173 Plaintiff’s Objections to Proposed Statement Of Decision BC435600 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 William J. Becker, Jr., Esq. (SBN 134545) THE BECKER LAW FIRM 11500 Olympic, Blvd., Suite 400 Los Angeles, California 90064 Phone: (310) 636-1018 Fax: (310) 765-6328 Attorneys for Plaintiff, David Coppedge SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT DAVID COPPEDGE, an individual; Plaintiff, vs. JET PROPULSION LABORATORY, form unknown; CALIFORNIA INSTITUTE OF TECHNOLOGY, form unknown; GREGORY CHIN, an Individual; CLARK A. BURGESS, an Individual; KEVIN KLENK, an Individual; and Does 1 through 25, inclusive, Defendants. Case No. BC435600 The Honorable Ernest M. Hiroshige, Dept. 54 PLAINTIFF DAVID COPPEDGE’S OBJECTIONS TO DEFENDANT’S PROPOSED STATEMENT OF DECISION [Cal. Rules of Court, Rule 3.1590, subd. (g)] Part 5 OF 7 B. Objections to Conclusions of Law Parag. Statement Objection ¶ 1 A plaintiff bears the burden of proving each fact that is essential to his claim for relief. Cal. Evid. Code § 500 (“Ex- cept as otherwise provided by law, a party has the burden of proof as to Plaintiff hereby incorporates by refer- ence, as though fully set forth herein, all prior objections. Objection. The Court determined
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William J. Becker, Jr., Esq. (SBN 134545)
THE BECKER LAW FIRM
11500 Olympic, Blvd., Suite 400
Los Angeles, California 90064
Phone: (310) 636-1018
Fax: (310) 765-6328
Attorneys for Plaintiff, David Coppedge
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DAVID COPPEDGE, an individual;
Plaintiff,
vs.
JET PROPULSION LABORATORY, form
unknown; CALIFORNIA INSTITUTE OF
TECHNOLOGY, form unknown;
GREGORY CHIN, an Individual; CLARK
A. BURGESS, an Individual; KEVIN
KLENK, an Individual; and Does 1 through
25, inclusive,
Defendants.
Case No. BC435600
The Honorable Ernest M. Hiroshige, Dept. 54
PLAINTIFF DAVID COPPEDGE’S
OBJECTIONS TO DEFENDANT’S
PROPOSED STATEMENT OF
DECISION
[Cal. Rules of Court, Rule 3.1590, subd. (g)]
Part 5 OF 7
B. Objections to Conclusions of Law
Parag.
Statement Objection
¶ 1 A plaintiff bears the burden of proving
each fact that is essential to his claim
for relief. Cal. Evid. Code § 500 (“Ex-
cept as otherwise provided by law, a
party has the burden of proof as to
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. The Court determined
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each fact the existence or nonexistence
of which is essential to the claim for
relief or defense that he is asserting.”).
Plaintiff had met this burden in its Or-
der on Defendant’s Motion for Sum-
mary Judgment and is not entitled to
revisit whether Coppedge proved a
prima facie case of discrimination at
trial. See Caldwell v. Paramount Uni-
fied Sch. Dist., (1995) 41 Cal. App. 4th
189, 204 (“… [I]f and when the case is
submitted to the [fact-finder], the con-
struct of the shifting burdens “drops
from the case,” and the [fact-finder] is
left to decide which evidence it finds
more convincing, that of the employ-
er’s discriminatory intent, or that of the
employer’s [protected category]-
neutral reasons for the employment
decision.”). In this case, the Court’s
order on Defendant’s Motion for
Summary Judgment determined as a
matter of law that Coppedge met his
burden of establishing a prima facie
case of dis-crimination. Accordingly,
the burden-shifting construct “drops
from the case,” and the only issue
properly put to the Court in this case as
the fact-finder on the issue of employ-
ment discrimination is whether JPL’s
decision to demote and to discipline
Coppedge was motivated by religion;
the shifting burdens of proof are irrele-
vant to the Court’s deliberations. Con-
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sequently, the Court is not entitled to
consider McDonnell Douglas’s three-
stage burden of proof. See id. at 204.
