Filed 7/3/13 King v. County of Ventura CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

KYLE KING, 

 Plaintiff and Appellant, 

v. 

COUNTY OF VENTURA, 

 Defendant and Respondent. 

2d Civil No. B242411 

(Super. Ct. No. 56-2009-00357224-CUOE-VTA) 

(Ventura County) 

 Appellant Kyle King's employer, respondent County of Ventura (County), 

dismissed him from probation less than two months after the County investigated his 

complaints of misconduct by his initial training officer. King sued the County for 

retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, 

§ 12940.)1 The trial court granted the County's motion for summary judgment. 

 As we shall explain, King established a prima facie case giving rise to a 

rebuttable presumption of retaliation. The County, however, successfully rebutted that 

presumption by demonstrating a legitimate, non-retaliatory reason for King's dismissal. 

Once the presumption of retaliation disappeared, the burden shifted to King to raise a 

triable issue of material fact that the County was more likely than not motivated by a 

retaliatory intent. He failed to meet that burden. We affirm. 

 

1 All statutory references are to the Government Code unless otherwise stated. 
2 

FACTS AND PROCEDURAL BACKGROUND 

 On May 4, 2008, King and coworker Cory Coffey began a six-month 

employee probationary period as fire specialists with the Fire Prevention Bureau 

(Bureau) of the Ventura County Fire Department (Department). The fire marshal who 

headed the Bureau assigned Larry Williams as their supervisor and Aaron Greer as their 

training officer. At that time, the fire marshal knew Greer "was not going to be happy 

and was not happy [with the] assignment." Before King and Coffey reported for work, 

Williams candidly told them that there were problems with Greer and asked them to 

report any inappropriate communications or conduct by Greer. 

 During the first week of training, Greer started talking negatively about 

other Department employees, particularly the fire marshal.2 King and Coffey listened to 

"basically eight hours of negative and improper comments about the [Department]." 

Greer told them: "Nobody there knows what they're doing. Everybody has their heads 

up their [ass]." He described an affair the fire marshal purportedly had, or was having, 

with the Department's assistant chief. Greer told King and Coffey that the assistant 

chief's wife, after learning of the affair, had created a scene at the Department's 

headquarters and then vandalized the fire marshal's home by spray-painting the word 

"whore" on her driveway. Greer told them to watch the couple's body language at the 

next meeting, as "the fire was still burning." 

 Greer also described the fire marshal's purported behavior with other 

Department employees, saying "she sleeps around with everybody, all the line guys." He 

told King and Coffey that the fire marshal had discovered that one of her former male sex 

partners, who also was a County employee, had died from an AIDS-related illness. Greer 

stated the fire marshal subsequently was tested for the HIV virus, and as word spread 

through the Department, approximately 12 male officers with whom she had been 

sexually involved sought reimbursement from the union for the costs of testing. Greer 

 2 Due to the nature of Greer's comments, we refer to the fire marshal by her title 

and identify other Department personnel only where necessary. The record reflects that 

Greer made derogatory comments about a number of Department employees, but for the 

most part, their identities are irrelevant to the resolution of this appeal. 
3 

warned King that the fire marshal was still "on the prowl," and was eyeing King as a 

possible partner. 

 Uncomfortable with these comments, King and Coffey complained to 

Williams. They reported that Greer was spending a great deal of training time discussing 

the fire marshal's sex life and who was sleeping with whom in the Department. Williams 

agreed that the comments were inappropriate for the work place and discussed their 

concerns with Pam Mack, the Department's Human Resources Director. Mack instructed 

Williams to obtain written statements from King and Coffey. After receiving the 

statements, Tom Dorch of the County Executive Office investigated the complaints. 

Mack and Dorch repeatedly assured King and Coffey that the complaints would remain 

confidential. King and Coffey also were told not to make any further complaints about 

Greer. The County acknowledges "that something approximating the claimed 

misbehavior did occur." 

