Filed 5/13/15 Johnson v. County of Los Angeles CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

YOLANDA JOHNSON,
Plaintiff and Appellant,

v.
COUNTY OF LOS ANGELES,
Defendant and Respondent. B255587
(Los Angeles County Super. Ct. No. BC481413)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Richard E. Rico, Judge. Affirmed.

The Law Offices of Marvin L. Mathis and Marvin L. Mathis for Plaintiff and Appellant.

Gutierrez, Preciado & House and Calvin House for Defendant and Respondent.

* * * * * *2 In this employment case, plaintiff Yola nda Johnson, a long time employee of the County of Los Angeles (the County), allege d retaliation, disability discrimination, and harassment. Johnson appealed from the judgme nt of dismissal for the County after the trial court granted the County ’s summary judgment motion. We affirm. The County proffered sufficient evidence of legitimate, no ndiscriminatory reasons for its actions. In addition, the conduct of which Johnson comp lains does not fall with in the meaning of
harassment.
FACTS AND PROCEDURE
1. Allegations of Complaint Johnson is a 25-year employee with the Co unty. In February 2007, the County promoted her to Departmental Human Resources Manager III of the Probation Department. Her duties included supervising the implementation of county, state, and federal disability discrimination laws. On December 21, 20 09, she injured her upper extr emities, neck, and back when she was moving employee personnel files fro m one location to another. Johnson also alleged her job-related stress and strain re sulted from retaliation and harassment because she objected to the County’s unlawful employment practices. The County initiated a baseless investiga tion of Johnson after she took time off for physical and mental health treatment and missed a meeting from which her immediate supervisor had excused her. On March 31, 2 010, her treating physician took her off work due to a temporary inability to perform her duties. Also on March 31, she received a negative performance evaluation, notwithstandi ng her history of re ceiving a rating of “outstanding” or “very good” on all prior performance evaluations. The County issued her a “Notice of Intent to Reduce” (NIR) from Departmental Human Resources Manager III to Administrative Service Manager III. This demotion caused a reduction in responsibilities, salary, and benefits.3 Johnson’s first cause of action alleged re taliation, citing Government Code section
12653. 1 Specifically, she alleged th e County retaliated against her for complaining of or reporting disability discrimination against Prob ation Department employees. Her second cause of action alleged disability discrimina tion under section 12940, subdivision (a), part of the California Fair Em ployment and Housing Act (FEHA ). (§ 12900 et seq.) Her third cause of action alleged harassment under section 12940, subdivision (k).
2. Summary Judgment Motion The County moved for summa ry judgment, arguing (1) the cause of action for
retaliation under section 12653 failed because section 12653 falls under the False Claims Act (§ 12650 et seq.), and the False Claims Act did not protect Johnson’s complaints; (2) the cause of action for disability discrimina tion failed because no pe rson who had a role
in Johnson’s demotion knew sh e had a disability, the Coun ty had nondiscriminatory reasons for the demotion, and there was no ev idence those reasons were pretextual; and (3) the cause of action for harassment fa iled because those who allegedly harassed Johnson did not know she had a disability, and the conduct was not severe or pervasive.
A. Evidence Suppor ting the Motion As of November 2005, Johnson was H ead of Personnel Operations for the Probation Department. The County promoted her to Department al Human Resources Manager III for the Probation De partment in February 2007. The promotion came with additional compensation, though her job duties remained the sa me as before. Essentially,
Johnson was head of human resources fo r the Probation Department. Johnson was responsible for Probation’s personnel ope rations, payroll operations, examinations, recruitment and selection, pe rformance management, classifi cations, the return-to-work

1 Further undesignated statutory references are to the Government Code unless otherwise noted.4 program, 2 background investigations, employ ee relations, and grievances. She supervised 60 to 65 employees when she took over in 2005. In response to interrogato ries, Johnson stated her disa bility arose when she injured her shoulders, right hand, right wrist, a nd lower back on Decem ber 21, 2009. She reported the injuries to her supervisor, Robe rt Smythe, at the time they happened. On January 21, 2010, she filled out a claim for wo rkers’ compensation benefits and described the injuries mentioned above, as well as neck pain, head aches, and anxiety attacks. Also in response to interrogatories, J ohnson identified her demotion as the adverse employment action at issue. The County s ubmitted voluminous evidence of the process and investigation that led to the March 31, 2 010 NIR. The NIR stat ed the basis for the demotion was failure to meet guidelines for et hical behavior, failure to follow established rules and policies, and failure to perform job duties.
i. Performance Issues
The NIR relied on Johnson’s most recen t performance review for the period July 1, 2009, to March 31, 2010, and identified unresolved performance deficiencies going back several years. The NIR asserted Johnson had failed to take corrective actions
that the Chief Executive O ffice (CEO) and the Department of Human Resources identified in several different performance audits. Much of th e County’s summary judgment evidence consisted of declarations and deposition testim ony of the individuals who performed the audits and Johnson’s superi ors, who were responsible for managing or evaluating her. The County also proffered documentary evidence su ch as audit reports and email correspondence. The performance audits and deficien cies identified in the NIR included the following.