See also E.E.O.C. v. Avery Dennison
Corp., (6th Cir. 1997) 104 F.3d 858,
861 (“The prima facie case is not the
final inquiry, but rather the first prong
of analysis which defeats a motion for
dismissal prior to trial.”) Because the
Court determined that Plaintiff had es-
tablished a prima facie case on a sum-
mary judgment, the Court, seated as
the trier of fact, cannot then reverse its
earlier ruling. See Caldwell, supra. In-
deed, a[n employment discrimination]
plaintiff’s prima facie burden is mini-
mal. The amount of evidence that must
be produced in order to create a prima
facie case is very little.” Id., at 197 (in-
ternal punctuation and citations omit-
ted). Plaintiff presented a preponder-
ance of evidence far beyond the mini-
mum threshold required to establish a
prima facie case of discrimination and
retaliation.
As demonstrated by the evidence re-
ferred to herein, the preponderance of
the evidence establishes that (1) Wei-
senfelder complained to Chin that she
did not wish to discuss religion with
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Coppedge at work because it made her
uncomfortable; (2) Prompted by Wei-
senfelder’s complaint that she did not
wish to discuss religion with
Coppedge, Chin ordered Coppedge to
stop “pushing” his religious views, in-
cluding the perceived religious view of
intelligent design, on co-workers; (3)
Huntley conducted an HR investiga-
tion in which, on the basis of state-
ments made to her by Weisenfelder,
Vetter and Chin, she concluded that
Coppedge had crossed a line discuss-
ing his religious interests and loaning
out intelligent design DVDs; (4) Wei-
senfelder, Vetter, Chin and Edgington
all perceived intelligent design to be a
religious concept they rejected; (5) on
the basis of Huntley’s conclusions, she
recommended Coppedge be disci-
plined through the issuance of a writ-
ten warning and removal as team lead;
(6) Coppedge’s supervisors, Burgess
and Klenk, adopted and ratified Hunt-
ley’s conclusions and recommenda-
tions; (7) Coppedge was issued a writ-
ten warning in which he was ordered
not to share his “personal views,” in-
cluding his religious views and per-
ceived religious interest in intelligent
design, with other co-workers; (8)
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Coppedge was removed from the team
lead position during a meeting in
which he was also ordered by Burgess
and Klenk to refrain from discussing
his personal views, i.e., religion and
intelligent design, with co-workers; (9)
Coppedge was not told he was being
removed from team lead due to any
other specific complaint against him;
(10) team lead carried with it substan-
tial duties and was recognized as such
by JPL, so much so that the team lead
transition was formally announced to
the entire Cassini project; (11)
Coppedge was humiliated by the de-
motion; and (12) Coppedge tried to
appeal the decision, but was met with a
standardless process, marked by long
delays in communications with
Coppedge and responsive action, re-
sulting in a meeting with Klenk, the
same decision-maker who had earlier
sanctioned disciplining Coppedge.
¶ 2 Coppedge bears the burden of proving
a prima facie case of discrimination.
To establish a prima facie case,
Coppedge must show that (1) he be-
longs to a protected category; (2) he is
otherwise qualified to do his job; (3)
he suffered an adverse employment
action; and (4) there are circumstances
Plaintiff hereby incorporates by refer-
ence here his objection, supra, to De-
fendant’s proposed conclusion of law,
¶ 1.
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raising an inference of discrimination
based on the protected category (here,
religion). See Guz v. Bechtel Nat’l,
Inc., 24 Cal. 4th 317, 355 (2000).
¶ 3 If Coppedge meets the burden of estab-
lishing a prima facie case, the burden
shifts to Caltech to articulate a legiti-
mate, nondiscriminatory reason for its
adverse employment decision. Cald-
well v. Paramount Unified Sch. Dist.,
41 Cal. App. 4th 189, 197 (1995).
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Plaintiff particularly incorporates by
reference here his objection, supra, to
Defendant’s proposed conclusion of
law, ¶ 1.
¶ 4 After Caltech provides its legitimate,
nondiscriminatory reason, Coppedge
must produce specific, substantial evi-
dence that the actions in question were
taken because of his religious views.