 After their meeting with Dorch, King felt he was getting the "cold 

shoulder" from formerly friendly coworkers. One of the coworkers, Inspector Richard 

Martinez, approached Coffey and said he knew that she and King had "told on" Greer. 

When King and Coffey told Mack what Martinez had said, Mack acknowledged a "leak" 

and said they were searching through Department e-mails to determine its source. 

 Following the investigation, the fire marshal, who was aware of the 

complaints, assigned Rodrigo Torres as King and Coffey's supervisor. The fire marshal 

told Torres she thought he "could provide a much better training environment for 

[them]." Torres claims he was not informed of either the complaints or the investigation. 

 At the time of the supervisorial transfer on June 8, 2008, Greer told Torres 

that both probationers were performing satisfactorily. Greer provided Torres with their 

training verification checklists, which are used by the Bureau as a guide in the training of 

new personnel. The checklists showed the areas that needed to be covered during 

training and also verified that such areas were covered. Torres denied any knowledge of 

the checklists. 
4 

 Torres assigned King to clerical duties at the Department's main public 

counter and placed Coffey in a different clerical position. Torres assigned an 

experienced, trusted employee, Mark Enneking, to train King at the counter. According 

to Enneking, "[w]orking at the Public Counter can be stressful as the Counter can get 

busy. As part of the duties I handled, I would quote the public applicable fees for a 

permit. This entailed looking up the fee schedules and making certain calculations. At 

times the schedules themselves could be confusing." Enneking claims that Torres never 

asked him for his input or opinion on King's work performance and that, in Enneking's 

view, King's performance at the counter was satisfactory. 

 On July 15, 2008, Torres gave King a written probationary performance 

review which stated King "need[s] improvement" in 7 of the 25 categories. The review 

indicated that King should continue to study and learn Department policies and 

procedures, ensure that documents are completed accurately and in a timely manner, 

improve on attention to detail, ensure that personal and public safety is not compromised, 

complete tasks as assigned and display ability to make appropriate decisions. The review 

did not include any specific examples of performance deficiencies. 

 Torres and King orally discussed the areas in which he needed to improve. 

King agreed with some of the criticisms, particularly improving his knowledge of certain 

codes. Torres claims that he told King at that time, and again on August 4, 2008, that he 

was not on the road to completing probation. King contends that no one ever told him he 

was in danger of dismissal. 

 While observing King at the counter, Torres noted "multiple transactions 

. . . where the documents were incomplete and the forms were incorrect." On August 1, 

2008, Torres discovered that King had not properly "closed" the public counter. King 

had left on the TVs and had stuffed the unfolded flags in a drawer. Torres subsequently 

recommended that King be dismissed from probation. On August 28, 2008, the fire 

marshal called King into her office and gave him a written notice of probationary 

dismissal, which she had signed. The notice gave no reasons for his dismissal. When 

King asked why he was being dismissed, Torres "showed [him] two mistakes that [he] 
5 

had made three weeks prior on charging somebody wrong at the counter." The fire 

marshal also stated: "We don't think you're a good fit for this [D]epartment." The fire 

chief denied King's request for a hearing to seek clarification of the reasons for his 

termination. A few days after his dismissal, Torres discarded King's training file. 

Approximately five weeks later, the County dismissed Coffey from probation. 

While he was supervising King, Torres prepared an activity/event log 

documenting King's performance. In addition to noting the probationary performance 

review meeting on July 15, 2008, the log lists three specific performance issues that 

occurred prior to King's dismissal. The first and most significant incident occurred when 

King was on arson patrol on July 5, 2008. King was having trouble seeing while driving 

at night in a poorly lit area of Fillmore and asked permission to leave his shift early. The 

log states that Torres "offer[ed] to pick [King] up but he has already returned and is in the 

HQ parking lot." It further states that when King returned from patrol, Torres "explained 

[his] concern with [King's] poor use of judgment in driving a county vehicle when he was 

not able to see well at night." 