2 The return-to-work program referred to the efforts to literally return injured or ill employees to work, whether in the same, temporary, perman ently modified, or alternate positions.5 Department of Human Resources Audit of 2006 to 2007: Analysts with the County’s Department of Human Resource s conducted an aud it of the Probation Department’s human resources division. Th e audit identified 32 de ficiencies within Probation’s performance management, opera tions, health and safety, and employee relations functions. The audit generated correc tive actions for each. The analysts created periodic status reports to monitor the stat us of corrective actions. The January 2008 status report concluded Proba tion had not corrected a number of problem areas, including a backlog of disciplinary actions, noncompliance with Skelly 3 guidelines, untimely processing of grievances, the failure to ma intain current medical certification for employees on leaves of absence, and the failure to resolve pending return-to-work cases.
A June 2009 audit concluded th e corrective actions still had not been fully implemented. (We further discuss the June 2009 audit below.) February 2008 Directive Regarding Offi cer Examinations: In January 2008, the state changed its scoring methodology for the juvenile corrections officer’s and probation officer’s written tests. The County’s Depa rtment of Human Resources directed Johnson and her subordinates to implement a series of changes to bring Probation into compliance with the new methodology. They had until March 31, 2008, to comply. By April 23, 2008, Probation had not made the necessary ch anges, and the County’s Department of
Human Resources tried to assist Probatio n with implementing the changes. The
June 2009 audit determined Probation still had not fully implemented the changes. February 2008 Intervention Regarding De tention Services Officer Examinations: Sometime between 2007 and 2008, Department of Justice monitors recommended that Probation increase its juvenile hall daytime supervision sta ff, or Detentions Services

3 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 ( Skelly ) held that permanent civil service employees are entitled to minimum preremoval safeguards, including “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.” ( Id. at p. 215.)6 Officers (DSO). Probation required approx imately 200 additional daytime staff as a result. Probation had a large backlog of app lications for the DSO exam awaiting review and was not efficiently schedu ling exam interviews and pre-employment medical exams. In or around February 2008, the County ’s Department of Human Resources sent staff to
intervene at Probation and oversee the DSO hiring process. The intervention included written recommendations for the process. Af ter the Department of Human Resources staff completed their time at Probation, Johns on failed to continue to follow the staff’s
recommendations. June 2009 Department of Human Resources Audit: On June 29, 2009, the Department of Human Resources commenced an audit of Probation because the County’s CEO was concerned about a backlog of unpr ocessed employment applications and the efficiency of Probation’s examination admini stration process. The 24-page audit report found Probation had approximately 8,166 applican ts at various stages of the application process, but no plan or process for handling the applications and testing. The backlog
extended back to 2007. The audit also concluded Probation had significant deficiencies in the administration of examinations, in cluding Johnson’s failure to implement corrective actions or recommendations from pr ior audits. The auditors recommended a six-month evaluation period for monitoring Pr obation’s efforts to re solve the backlog and examination issues. The audit report cont ained specific recommendations for correcting
the deficiencies. September 2009 CEO Audit: In Se ptember 2009, the County’s Board of Supervisors instructed the CE O to evaluate the effectiven ess of Probation’s return-towork program. Probation provided the CEO with 440 open return-to- work cases, and the CEO selected 10 percent of the files for review. The audit identified a number of deficiencies in the files, such as failure to show o ngoing communications with the employee and employee’s supervisor, failure to show a long-term action plan, failure to document attempts to explor e reasonable accommodations, and failure to document the interactive process meetings and their outcomes.7 December 2009 to January 2010 Audit by Probation Te chnical Assistance Team: In December 2009, the CEO created the Proba tion Technical Assistance Team to assess business processes in Probation, identify deficiencies, and provide assistance in correcting them. The team assessed Proba tion in the areas of discipline/advocacy, examination administration, item control/organ ization/staffing, and the return-to-work program. The auditors determined Probati on had a backlog of 4 77 disciplinary actions and 192 unresolved grievances . The auditors also determ ined previous interventions from the Department of Human Resources in th e area of examination administration (the 2006-2007 audit, the February 2008 interven tion, and the June 2009 audit) had not
resulted in “substantive cha nges” in examination practic es. The auditors found
Probation’s human resources division still was “not effe ctively or appropriately administering the examination program.” Furt her, the auditors foun d Probation had made no progress on the corrective action plans for th e small number of return-to-work files reviewed during the September 2009 audit. At the beginning of 2010, the Depart ment of Human Resources gathered documentation relating to the various asse ssments of Probation’s human resources division and presented it to the acting head of Probation, Acting Chief Probation Officer Calvin Remington. After reviewing the doc umentation and consulti ng with individuals from the Department of Human Resources, th e CEO, and Probatio n, Remington decided