Guz, 24 Cal. 4th at 361 (“[T]here must
be evidence supporting a rational in-
ference that intentional discrimination,
on grounds prohibited by the statute,
was the true cause of the employer’s
actions.”) (emphasis in original);
Caldwell, 41 Cal. App. 4th at 195 (“In
order to prevail under the disparate
treatment theory, an employee must
show that the employer harbored a dis-
criminatory intent.”); Ibarbia v. Re-
gents of the Univ. of Cal., 191 Cal.
App. 3d 1318, 1330 (1987) (rejecting
“highly speculative allegations without
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This proposed conclusion
of law is an incomplete statement of
law. Code Civ. Proc. § 634. Under the
Fair Employment and Housing Act
(“FEHA”), Government Code section
12940(a) provides that it is an unlawful
employment practice “[f]or an em-
ployer, because of the … religious
creed … of any person, to … bar or to
discharge the person from employment
… or to discriminate against the person
… in terms, conditions, or privileges of
employment.” (Emphasis added).
Section 12926, subdivision (m), pro-
vides: “ ‘[R]eligious creed includes a
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any real substantiation”); Crosier v.
United Parcel Serv., Inc., 150 Cal.
App. 3d 1132, 1139 (1983)
(“[S]uspicions of improper motives ...
based on conjecture and speculation ...
[do] not show that the reasons for ...
discharge were pretextual … “), disap-
proved of in part on other grounds by
Foley v.Interactive Data Corp., 47 Cal.
3d 654 (1988).
perception that the person has any of
those characteristics or that the person
is associated with a person who has, or
is perceived to have, any of those char-
acteristics.” “[C]onceptually the theory
of ‘disparate treatment’ . . . is the most
easily understood type of discrimina-
tion. The employer simply treats some
people less favorably than others be-
cause of their race, color, religion, sex
or national origin” Mixon v. Fair Em-
ployment and Housing Com. (1987)
192 Cal.App.3d 1306, 1317, quot-
ing Teamsters v. United States (1977)
431 U.S. 324, 335-336, fn. 15. Under
present law, “[w]hile a complainant
need not prove that [discriminatory]
animus was the sole motivation behind
a challenged action, he must prove by
a preponderance of the evidence that
there was a ‘causal connection’ be-
tween the employee’s protected status
and the adverse employment decision.”
Id. at 1319.
The Court is advised that the Califor-
nia Supreme Court has granted review
in the case of Harris v. City of Santa
Monica, S181004, and has heard oral
argument on the legal question of
“mixed motive” causation.
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A preponderance of evidence in this
case establishes a causal connection
between Coppedge’s protected status
and the adverse employment decisions.
Plaintiff incorporates by reference
herein the objections to Defendant’s
proposed findings of fact ¶¶ 68, 89,
and Section IB, conclusions of law, ¶¶
4, 14 (a), and Section II, ¶ 19, 20 (a),
20 (b), 20 (c), 21.
¶ 5 The ultimate burden lies with
Coppedge to show that the actions in
question constituted religious discrim-
ination in violation of FEHA; that is, to
show that discriminatory intent was a
motivating factor in an adverse em-
ployment decision by Caltech. Cald-
well, 41 Cal. App. 4th at 205.
¶ 6 The Court finds that Coppedge has
failed to prove by a preponderance of
the evidence that the conduct he alleg-
es supports a prima facie case of reli-
gious discrimination or perceived-as
religion discrimination.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. Plaintiff particularly incor-
porates by reference herein his objec-
tion, supra, to Defendant’s proposed
conclusion of law, ¶ 1.
¶ 7 As the Court discusses in more detail
below, the Court finds that, other than
Coppedge’s layoff (which is non-
actionable because there is no evidence
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections. The preponderance
of the evidence shows that Coppedge
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to show it was due to discrimination),
none of the conduct he identifies (the
written warning, the removal of his
informal lead designation, his 2009
and 2010 ECAP; and his other com-
plaints, e.g., regarding the appeal pro-
cess and Huntley’s investigation), tak-
en individually or collectively, quali-
fies as an adverse employment action.