 King disputes Torres's account of the incident. King testified that when he 

called Torres to report the issue, Torres responded: "Oh, no problem. Just come on 

back." Torres also said: "It's not an issue. Don't worry about it." King claims he did not 

realize there was an issue until it came up during his performance review. 

 The second incident in the log occurred on July 8, 2008, when King 

"turn[ed] in his timecard unsigned and without required ICS-214 for 4th of July." 

According to Torres, he had to ask King three separate times to sign and turn in his 

timecard. King claims he signed and turned in his timecard as requested. 

 The third incident was King's failure to turn off the TVs and to properly 

fold the flags when he closed the office on August 1, 2008. King asserts that after Torres 

counseled him on appropriate "closing" procedures, King had a coworker show him how 

to correctly fold the flags. 

 The log further notes that following King's dismissal, Torres received 

"copies of multiple incoming transmittals, receipts and inspection request with mistakes 
6 

and not filled out completely." The log reflects that the Department concluded that King 

was responsible for "[a]ll discrepancies," and issued refunds to customers totaling several 

thousand dollars. 

 Additionally, the record reflects that King observed a "small grass fire" 

when he was on arson patrol on July 5, 2008. King noted the grass fire in his daily 

activity log but did not describe what he did in response to the fire. King responds that 

"[a]t the time, I had not been instructed on what to write in my log when I came upon a 

scene where fire department personnel were already there. I did note the fire in my log, 

but did not include any facts." King did, however, record specific details about other 

matters, including his dinner plans. 

 Following his dismissal, King filed a complaint against the County for 

retaliation in violation of section 12940, wrongful termination and breach of contract. He 

claims he was dismissed because he was perceived as a "snitch." The County moved for 

summary judgment. King opposed the motion, asserting that triable issues of material 

fact exist regarding whether he was dismissed because of his complaints about Greer. 

The trial court granted the motion. Relying upon Morgan v. Regents of University of Cal.

(2000) 88 Cal.App.4th 52 (Morgan), the court determined that the County had 

established "that the person responsible for the decision to terminate plaintiff, Rod 

Torres, had no knowledge that [King] or anyone else had made a complaint about Greer 

and was unaware of the investigation into [King's] complaint." The trial court 

determined that King "offers nothing but rank speculation in response, and this is not 

specific or substantial enough to meet his burden." 

 The trial court also determined that Torres had legitimate, non-retaliatory 

reasons for recommending King's dismissal. The court stated: "It is undisputed that his 

evaluation in July, 2008, indicated [King] needed improvement. He had to be asked three 

times to turn in his time card, and it wasn't signed. Plaintiff omitted information from 

phone messages, inspection requests, and applications and made fee calculation errors." 

The court observed that "[a]t best, plaintiff complains that he received no training and 
7 

was assigned to difficult assignments. But there is no indication that this occurred 

because of his complaint." King appeals. 

DISCUSSION 

Standard of Review 

 We review an order granting summary judgment de novo. (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We apply the same rules and 

standards as the trial court, but "'. . . are not bound by the trial court's stated reasons or 

rationales. . . .'" (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 

430, 436.) Summary judgment must 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." (Code Civ. Proc., § 437c, subd. (c).) "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, fn. omitted.) We view the facts in the 

light most favorable to the nonmoving party and assume that, for purposes of our 

analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County 

Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) 

First Cause of Action for Retaliation 

1. Shifting Burdens in Retaliation Cases 

King contends the County violated FEHA by dismissing him from 

probation in retaliation for his complaints about Greer. As the County points out, a 

probationary employee ordinarily can be terminated without good cause, notice or a 

hearing. (California School Employees Assn. v. Governing Bd. of East Side Union High 

School Dist. (2011) 193 Cal.App.4th 540, 543, fn. 2; see Phillips v. Civil Service Com. 

(1987) 192 Cal.App.3d 996, 1000 ["[a] probationary employee of a public agency may be 

dismissed without a hearing and without judicially cognizable good cause"].) It is 

unlawful, however, to retaliate against an individual who has complained about, or filed a 

complaint regarding, sexual harassment or hostile work environment. (§ 12940, subd. 