to demote Johnson. Remington also decided to give Johnson a rating of “failed to meet expectations” on her March 2010 performance review, based in large part on the determination that she had failed to implement corrective actions iden tified in the foregoing audits. Johnson’s review stated: “[Y]ou have demonstrated a pattern of willful disregard to implement
corrective measures in numerous areas . . . . This has led to the current malfunctioning state of many of the HR programs in the Proba tion Department. This complete failure of organizational responsibility has defeated an y trust or confidence in your ability to manage the Department’s human re sources organization effectively.”8 ii. Administrative Investigation Aside from the performance issues, Johns on’s poor rating in the March 2010 performance review was based on her response to an administrative investigation into her absence at a December 23, 2009 meeting with County Supervisor Gl oria Molina. The
NIR likewise cited her failure to be “forthcomi ng” in the administrative investigation as a
basis for the NIR. Johnson attended a De cember 22, 2009 meeting with Supervisor
Molina to discuss Probation’s return-to-work program. Th e supervisor ordered everyone to return the following day fo r a further meeting. Johnson indicated she would attend, but she did not. This meeting was “critic al” because Probation’s executive team and
human resources staff were to meet with S upervisor Molina’s office and the CEO on what was considered a “high-priority a ssignment”—specifically, Probation was to demonstrate to the CEO and the supervisor th at it had, indeed, acted on the concerns raised in the September 2009 audit of return -to-work files. Johnson had requested time off from December 28, 2009, to January 6, 2010 . Because of the nature of the meeting, and allegations that Johnson ha d improperly failed to attend the meeting because of her planned vacation that was to start several days later, the County’s Department of Human
Resources conducted an inves tigation into her absence. Epifanio Peinado, Assistant Director for the County’s Department of Human Resources, conducted the investigation. Peinado commenced the investigation on or around January 11, 2010, at th e request of the County’s CEO. He interviewed Johnson, her immediate supervisor, Smythe, and eigh t more individuals. Smythe informed
Peinado that he had received a call from J ohnson on the night of December 22. Johnson told Smythe she had a family emergency in Atlanta, Georgia relating to the care and custody of her daughter’s child ren and could not attend th e meeting on December 23.
Johnson had received a call from her teenage granddaughter th at her mother (Johnson’s daughter) had been arrested, and the four minor grandchildren were left alone as a result. Smythe recalled that Johnson said she needed to fly out that evening. Other participants at the December 23 meeting reported that Sm ythe said Johnson ha d a family emergency and was “‘on a plane’ or words to that effect .” Peinado asked John son to provide proof9 of her air travel. Johnson responded that she did not fly, but instead started driving to
Atlanta because she needed to bring her four grandchildre n back with her. She began driving on the evening of December 22 and turned around halfway there because she received a call that the emergency had been re solved. Because of th e inconsistencies in
the evidence about her mode of travel, Peinado asked Johnso n to produce receipts for gas or lodging during her drive, bu t Johnson stated she did not have any and thus did not produce any documentation. In his investigative report, Peinado concluded that the allegation Johnson had misrepresented her need to be off on December 23 was not substantiated, but it was still “unclear if there was a family emergency the night of December 22, 2009 that necessitated [her] need to be out-of-town, because of th e conflicting information she provided to her supervisor and to the inve stigators about her travel arrangements to Atlanta, Georgia. In addition, [she] has not provided to date any documentation to support her statements, regard ing her travel arrangements th at caused her to be out-oftown.” Peinado further concluded Johnson (1 ) reported inaccurate in formation to Smythe regarding her travel arrangements when she sought approval to miss the December 23 meeting, and (2) reported inaccurate and incomplete information during the administrative investigation. Therefore, th e investigation determined she had violated departmental “Directive 1211 that require[d] all employees to cooperate with internal departmental and external County administrati ve investigations by providing truthful and complete responses to questions asked by investigator(s) and pr ovid[ing] any and all requested informati on or evidence.”
iii. Skelly Hearing and Final Notice Johnson’s attorney obtained the mate rials on which the NIR was based and
Johnson reviewed them. Johnson’s Skelly hearing to respond to the charges in the NIR took place on April 21, 2010, and was presided over by Cynthia McCoy-Miller, Senior Deputy Director of the County’s Department of Children and Family Services. Peinado
also attended the Skelly hearing “to be of technical assi stance” to McCoy-Miller. After10 hearing Johnson’s testimony and evidence and the County’s evidence, McCoy-Miller recommended that the County move forward with its decision to demote Johnson. On or about May 28, 2010, Johnson r eceived a permanent notice of reduction signed by Remington, notifying her that she wa s being demoted as explained in the NIR.