An employment decision is actionable
only if it results in “a substantial ad-
verse change in the terms and condi-
tions” of employment. Akers v. Cnty.
of San Diego, 95 Cal. App. 4th 1441,
1455 (2002) (emphasis added).
was discriminated against on the basis
of an erroneous perception that he was
“pushing” his religious views on co-
workers, that he was demoted from the
team lead position, which was a posi-
tion of privilege signifying a high level
of trust, such that his removal material-
ly affected his relationships within
Cassini, and that restrictions were
placed on him that were so broad and
ambiguous as to deny him expressive
rights enjoyed by all other employees.
Objection. Plaintiff hereby incorpo-
rates particularly by reference herein
his objection to Defendant’s proposed
finding of fact, ¶ 8, and conclusion of
law, ¶ 1. Indeed, evidence also exists
that Coppedge was terminated on the
basis of discrimination as reflected by
the efforts made in March and April
2009 to seek his removal from Cassini
Plaintiff incorporates by reference
herein the objections to Defendant’s
proposed finding of fact, ¶¶ 19 and 89.
Plaintiff objects on the further ground
that Coppedge’s removal as team lead
constituted a substantial material
change in his employment status
(Plaintiff hereby incorporates by refer-
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ence his Objection, supra, to Defend-
ant’s proposed finding of fact, ¶ 8, of
Defendant’s proposed Statement of
Decision).
Plaintiff objects on the further ground
that the written warning constituted a
substantial material change in his em-
ployment status. (Plaintiff hereby in-
corporates by reference his objection
to Defendant’s proposed finding of
fact, ¶¶ 7-8, ¶ 77, ¶ 52 of Defendant’s
proposed Statement of Decision). 4/3
p.m., 239:15-23 (Burgess conceding he
knew at the time the Written Warning
was issued “it would have an adverse
effect on [Coppedge’s] employment
status.”)
Plaintiff objects on the further ground
that the case cited, Akers v. Cnty. of
San Diego (2002) 95 Cal. App. 4th
1441, 1455, applies to retaliation
claims, not to discrimination claims.
“… [T]o be actionable, the retaliation
must result in a substantial adverse
change in the terms and conditions of
the plaintiff’s employment.” Id. (Em-
phasis added).
¶ 8 The Court further finds that Caltech
met its burden of providing a legiti-
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
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mate, nondiscriminatory reason for its
actions, including the layoff. Caldwell,
41 Cal. App. 4th at 196.
all prior objections.
Objection. This proposed conclusion
of law is incomplete and therefore am-
biguous. (Code Civ. Proc. § 634.). It
omits specific probative findings going
to the purported “legitimate, nondis-
criminatory reason” for Caltech’s ac-
tions. See Green v. Smith (1968) 261
Cal. App. 2d 392, 397-98 (probative
findings must support the conclusion
drawn).
¶ 9 The Court further finds that Coppedge
failed to produce specific, substantial
evidence that any of the actions in
question actually were taken because
of his religious views. Guz, 24 Cal. 4th
at 361.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. Plaintiff particularly incor-
porates by reference here his objec-
tions to Defendant’s proposed conclu-
sion of law, ¶ 4.
The preponderance of evidence in this
case demonstrated that Caltech’s ad-
verse employment actions were moti-
vated by Coppedge’s interactions with
co-workers relating to his religious and
perceived religious beliefs. This con-
clusion is substantiated by, inter alia:
(1) The written warning issued to
Coppedge and its commandment not to
discuss religion or other “personal
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views” with coworkers, devoid of any
reference to other purposes; and (2) the
HR interview notes, making multiple
references to criticism of Coppedge’s
religious discussions and omitting any
reference to alternative explanations—
e.g., “customer” dissatisfaction with
Coppedge’s technical abilities.
¶ 10(a) The Layoff.
a. The Court finds that Caltech estab-
lished a legitimate nondiscriminatory
reason for Coppedge’s layoff: it laid
Coppedge off based on objective crite-
ria that had nothing to do with his law-
suit. Specifically, the evidence shows
that Caltech has a detailed layoff poli-
cy, incorporating a layoff ranking pro-
cess, which Van Why carried out. The
evidence clearly shows that Patel, Cas-
tillo, and Wang were more qualified
than Coppedge regarding the skills
needed on the project going forward,
such as SCO/ITL, web servers, and
Linux, and that Coppedge had a histo-
ry of poor customer relationships, par-
ticularly in comparison to the other
System Administrators.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This proposed conclusion
of law mischaracterizes and is contra-
dicted by the probative evidence.