(h).) 
8 

 Because plaintiffs in employment retaliation cases generally lack direct 

evidence of the employer's retaliatory intent, "courts rely on a system of shifting burdens 

to aid the presentation and resolution of such claims." (Morgan, supra, 88 Cal.App.4th at 

p. 68.) Under the three-part test developed in McDonnell Douglas Corp. v. Green (1973) 

411 U.S. 792, "(1) the complainant must establish a prima facie case of [retaliation]; (2) 

the employer must offer a legitimate reason for [its] actions; (3) the complainant must 

prove that this reason was a pretext to mask an illegal motive." (Clark v. Claremont 

University Center (1992) 6 Cal.App.4th 639, 662.) 

 To establish a prima facie case of retaliation, a plaintiff must show that he 

engaged in a protected activity, that his employer subjected him to an adverse 

employment action, and that a "causal link" existed between the protected activity and the 

employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the 

plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises and 

the burden shifts to the employer to rebut the presumption with evidence that its action 

was taken for a legitimate reason. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-

356; Yanowitz, at p. 1042.) If the employer does so, the presumption of retaliation 

disappears, and the burden shifts back to the plaintiff, who must offer evidence 

demonstrating that the employer's justification is a pretext for retaliation, or offer 

additional evidence of retaliation. (Guz, at p. 356; Yanowitz, at p. 1042; McRae v. 

Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389 

(McRae).) 

 "[W]hether or not a plaintiff has met his or her prima facie burden, and 

whether or not the defendant [employer] has rebutted the plaintiff's prima facie showing, 

are questions of law for the trial court, not questions of fact for the jury." (Caldwell v. 

Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).) In other 

words, "if the plaintiff cannot make out a prima facie case, the employer wins as a matter 

of law. If the employer cannot articulate a nondiscriminatory reason for the adverse 

employment decision, the plaintiff wins as a matter of law. In those instances, no fact 

finding is required, and the case will never reach a jury." (Id. at p. 204.) 
9 

2. Prima Facie Case of Retaliation 

There is no dispute that King engaged in a protected activity when he 

reported Greer's misconduct, and that he suffered an adverse employment action when he 

was dismissed from probation. The dispute centers on whether King has met his prima 

facie burden of showing that a causal link existed between the two. Direct evidence of 

retaliatory intent is not required to prove causation. (Flait v. North American Watch 

Corp. (1992) 3 Cal.App.4th 467, 478.) Rather, "'[t]he causal link may be established by 

an inference derived from circumstantial evidence, "such as the employer's knowledge 

that the [employee] engaged in protected activities and the proximity in time between the 

protected action and allegedly retaliatory employment decision."' [Citation.]" (Fisher v. 

San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.) This burden is "not 

onerous" and the evidence required to sustain it is minimal. (Heard v. Lockheed Missiles 

& Space Co. (1996) 44 Cal.App.4th 1735, 1751; Caldwell, supra, 41 Cal.App.4th at p. 

197.) 

 The County asserts that King cannot show a causal link because the 

uncontroverted evidence established that Torres was unaware of the protected activity 

when he recommended King's dismissal. The County relies heavily upon Morgan, in 

which the plaintiff alleged that his layoff was due to racial discrimination. After an 

arbitrator found that legitimate business reasons motivated the layoff, the plaintiff 

unsuccessfully applied to be rehired, and filed an employment discrimination action. (88 

Cal.App.4th at p. 62.) The Court of Appeal concluded that summary judgment was 

proper because there was no evidence that plaintiff was qualified for the positions he had 

sought or that the decision-makers who denied his applications knew of his prior 

discrimination complaint. (Id. at pp. 72-80.) Although plaintiff established that certain 

employees were aware of the complaints, he was unable to show that any of those 

employees were involved in the various departments' decisions not to hire him. (Id. at p. 