3. Johnson’s Evidence in Oppositio n to Summary Judgment Motion Johnson’s opposition argued that the st ated reasons for demoting her were untrue—that is, she asserted the purported performance failu res in the NIR had already been addressed, and she truly had a family emergency to excuse her absence from the December 23 meeting. Her immediate supervis or Smythe had signed and given her all prior performance reviews since November 2005 to June 30, 2009. He consistently gave her very good ratings and glowing reviews that indicated she had met or exceeded expectations throughout that period. Sh e had no history of disciplinary actions. The NIR failed to acknowledge Probatio n’s written responses to some of the audits, including quarterly stat us reports relating to the 2006-2007 audit and a finding-byfinding response to the June 2009 audit, issued in January 2010. Regarding her March 2010 performance revi ew, Johnson also po inted to what she thought were procedural im proprieties. Remington had b een acting head of Probation less than 60 days when he approved Johns on’s performance review in March 2010. County policy “suggested” that , when a person has supervis ed an employee for less than 60 days, another person who has supervised the employee for a longer period be consulted for the employee’s performance review. In this case, however, neither Remington’s predecessor nor Smythe was cons ulted for Johnson’s review. Although Remington signed the NIR and the performan ce review, he relied on others in the Department of Human Resources to draft th em. Peinado and his supervisor prepared these documents and consulted with Remington on them. Regarding the administrative inves tigation, Johnson asserted Peinado’s conclusions were unjustified. Specifically, th e evidence did not s upport the conclusion that she misrepresented her mode of trans portation. Johnson testified she missed the meeting with the supervisor on December 23 because she received the call that her11 daughter had been arrested in Atlanta. Sh e advised Smythe of the situation and her concern that her grandchildre n would be placed in protec tive custody. He approved her request to be off. After finishing some work for the following day’s meeting, she went home and began looking at flights. The next morning she decided to drive and left with her son for Atlanta. En route, she receiv ed a call from her daughter saying that the
authorities had released her tem porarily. Smythe testified at deposition that Johnson did not know what mode of transportation she wo uld use when they talk ed on the night of December 22. He denied telling anyone that Johnson was going to “fly out of town.” Johnson argued she was discriminated against because she was injured and became disabled in December 2009, and she was harassed and retaliated against for opposing an unlawful practice in return-to-work cases. In particular, Johnson testified
that at the December 2009 me eting with Supervisor Molina, the supervisor directed
Probation to deal with return -to-work cases by either (1) bringing employees back to work “at their full capacity,” (2) demoting them to a position they could perform, or (3) discharging them. Johnson responded that the process was not so simple that it could be reduced to just those three outcomes, and she refused to implement the supervisor’s plan, but the supervisor did not accept her resp onse. Johnson asked for direction on implementing the supervisor’s plan; Deputy C ounty Counsel, also present at the meeting, told her “such a plan would create a liability for the County if written.” Smythe was also present for the meeting with Supervisor Mo lina, who was looking at and commenting on
Probation’s return-to-work files. He felt the supervisor’s t one toward him and Johnson as she was examining the files was “very dero gatory, very accusatory, [and] nasty.”
4. Trial Court’s Ruling The court granted the County ’s summary judgment motion in its entirety. First, it
held Johnson had no cause of action for re taliation under the section cited in her complaint, section 12653, becau se the False Claims Act did not apply in this case. The court noted that, even if th e complaint cited section 12653 by mistake, Johnson did not acknowledge the mistake. S econd, the court held the disa bility discrimination cause of action lacked merit because the County sh owed it had legitimate, nondiscriminatory12 reasons for the demotion—name ly, performance deficiencies and providing inaccurate
information in the administrativ e investigation. It found Jo hnson failed to dispute this showing with evidence of pretext or disc riminatory animus. The court, however, expressly rejected the County’s argument th at the decisionmakers were unaware she had a disability. The court found Johnson had f iled a workers’ compensation claim for her December 2009 injury and report ed the injury to her immedi ate supervisor. Third, and finally, the court held the cause of acti on for harassment failed because there was no
evidence that Johnson was harass ed because of a disability. The court entered a judgment dismissing the complaint with prejudice. Johnson filed a timely notice of appeal.