Plaintiff incorporates by reference
herein the objections to Defendant’s
proposed finding of fact, ¶ 89; Exh. 97,
e-mail from Aguilera to Curtis 4/7/09
(“Jhertaune and I met with Cab Bur-
gess this morning regarding David
Coppedge. Cab said he was notified by
Greg Chin D31 (Cassini Lead) that
Cassini wants David off the project
and they are pulling his funding due to
his conduct/interpersonal communica-
tions issues. Chin also informed Kevin
of this decision. Cab indicated that he
has no other work for David. Basically
we told Cab to discuss this matter with
Kevin, and come up with a strategy to
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approach Cassini management.”);
Exh. 227, pages 15-16, email Burgess
to Huntley 4/15/09 (“What I was think-
ing but may not have actually men-
tioned to him at the time is that the
next step, if it ever came to that, would
be a Final Written Warning. At that
point, termination could be one of the
choices we’d have to make.);
Exh. 154, email Burgess to Van Why
3/19/10 (“David Coppedge will proba-
bly have to move on because of the
budget reduction.”);
4/2 p.m. (Burgess) 215:16-22 (Q. …
“why, did you believe that David
Coppedge would probably be the per-
son that would be left out? A. We
heard there was a lot of strive in the
workplace and people were having dif-
ficult times with him. So I just didn’t
except that he would be successful in
staying on and supporting the project
once the project started sizing down.”)
(Klenk) 197:18-25 (“Q. You were
aware on march 19, 2010, that it was
Mr. Burgess’s position that David
Coppedge will probably have to move
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on because of the budget reduction
right? A. If you’re asking whether Mr.
Burgess was speculating that due to the
knowledge he has of Cassini and Da-
vid’s performance, that David would
be the one who has to move on, that
would be my understanding.”)
¶ 10 (b)(i) Coppedge failed to present evidence
that Caltech’s reason for Coppedge’s
layoff is a pretext for discrimination
(or retaliation).
(i) The evidence shows that Caltech
followed its established layoff policy.
Even if the criteria were considered
subjective, subjective criteria does not
give rise to an inference of discrimina-
tion (or retaliation), without more.
Hicks v. KNTV Television, Inc., 160
Cal. App. 4th 994, 1005 (2008) (“The
fact that [the] assessment was based
upon subjective criteria does not, by
itself, demonstrate pretext. . . . [T]here
is nothing inherently suspect in the use
of subjective criteria. ‘Indeed, subjec-
tive evaluations of a job candidate are
often critical to the decisionmaking
process, and if anything, are becoming
more so in our increasingly service-
oriented economy ...’ [A]bsent some
evidence that the station made its deci-
sions based upon race, the mere use of
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This conclusion of law mis-
states and mischaracterizes the evi-
dence. Cal. Civ. Proc. Code § 634.
Coppedge presented substantial evi-
dence of pretext. Plaintiff hereby in-
corporates by reference his objections
to Defendant’s proposed findings of
fact, ¶¶ 89-114 and to Defendant’s
conclusion of law ¶ 10(a).
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subjective criteria does not permit us to
second guess the employer’s business
judgment.”) (citations omitted). The
Court further finds that while subjec-
tive criteria may constitute circumstan-
tial evidence “[a]gainst the background
of the other evidence of pretext,” there
is no other evidence of pretext here.
Bergene v. Salt River Project Agric.
Improvement and Power Dist., 272
F.3d 1136, 1142 (9th Cir. 2001).
¶ 10 (b)(ii) (ii) There is no evidence that the rank-
ing was incorrect. To the extent
Coppedge has contended otherwise,
tills is at odds with his testimony and
constitutes speculation, which is insuf-
ficient to establish pretext. Martin v.