70.) The court observed that "each of the individuals who decided not to hire [plaintiff] 

for a particular position disclaimed knowledge of the fact that [he] had previously filed a 
10 

grievance against the [employer]. Without such knowledge, these individuals could not 

have acted in retaliation for [plaintiff's] filing of the grievance." (Id. at p. 74.) 

 The difference here is that Torres was not the only individual involved in 

King's dismissal. As King's supervisor, Torres had authority to recommend King's 

rejection from probation, but that decision had to be approved at a higher level. The fire 

marshal admitted during her deposition that "[a] lot of [dismissal] decisions are based on 

recommendations from . . . direct supervisors. So again, there's multiple people included 

in the decision-making process." She acknowledged that if the fire chief said we are not, 

you know, dismissing this person, then he would not be dismissed. 

The Morgan court recognized that when employment decisions involve 

more than one level of review, "the final decision may be influenced by the 

discriminatory intent of individuals playing a role at any point in the decisionmaking 

process." (Morgan, supra, 88 Cal.App.4th at p. 74, italics added.) King established that 

the fire marshal, as the head of the Bureau, was aware of the nature of the protected 

activity and of the investigation. She also was the principal target of Greer's 

inappropriate comments. Following the investigation, the fire marshal reassigned King 

and Coffey to Torres for supervision and training. Less than two months later, she 

authorized King's dismissal. Given the fire marshal's knowledge of King's complaints 

and her personal involvement in reassigning and dismissing King within a two-month 

period, we conclude that King made the "minimal" evidentiary showing necessary to 

sustain a prima facie case of retaliation. (See McRae, supra, 142 Cal.App.4th at p. 388; 

Caldwell, supra, 41 Cal.App.4th at p. 197.) 

 3. Legitimate, Non-Retaliatory Reason for Dismissal 

Once King established a prima facie case of retaliation, the burden shifted 

to the County to show a legitimate, non-retaliatory reason for his dismissal. (Caldwell, 

supra, 41 Cal.App.4th at p. 201.) This is a burden of production, not persuasion. (Ibid.) 

The employer need not persuade the court that it was actually motivated by the proffered 

reasons. It is only required to raise a genuine issue of fact as to whether it retaliated 

against the employee, by setting forth admissible evidence of its reasons for the 
11 

dismissal. (Id. at pp. 200-201.) The employer's explanation need not be "sound, fair, or 

correct, but only colorable enough that a rational jury could believe it to have been the 

employer's true motivation. [Citation.]" (Reeves v. Safeway Stores, Inc. (2004) 121 

Cal.App.4th 95, 112, fn. 12.) 

 The County proffered substantial evidence of King's substandard 

performance during his probation. This included evidence that King exercised poor 

judgment by driving a County vehicle while experiencing night blindness, failing to 

report the outcome of a brush fire, making numerous mistakes at the public counter, 

failing to sign and submit his timecard in a timely fashion and leaving the office without 

properly "closing" the counter. King acknowledges that when he was dismissed, Torres 

showed him two calculation errors he had made at the counter. This evidence, if believed 

by a jury, could reasonably support a judgment in the County's favor. We conclude that 

the County satisfied its burden of articulating a legitimate, non-retaliatory reason for 

King's dismissal. 

4. No Triable Issue as to Intentional Retaliation 

 After the County met its burden, the presumption of retaliation "simply 

drops out of the picture" and the burden shifts back to King to demonstrate a triable issue 

of material fact that the County's proffered justification was mere pretext. (St. Mary's 

Honor Center v. Hicks (1993) 509 U.S. 502, 510-511; McRae, supra, 142 Cal.App.4th at 

pp. 388-389.) King cannot satisfy this burden simply by submitting evidence that the 

County's decision was wrong or unwise. He must demonstrate that its proffered reasons 

were so inherently implausible that a reasonable factfinder could rationally find them 

unworthy of credence, and infer that the County did not act for the stated legitimate 

reasons. (McRae, at pp. 388-389.) Because King has no direct evidence of a retaliatory 

reason for his termination, he must introduce "specific" and "substantial" circumstantial 

evidence raising a triable issue of material fact that the County was more likely than not 

motivated by a discriminatory reason. (Morgan, supra, 88 Cal.App.4th at pp. 68-69.) 

