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Shelton v. City of Manhattan Beach9/28/2004
t., supra, 41 Cal.App.4th at p. 203; accord, Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 150.) Here, defendants attempt to show that one or more of plaintiff's prima facie elements is lacking.
Plaintiff alleges the city discriminated against him on the basis of his sexual orientation by: failing to investigate his discrimination complaints; attempting to terminate him for "job abandonment"; investigating his use of the department credit card; banning him from the station; requiring him to work when the other officers had the time off to travel to a team-building workshop; and piling assignments on him. There is no dispute as to the first element of plaintiff's claim, that he is a member of a protected class. However, the trial court found there was no triable issue of material fact as to whether plaintiff: was intentionally discriminated against because of his sexual orientation; suffered an adverse employment action; and was qualified for the position given his asserted permanent disability. On appeal, defendants contend: plaintiff did not suffer any adverse employment action; he was permanently disabled and therefore not qualified to perform peace officer duties; and any discrimination could not have been intentional because no one knew he was gay. We find there is a triable issue of material fact as to whether plaintiff suffered an adverse employment action under circumstances suggesting a discriminatory motive. We further conclude defendants' remaining arguments are without merit.
a. adverse employment action
In Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 355, the California Supreme Court briefly described an adverse employment action as including a termination, demotion, or denial of an available job. Defendants have consistently advocated that the meaning of an "adverse employment action" within the Fair Employment and Housing Act context should be limited to termination, demotion, or denial of an available job. The relevant language defendants cite to in Guz is, "Generally, the plaintiff must provide evidence that . . . he suffered an adverse employment action, such as termination, demotion, or denial of an available job . . . ." (Ibid.) Defendants' argument that Guz restricts the scope of an adverse employment action under the Fair Employment and Housing Act to "termination, demotion, or denial of an available job" is without merit. As can be noted, the Supreme Court preceded the listing of "termination, demotion, or denial of an available job" with the words "such as." (Ibid.) Hence, the cited discussion in Guz was illustrative of what constitutes an adverse employment action-not restrictive. Moreover, the Supreme Court in Guz was not addressing the issue of the extent of an adverse employment action for purposes of the Fair Employment and Housing Act. Because that issue was not before the court, Guz is not authority for the proposition that an adverse em
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