits, both in her use of 

template testing language and in averring on four occasions that she observed the 

confidential informant go to the front door of the target residence, which she admitted 

was untrue. Although he also found Rush ―remiss in not fully understanding the 

ramifications of the language in the affidavits,‖ this was plainly not the basis for his 

recommendation of dismissal. No substantial evidence in the record supports Rush’s 

claim she alone was terminated because she ―should have known‖ her affidavits 

contained false information. She was terminated because she either knew the affidavits 

were false or was, at minimum, recklessly indifferent to whether they were true or false, 

and because the City was confident it could prove this if the matter went to arbitration. 

Rush further contends she was terminated in part because the IAD investigation 

and Skelly officer found she did not have a ―credible‖ understanding of the ―presumptive 

test,‖ whereas a male officer with the same understanding as Rush’s (Officer No. 8) was 

not terminated. In fact, the IAD investigator found Rush was being untruthful when she 

claimed not to know what a presumptive test actually was. The basis for this finding was 

that she (1) was mentored by a more experienced officer who was very familiar with 

presumptive tests and was sure he had shown Rush how to perform such tests, and (2) she 

had worked for two years in an environment in which it was very unlikely she would not 

have learned about this subject. The IAD report stated: ―Based on [Officer No. 15’s] 

statement and the close working relationship between him and Rush, it is reasonable to 

conclude that Rush had more knowledge of chemical tests than what she led IAD and 

CID investigators to believe. . . . It defies logical reasoning that with Rush’s knowledge 
13

base in the area of narcotics and being immersed in the environment that she was in, that 

she would have no understanding of what a presumptive test truly was.‖ 

Officer No. 8 by contrast authored a total of eight drug warrant affidavits, of 

which only two were in issue in the IAD investigation. In both cases, the warrants 

incorrectly represented that drugs turned into the crime lab had tested positive. One was 

tested after the date of the affidavit, and the other was never tested. The officer claimed 

the affidavits were not false because he had conducted his own chemical tests on the 

drugs in those cases, but the investigator found the officer’s defense disingenuous for 

multiple reasons. Under questioning by IAD, Officer No. 8 had claimed to believe the 

term ―presumptive test‖ meant only a visual inspection as opposed to a chemical test, 

which was possibly a fabrication to avoid having to explain why he had not used the 

template language referring to presumptive testing of the suspected narcotics. It is 

impossible to draw any conclusions about Officer No. 8’s veracity or sincerity on this 

point from the short excerpt of the officer’s interview Rush provides. In any event, IAD 

focused on other improbabilities in his defense and did not mention his claimed 

misapprehension about ―presumptive tests‖ in concluding Officer No. 8 was being 

untruthful and recommending his termination. The Skelly officer for his part found there 

was no evidence Officer No. 8 did not test the drugs himself, and recommended lighter 

discipline. We fail to see how Officer No. 8’s circumstances are probative of gender 

discrimination or inconsistent treatment by the City. He was responsible for two false 

warrants compared to Rush’s 39. Unlike in Rush’s case, there was no direct connection 

between the falsity of Officer No. 8’s two warrant affidavits and the sincerity of his 

purported beliefs about presumptive testing. In any event, OPD believed both officers 

had knowingly submitted false affidavits and would have terminated both of them but for 

the practical difficulty of overcoming the Skelly officer’s rejection of OPD’s findings on 

Officer No. 8.

Rush claims disparate treatment based on the asserted fact that some of the male 

officers (designated as Officers Nos. 7, 11, 13) were excused for their false affidavits due 

to inadequate training, but Rush was not. We note first the three officers were accused of 
14

executing one false affidavit each, compared to 39 executed by Rush. Further, two of the 

three officers were not excused by OPD for lack of training, but were originally 

recommended for termination by OPD. In the case of the third officer, Officer No. 7, the 

warrant was his first and only X buy. He worked under Rush’s tutelage who assured him 

it was okay to get the warrant after dropping the suspected drugs off at the crime lab and 

getting a D number. On these facts, the IAD investigator found insufficient evidence to 

conclude Officer No. 7 intentionally submitted a false affidavit. Officers Nos. 11 and 13 

were recommended for light or no discipline by the outside Skelly hearing officer. In the 

case of Officer No. 11, Kreins emphasized the insufficiency of the evidence the officer 

was lying, not inadequate training, as his reason for recommending no discipline. Officer 

No. 13 was recommended by IAD for termination based on the only search warrant 

affidavit he authored in which a warrant was issued by a judge. Another officer had 

assisted him in preparing the affidavit and had supplied the lab testing language that was 

false. Officer No. 13 claimed he did not review the affidavit before signing it and was 

unaware of the language. Kreins emphasized the officer’s inexperience and 

recommended lighter discipline based on the officer’s failure to read the affidavit. The 

inference of gender discrimination Rush proposes we draw from the evidence concerning 

these officers is simply not reasonable.

In sum, we find Rush did not come forward with substantial evidence she was 

treated more harshly in the City’s disciplinary process than similarly situated male 

officers.

D. Other Evidence of Pretext and Bias

Rush claims OPD’s ―stated reason for terminating‖ her—that she ―did not fully 

comprehend the language of the warrants‖—was pretextual because that was a training 

issue and not grounds for termination. We emphatically reject the premise of Rush’s 

argument. She was terminated for knowingly submitting 39 false affidavits, lying to 

investigators, and other acts of untruthfulness in connection with the false arrest and other 

investigations. Rush mischaracterizes Sean Whent’s deposition testimony to support her 

premise. He did not testify she was terminated because she should have had a better 
15

understanding of the language in the affidavits. Whent testified he personally believed 

Rush may not in fact have read or reviewed the affidavits she signed under penalty of 

perjury but that she nonetheless routinely signed them without any regard for whether 

they were true or false. This is a truthfulness issue, not a training issue, and does not in 

any way support an inference of pretext. While one or two phrases in the lengthy paper 

trail leading to Rush’s dismissal reference arguably negligent conduct, in addition to

multiple findings of untruthfulness, these isolated phrases are insufficient to support an 

inference of pretext. 

Finally, Rush contends the trial court erred in failing to consider certain evidence 

of gender bias in OPD, consisting of general comments about issues facing female 

officers. She argues such evidence should have been considered ―in combination with 

substantial evidence [she offered] that similarly situated male officers were treated more 

favorably . . . and . . . the Defendants’ reasons . . . were pretextual.‖ We disregard the 

hearsay evidence Rush offered of comments purportedly made to her by Lieutenant 

Sharon Williams about female officers having to work harder. The City timely objected 

to the evidence, the court sustained the objection, and we find no error or abuse of 

discretion in that ruling. The other evidence to which Rush refers suggests at most that 

female officers in OPD, like female employees in a variety of other institutional settings, 

face greater challenges in working conditions and promotions than male officers. We do 

not believe such evidence, standing alone, is sufficiently substantial to create a triable 

issue of fact as to whether gender discrimination was a motivating factor in Rush’s 

termination. 

III. DISPOSITION

The judgment is affirmed.
16

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.