King has not met this burden. 
12 

 First, King contends that a triable issue exists regarding whether Torres or 

the fire marshal was the decisionmaker in dismissing him from probation. Although the 

fire marshal's involvement in his dismissal was relevant to assess whether King had 

established a prima facie case, it did not by itself create a triable issue as to whether the 

County, having presented legitimate reasons for the dismissal, acted with retaliatory 

intent. King has no evidence that the fire marshal did anything more than "rubber stamp" 

Torres's recommendation to dismiss King from probation. Without any additional 

evidence, a jury would have to speculate that the fire marshal approved Torres's 

recommendation, not because of the reasons given by Torres, but because she had a 

retaliatory motive due to her knowledge of the complaints about Greer. A plaintiff's 

"'suspicions of improper motives . . . primarily based on conjecture and speculation' are 

not sufficient to raise a triable issue of fact to withstand summary judgment." (Kerr v. 

Rose (1990) 216 Cal.App.3d 1551, 1563-1564.) 

 Next, King asserts that a triable issue exists regarding whether Torres was 

aware of the complaints about Greer when he recommended King's dismissal. Torres 

adamantly denies having any knowledge of the complaints or the investigation until King 

filed this lawsuit. King testified that, to his knowledge, no one at the Department ever 

said or wrote anything indicating that the complaints were the reason for his dismissal. 

King further admitted that he has no specific information that Torres ever knew about the 

complaints. His theory is that Torres must have known because at least one other 

employee, Inspector Martinez, told Coffey that he had heard that she and King had "told 

on" Greer. The County maintains that this statement is inadmissible hearsay, but even if 

it is admissible, it does not create a triable issue that Greer also heard about the 

complaints and then retaliated based on such gossip. "[M]ere workplace gossip is not a 

substitute for proof." (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 521.) 

 Finally, King devotes much of his brief to explaining why all the reasons 

given for his rejection from probation were illogical, weak or lacked merit, and why he 

was "on track" to satisfactorily complete his probation. He is correct that evidence 

showing that the employer's claimed reason for dismissal is false may "suggest that the 
13 

employer seeks to conceal the real reason for its actions, and this in turn may support an 

inference that the real reason was unlawful." (Mamou v. Trendwest Resorts, Inc. (2008) 

165 Cal.App.4th 686, 715.) In Mamou, for example, the court determined that the 

evidence supported such an inference because the employer "never rested on a single 

coherent explanation for its firing of [the plaintiff], and that several if not all of its 

explanations were, to put it mildly, questionable." (Id. at p. 716.) That is not the case 

here. 

 During his 2008 probationary performance review, King acknowledged that 

he needed to improve in certain areas. At his deposition, he admitted certain deficiencies 

in his performance, including making "[a]n occasional mistake at the counter" and 

miscalculating fees on three or four occasions. King also admitted that, except for 

creating an organizational chart, he was not assigned tasks above his ability level. He 

claims that certain criticisms of his performance were mistaken or unfair, but a "plaintiff's 

subjective beliefs in an employment . . . case do not create a genuine issue of fact; nor do 

uncorroborated and self-serving declarations." (King v. United Parcel Service, Inc. 

(2007) 152 Cal.App.4th 426, 433; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 

Cal.App.4th 798, 816 ["[A]n employee's subjective personal judgments of his or her 

competence alone do not raise a genuine issue of material fact"].) The plaintiff's 

evidence must relate to the motivation of the decisionmakers to establish, by 

nonspeculative evidence, an actual causal link between the prohibited activity and 

dismissal. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.) 