STANDARD OF REVIEW A court shall grant a motion for summary j udgment if all the papers show there is no triable issue as to any material fact and th e moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) As the pa rty moving for summary judgment, the employer in a FEHA action has th e burden of establishing either (1) one or more elements of the employee’s cause of acti on cannot be established, or (2) a complete
affirmative defense to the ca use of action exists. (Code Civ. Proc., § 437c, subds. ( o )(1), (2), (p)(2).) To demonstr ate the elements of a cause of action cannot be established, the employer may show the employee does not posse ss evidence needed to support a prima
facie case and also cannot reasonab ly obtain the needed evidence. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The em ployer may also, but need not, present evidence conclusively negating an element of the cause of action. ( Ibid. ) Once the employer has met its initial burden, the burd en shifts to the employee to produce evidence showing a triable issue of material fa ct. (Code Civ. Proc., § 437c, subd. (p)(2).) On appeal from summary judgment, we review the record de novo and must independently determine whether triable issues of material fact exist. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve any evid entiary doubts or ambiguities and view all
inferences from the ev idence in favor of the party opposing summary judgment. ( Aguilar13 v. Atlantic Richfield Co., supra , 25 Cal.4th at p. 843; Saelzler v. Advanc ed Group 400,

supra , p. 768.)
DISCUSSION
1. Disability Discrimination Cause of Action The trial court did not err in granting th e motion on the disability discrimination cause of action. FEHA prohibits employe rs from discriminating against employees because of their physical disabilities “in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).) A prima facie case of disability discrimination under FEHA requires the empl oyee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. ( Faust v. Califo rnia Portland
Cement Co. (2007) 150 Cal.App.4th 864, 886.) Once the employee establishes a prima facie case, “the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.” ( Deschene v. Pinole Point
Steel Co. (1999) 76 Cal.App.4th 33, 44.) The employee may still defeat the employer’s showing with substantial eviden ce that the proffered reason is pretextual or with other evidence that the employer acted w ith discriminatory animus. ( Ibid .; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806.) The employee may demonstrate pretext by showing the proffere d reason had no basis in fact, the proffered reason did not actually motivate the adverse employment action, or the proffered reason
was insufficient to mo tivate the adverse employment action. ( Villanueva v. City of
Colton (2008) 160 Cal.Ap p.4th 1188, 1195.) An employee does not demonstrate pret ext merely by showing “the employer’s decision was wrong, mistaken, or unwise.” ( Horn v. Cushman & Wakefield Western, Inc., supra , 72 Cal.App.4th at p. 807.) Rather, the employee must show “‘“weaknesses, implausibilities, inconsistencies, incoherencie s, or contradictions in the employer’s proffered legitimate reasons”’” such that a reasonable factfinder would rationally find the reasons not credible, and woul d therefore infer the employe r did not act for legitimate reasons. ( Ibid. )14 Assuming Johnson had evidence to su pport a prima facie case, the County proffered substantial, legitimate, nondiscrim inatory reasons for her demotion. To begin with, the County showed signi ficant performance issues. Her March 2010 performance review covered the period July 1, 2009 , through March 31, 2010. Remington appropriately considered the results of the June 2009 audit, which only commenced on June 29, for that review period. The results of this audit showed, among other things, that
corrective actions identified in the 2006 to 2007 audit an d the 2008 directive regarding
officer examinations still had not been implemented. The J une 2009 audit also showed a large continuing backlog of ap plicants dating back to 2007. In addition, Remington appropriately considered the results of the September 2009 audit of the return-to-work function—showing deficiencies in the admini stration of return-to-work cases—and the December 2009 to January 2 010 audit by the Probation Technical Assistance Team— showing deficiencies in disciplinary actions , grievances, examinations, and return-towork cases. These audits provided eviden ce for the conclusi on in the performance
review and the NIR that Johnson was not effectively managing the human resources division of Probation, particularly in that problems from prior years were persisting into the latest review period. Johnson contends she presented substantia l evidence that thes e performance issues were a pretext, but we disagree. She argues pretext is shown by the fact that her prior performance reviews from Nove mber 2005 to June 2009 were all very positive. This argument is unpersuasive. Those earlier review s predated the audits in June 2009 and later, which showed prior problems persiste d and identified newer issues. Thus, the earlier reviews could not possibl y have taken into account the results of audits not yet
conducted. She also asserts the performance issues “had been properly addressed by Probation” before the NIR, and one of the au thors of the NIR (Peinado’s colleague in the Department of Human Resources) acknowledg ed Probation had properly addressed the issues. Peinado’s colleague acknowledged being familiar with Probation’s written response to the June 2009 audit, which Proba tion sent in January 2010. She did not, however, say the response properly addressed the issues in the audit. She said that while15 the Department of Human Resources accepted Probation’s response, it “did not agree
with it.” 4 At best, this evidence shows Pr obation disagreed with the findings of
deficiencies in the audit. Th is might show the auditors were wrong or mistaken in their
conclusions in the June 2009 audit. But this is not sufficien t; the evidence does not show
the decision to demote was based on weaknesses, implausi bilities, inconsistencies, incoherencies, or contradictions such that a reasonable factfinder would find the decision to be incredible. Moreover, Probation’s respon se addressed the June 2009 audit only, and not the other findings of defici encies in the later audits. Johnson next relies on purported proced ural irregularities relating to the March 2010 performance review and the Skelly hearing. None of these things demonstrate her performance issues were a pretext. She po ints out that Remington did not prepare her review and depended on others to prepare it be fore signing it. It is unclear why the acting head of Probation had to pers onally prepare the document or the NIR. While he relied on others to prepare the documents, he review ed the documentation underlying them. The
fact that he did not draft them does not show they were a pretext. Likewise, the fact that he signed the performance review when he had been acting head of Probation for less than 60 days does not show the review was a pretext for discrimination. Johnson contends this violated County policy. Ther e was no evidence of a hard and fast policy prohibiting Remington from signing the review if he had been department head for less than 60 days. Peinado testif ied merely that it was “suggested ” a department head consult with the employee’s immediate supervisor if he or she had been in the position for less than 60 days. Remington’s predecessor, th e prior Chief Probation Officer, had signed Johnson’s previous reviews along with Sm ythe. But Remington’s predecessor was no

4 Peinado’s colleague was Sandra Taylor, who headed the County’s Department of Human Resource’s “Impact Division” at the tim e of the relevant events. The Impact Division “assist[ed] County departments with assessing the effectiveness and efficiency of Human Resources functions such as pe rformance management, employee relations, classifications and compensation.” The Impact Division employed some of the analysts who conducted the audits at issue.16 longer with Probation at the time of the re view, and Smythe was also no longer with
Probation at the time. Johnso n additionally contends it was im proper for Peinado to sit in
on her Skelly hearing because he conduct ed the administrative i nvestigation and lacked objectivity. She asserts Remington recognized the impropriety in having him there. Her argument does not accurately represent his tes timony, though. Remington testified that in the case of a high-level manager like Johnso n, typically a manager from another County department would preside over the hearing, and normal practice was to have someone uninvolved in the investigation serve as the Skelly hearing officer to ensure objectivity. Remington’s understanding is consistent with case law holding that implied in the Skelly “right to respond” is a right to respond “before a reasonably impartial, noninvolved reviewer.” ( Williams v. County of Los Angeles (1978) 22 Cal.3d 731, 736-737.) In this case, McCoy-Miller, a manager from the Coun ty Department of Children and Family Services, served as the Skelly hearing officer and decided to recommend demotion. Peinado’s presence at the hearing does not dem onstrate that he was the hearing officer or
that the Skelly hearing lacked objectivity. Johnson an d her attorney were also present. McCoy-Miller considered both the County’s and Johnson’s evidence before making a decision. There was no showing that McCoy- Miller was partial or an involved reviewer.
The results of the administrative inve stigation into Johnson’s absence from the December 23, 2009 meeting prov ided the second ba sis for the NIR, and specifically the findings that she provided inaccurate and in complete information in requesting time off and subsequently during the inve stigation. Johnson contends this was a pretext because the findings were wrong; she told the truth ab out the family emergency, and there were
no inconsistencies in the stor y because Smythe testified at deposition he never told anyone she was flying to Atlanta. Despite Smythe’s deposition testimony, the evidence collected by Peinado was, indeed, conflicting. His report of the investigation indicates Smythe told him Johnson said she would fly to Atlanta. Other witnesses reported that Smythe said Johnson was flying. Johnson insisted she did not fly but drove and had no receipts to corroborate this. These incons istencies caused Peinado, who personally interviewed the witnesses, to conclude John son was not entirely forthcoming. While one17 might disagree with Peinado’s conclusion or believe he was wrong, his conclusion was not so implausible, incoherent , or contradictory as to lack credibility. “‘“[A]n employer’s judgment or course of action may seem poor or erroneous to outsiders, [but] the relevant question is . . . whether the given reason wa s a pretext for illegal discrimination”’” or other illegal conduct. ( Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.) Furthermore, even if his conc lusion did lack credibility, the performance issues provided an independent, legitimate basis for Johnson’s demotion, which Johnson did not show was pretextual. In sum, the trial court did not err in conc luding there were no triable issues of fact on the disability discrimination claim. The County proffere d ample evidence of legitimate, nondiscriminatory reasons for demoting Johnson, and she did not refute this
evidence.
2. Retaliation Cause of Action The trial court granted the County’s mo tion on the retaliation cause of action because the complaint cited section 12653, a section of the False Claims Act, and Johnson did not assert facts supporting a viol ation of the False Clai ms Act. We do not agree completely with the r easoning, but ultimately, the re sult was not erroneous. The County was entitled to judg ment on this cause of ac tion for another reason.