 There is no question that the Department's decision to assign King to a 

training officer who was causing "problems" and who was unhappy with the assignment 

placed him in a difficult situation. That the Department could have done more to prevent 

the misconduct in the first place does not mean that it retaliated against King once the 

complaints were made. The record reflects that the County investigated the complaints 

and, as a result, transferred him to a new supervisor. King has no evidence that anyone in 

the Department thought Greer's behavior was appropriate and should not have been 
14 

reported. To the contrary, even Greer admits that King and Coffey were placed in a 

"hostile work environment." 

 King did introduce evidence that Greer thought King was performing 

satisfactorily before the transfer, and that coworker Enneking believed King's 

performance at the counter was satisfactory notwithstanding some mistakes. King further 

claimed that after the investigation, he received the "cold shoulder" from other coworkers 

and did not receive appropriate training from Torres. This evidence does not, however, 

refute the uncontroverted evidence that King displayed performance deficiencies while 

working under Torres's supervision. It also does not demonstrate a causal link between 

the complaints and King's dismissal. At best, it shows that Torres and Greer had different 

training styles and that Torres was more critical of King's performance issues than 

Enneking. The trial court properly concluded that the lack of any nonspeculative 

evidence linking the complaints to the dismissal defeats King's retaliation claim. 

Second Cause of Action for Wrongful Termination 

 King's second cause of action alleges that he was wrongfully terminated in 

violation of the public policy embodied in FEHA. The County correctly observes that 

section 815, subdivision (a) abolishes common law tort liability for public entities, 

including tort liability for wrongful termination in violation of public policy. (Miklosy v. 

Regents of University of California (2008) 44 Cal.4th 876, 899-900.) Miklosy affirmed a 

judgment of dismissal after the sustaining of a demurrer, stating that the defendant public 

entity could not be liable for wrongful termination in violation of a public policy based 

on retaliation. (Id. at pp. 899-900, 903.) Notwithstanding this immunity, however, 

King's failure to establish a triable issue of material fact regarding his retaliation claim 

under FEHA similarly defeats his wrongful termination claim. 

Third Cause of Action for Breach of Contract 

 King's third cause of action alleges that his probationary employment 

contract with the County provided that he would not be terminated for reasons which 

violate public policy. In addition to the previously discussed retaliation allegations, King 

asserts the County violated section 19173, subdivision (b), which states an employee 
15 

dismissed or rejected from probation must be given a written "statement of the reasons 

for the rejection." As the County points out, section 19173 does not create a private right 

of action or any civil remedy in damages for its violation. (See Moradi-Shalal v. 

Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 300 ["The fact that neither the 

Legislative Analyst nor the Legislative Counsel observed that the new act created a 

private right of action is a strong indication the Legislature never intended to create such 

a right of action"].) 

 King further contends that the County did not follow certain procedural 

requirements set forth in the County personnel rules and the union contract. Once again, 

King has not shown that such procedural violations, even if true, create a private right of 

action. Typically, such procedural and due process issues must be raised in an 

administrative writ proceeding. (Code Civ. Proc., § 1094.5; see Mola Development Corp. 

v. City of Seal Beach (1997) 57 Cal.App.4th 405, 411 ["Mandamus proceedings allow 

courts to flesh out the issues and factual components of the dispute, including issues of 

procedural fairness"]; Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 

1729-1730 [administrative mandamus review under section 1094.5 extends to the 

question of whether there was a "fair administrative hearing"].) In the absence of any 

triable issues of material fact, the trial court appropriately granted the County's motion 

for summary judgment. 

DISPOSITION 

 The judgment is affirmed. The County shall recover its costs on appeal. 

 NOT TO BE PUBLISHED.

 PERREN, J. 

We concur: 

 GILBERT, P. J. 

 YEGAN, J. 
16 

Rebecca S. Riley, Judge 

Superior Court County of Ventura 

______________________________ 

 Law Office of Allen Broslovsky, Allen Broslovsky for Plaintiff and 

Appellant. 

 Wisotsky, Procter & Shyer, Alan E. Wisotsky, Jeffrey Held for Defendant 

and Respondent.