A. Citation to the False Clai ms Act in the Complaint Even though the comp laint cited section 12653, we think it abundantly clear from a fair and common sense reading of the compla int that the cause of action for retaliation
fell under FEHA. Below, the County’s sole argument on the retaliation cause of action was that the False Claims Act targets those who present fa lse claims for payment or approval to the government, and because Johnson did not complain about such fraud against the government, she could not establish an essen tial element of the cause of action. The argument relied entirely on the citation to the Fa lse Claims Act in the complaint. Yet the County’s motion expressly acknowledged th at Johnson based her retaliation cause of action “on the fact that she ‘refused to par ticipate in the on-going discrimination against18 Probation Department personne l that had work injuries a nd were working in modified duties, or off work under the care of a physician.’” “The pleadings play a key role in a summary judgment motion.” ( Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 49 3.) They delimit the scope of
the issues and set the boundaries of mate riality in summary judgment proceedings. ( Ibid. ) Thus, a defendant moving for summary ju dgment must refute the theories alleged in the complaint, but not so me theoretical possibility not included in the pleadings. ( Ibid. ) We should liberally cons true the complaint with a vi ew to attaining substantial justice between the parties. ( American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)
Retaliation under FEHA was an issue fa irly framed by the complaint. The complaint is sprinkled with references to alleged “ret aliation” for objecting to the County’s practices with respect to disabl ed workers and allegations that Johnson complained of disability discrimination ag ainst Probation employees. The complaint clearly invokes the relevant section of FE HA, section 12940 (albeit not the precise subdivision), in the general rec itals preceding the statement of the causes of action, and in
the causes of action other than retaliation. If the County ne eded any clarification—which it did not—discovery certainly provided it. The County propound ed interrogatories relating to the alleged retaliation, and John son’s responses plainly indicated she was asserting retaliation prohibited by FEHA, not retaliation prohibited by the False Claims Act. The County asked her to state all actions she initiated that resulted in retaliation; she responded that she “refused to cooperate in the disability discrimination against injured Probation Department employees.” Retaliation under FEHA was not merely some theoretical possibility left out of the complaint. On the co ntrary, the facts alleged in the complaint provided a more than
sufficient basis for such a theo ry, even if the comp laint mistakenly cited the False Claims Act. (See American Airlines, Inc. v. County of San Mateo, supra , 12 Cal.4th at p. 1131 [noting we should determine whether the facts alleged provide the basis for a cause of19 action under any theory].) The Coun ty could not willfully close its eyes to the allegations and pretend they did not exist.
B. Retaliation Under FEHA Though the County did not discuss the s ubstance of a FEHA retaliation cause of action in its motion, and the trial court did no t reach the substance, we consider it. “We may affirm the summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court.” ( Drake v. Pinkham (2013) 217 Cal.App.4th 400, 406.) As we discuss in the following paragraphs, the pivotal issue on the retaliation cause of action is also the County’s ev idence of legitimate, nondiscriminatory reasons for its adverse empl oyment action. Below, the parties had an adequate opportunity to addre ss this issue and the issue of pretext in connection with disability discrimination. The reasons that warranted summarily adjudicating the
discrimination cause of action also warrant summarily adjudicating the retaliation cause
of action. FEHA makes it unlawful “[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because th e person has opposed any practices forbidden under [FEHA] or because the pe rson has filed a complaint, tes tified, or assisted in any proceeding under [FEHA].” (§ 12940, subd. (h).) To estab lish a prima facie case of retaliation under FEHA, “a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employe e to an adverse employment action, and (3) a causal link existed between the protect ed activity and the employer’s action.” ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 ( Yanowitz ).) The employee’s burden of establishing a prima facie case is fairly minimal. ( Arteaga v. Brink’s, Inc., supra , 163 Cal.App.4th at p. 353.) Just like a discrimination case, once an em ployee establishes a prima facie case of retaliation, the employer may obtain su mmary judgment by offering legitimate, nonretaliatory reasons for the adverse employment action. ( Yanowitz, supra , 36 Cal.4th at p. 1042.) And again, if the employe r does so, the presumption of retaliation disappears, and the burden shif ts back to the employee to sh ow the legitimate reasons for20 the employer’s action were untrue or pretextual , or to show other ev idence of retaliatory motive. ( Ibid. ; Loggins v. Kaiser Pe rmanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) Johnson presented prima facie evidence of protected activity. Opposing practices forbidden by FEHA constitutes protected activity, and specifically, “[o]pposing employment practices that an in dividual reasonably believes to exist and believes to be a violation of [FEHA].” (Cal. Code Regs., tit. 2, § 11021, subd. (a)(1 )(C).) FEHA need not actually prohibit the comp lained-of conduct, so long as the employee reasonably believed the conduct was discriminatory. ( Yanowitz, supra , 36 Cal.4th at p. 1043.)
Johnson’s evidence indicated sh e opposed a plan for return-t o-work cases that meant the County either return ed disabled Probation employees to their positions “at their full capacity,” demoted them, or terminated them . Johnson objected that the process could not be so simplified. She r easonably believed the plan violat ed FEHA. To the extent the plan as presented to her did not provide for (1) reasonable accommodations in existing positions, or (2) an interactive process to de termine whether employees could return to their positions with such accommodations, as o pposed to “at their full capacity,” the plan arguably violated FEHA. FE HA prohibits an employer fro m failing to make reasonable
accommodations for known disab ilities of employees and from failing to engage in a timely, good faith, interactive process with employees to determine whether reasonable accommodations are available. (§ 12940, subds. (m), (n).) Johnson also presented prima facie ev idence of an adverse employment action— her demotion. Ultimate employme nt acts such as refusing to hire, terminating, demoting, or failing to promote are classic exampl es of adverse employment actions. ( Guz v. Bechtel National, Inc., supra , 24 Cal.4th 317, 355; Jones v. Department of Corrections &
Rehabilitation (2007) 152 Cal.App.4th 1367, 1380.) Further, Johnson presented prima facie ev idence of a causal link between her protected activity and the adverse employment action. Temporal proximity between an employee’s protected activity and a subsequent adverse action may satisfy the prima facie causation requirement. ( Arteaga v. Brink’s, Inc., supra , 163 Cal.App.4th at p. 353.)21 Here, Johnson objected to the supervisor’s plan for return-to-work cases at the December 22, 2009 meeting. A little ove r two weeks later, the administrative investigation commenced, and sometime in the first three months of 2010, the Department of Human Resources presente d Remington with the documentation and information on Johnson’s performance. This proximity between Johnson’s protected activity and the process that set in motion her demotion was prima facie evidence of
causation. Still, as we discuss above, the County rebutted the pres umption that arises from a prima facie case with legitimate, nondiscrim inatory reasons for J ohnson’s demotion, and
Johnson did not refute this ev idence as pretextual or otherw ise show retaliatory motives. Hence, the County was en titled to judgment on this cause of action as well.
3. Harassment Cause of Action Lastly, we conclude the c ourt did not err in granting the County’s motion on the harassment cause of action. FEHA prohib its an employer from harassing an employee because of a physical or mental disability , among other protected classes. (§ 12940, subd. (j)(1).) Johnson brought suit under sect ion 12940, subdivisi on (k), which provides for liability when the employer fa ils to take reasonable steps to prevent harassment. To prevail on a cause of action for failure to prevent harassment, the plaintiff must show actual harassment occurred. ( Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)
For conduct to constitute actionable harassm ent, it must be so severe or pervasive
that it alters the conditions of the victim’s employment a nd creates an abusive working environment. ( Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 446, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) “‘In determining what constitu tes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff mu st show a concerted pattern of harassment of a repeated, routine or a generalized nature.’” ( Muller , at p. 446.)22 “‘[H]arassment consists of conduc t outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal mo tives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.’” ( Reno v. Baird (1998) 18 Cal.4th 640, 64 5-646.) “[T]he Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the pr ovision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” ( Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) The regulations implementing FEHA defi ne harassment as including verbal harassment, such as epithets, de rogatory comments, or slurs; physical harassment, such as assault, impeding or blocking movement, or any physical interferenc e with normal work or movement; visual forms of harassment, such as derogatory posters, cartoons, or drawings; and sexual harassment, such as conditioning an employment benefit on an exchange of sexual favors. (Cal. Code Re gs., tit. 2, § 11019, subd. (b).) “Thus,
harassment focuses on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive messag e to the harassed employee.” ( Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Here, no material factual dispute exists as to harassment. The administrative investigation, poor performance review, an d demotion of which Johnson complains were the type of necessary personnel management d ecisions that do not fa ll within the meaning of harassment. Instead, FEHA addresses thes e types of official employer actions as

“ explicit changes in the ‘terms, conditions, or privileges of employment’” under the discrimination subdivision. ( Roby v. McKesson Corp., supra , 47 Cal.4th at p. 706.) Moreover, even if these actions constitu ted harassing conduct, Johnson still had to show the pertinent individuals harassed her because she belonged to a protected class.23 Again, the County proffered ample eviden ce that it based the March 2010 performance review and the NIR on legitim ate, nondiscriminatory reas ons. The County’s evidence
also showed it commenced th e administrative investigation for legitimate reasons— Johnson missed a high-priority meeting, and there was some reason to suspect she was
not truthful because she had a vacation scheduled in close temporal proximity. Johnson contends she was also subjected to harassing conduct when Supervisor
Molina threw return-to-work file s to the floor and ordered he r and Smythe to clean them up. The record contains no evidence of such an incident. Instead, Johnson attaches exhibits to her appellate brief describing such an incident (a page from Smythe’s deposition and a memorandum she wrote in January 2010). This material is not properly before us. On appeal from su mmary judgment, we confine our review to the record the trial court had before it. ( Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717;
Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 62 1, 627.) We may not
consider evidence the trial court did not have when it ruled on the motion. ( Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4.)
DISPOSITION The trial court did not err in granti ng summary judgment. The judgment is affirmed. In the interest of justice, the par ties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

FLIER, J.
WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.