Lockheed Missiles & Space Co., 29
Cal. App. 4th 1718, 1735 (1994)
(plaintiffs “showing in the trial court
was insufficient to create more than
speculation that [the employer’s]
showing was pretextual or false”). The
evidence shows that Coppedge admits
the other System Administrators had
greater expertise than he had in needed
areas, including SCO/ITL, web serv-
ers, and Linux.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This conclusion of law mis-
states and mischaracterizes the evi-
dence. Cal. Civ. Proc. Code § 634.
Coppedge presented substantial evi-
dence of pretext showing the ranking
to be contrived. Plaintiff hereby in-
corporates by reference his objections
to Defendant’s proposed findings of
fact, ¶¶ 89-114 at to Defendant’s con-
clusion of law, ¶ 10(a).
¶ 10 (b)(iii) (iii) There is no evidence to suggest
that Van Why’s application of the
layoff ranking criteria or Conner’s in-
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
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put to the process were motivated by
anything other than legitimate factors.
The evidence shows that Van Why ad-
hered to Caltech’s layoff policy and
that Conner provided input based on
her personal experience with
Coppedge’s work and that of Cassini
managers. Conner never even dis-
cussed religion or politics with
Coppedge, and to the extent they dis-
cussed Intelligent Design, the interac-
tion was cordial (i.e. she borrowed,
and then bought a DVD); Coppedge
likewise presented no evidence sug-
gesting he ever had any discussions or
disputes on such topics with Van Why.
Objection. This conclusion of law mis-
states and mischaracterizes the evi-
dence. Coppedge presented substantial
evidence of pretext showing Van
Why’s and Conner’s actions to have
been built upon the desires of Mitchell
and Burgess to have Coppedge termi-
nated as early as March 2009 and that
the layoff criteria ranking process was
contrived and not based on objective
factors. Plaintiff incorporates by refer-
ence herein the objections to Defend-
ant’s proposed conclusion of law ¶
10(a). Further, evidence that Conner
never spoke to Coppedge about reli-
gion is irrelevant, because she was
merely an agent of Caltech’s decision
to terminate Coppedge on the basis of
Coppedge’s wrongful demotion law-
suit and disruption of the anti-
intelligent design and anti-Christianity
intolerance of co-workers.
Objection. This conclusion of law mis-
states and mischaracterizes the evi-
dence. Cal. Civ. Proc. Code § 634.
Coppedge presented substantial evi-
dence of pretext. Plaintiff hereby in-
corporates by reference his objections
to Defendant’s proposed findings of
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fact, ¶¶ 89-114 and to Defendant’s
conclusion of law, ¶ 10(a).
¶ 11 (a) Written Warning.
a. The Court finds that the written
warning was not an adverse employ-
ment action, as Coppedge did not ex-
perience any change in the terms of
conditions of his employment as a re-
sult of the written warning; much less
a substantial one. The evidence shows
that the warning was rescinded after
one year, and there is no evidence that
Coppedge was prevented from receiv-
ing a promotion or any other assign-
ment, during that year or after.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This conclusion of law mis-
states and mischaracterizes the sub-
stantial evidence that the written warn-
ing resulted in Coppedge’s loss of
terms, conditions and privileges, e.g.,
his team lead position and his expres-
sive rights. Coppedge was ordered at
the risk of termination to cease dis-
cussing his “personal views” with co-
workers, an order made so ambiguous
as to deny him any personal freedom
whatsoever, thus denying him expres-
sive rights, including the right to dis-
cuss alternative scientific creation the-
ories and his religious beliefs, held by
all other employees at JPL. Under
FEHA, an adverse employment action
is one that materially affects the terms,
conditions, or privileges of employ-
ment, and includes “adverse treatment
that is reasonably likely to impair a
reasonable employee’s job perfor-
mance or prospects for advancement or
promotion.” Yanowitz v. L’Oreal
USA, Inc. at 1055. That is fundamen-
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tally and unquestionably a material
change in the terms, conditions and/or
privileges of his employment.
¶ 11 (b) The Court finds that in any event, Cal-
tech met its burden of showing that it
issued the written warning to
Coppedge based on its good faith be-
lief that he violated Caltech’s Unlaw-
ful Harassment Policy and its Ethics
and Business Conduct Policy. Joaquin
v. City of L.A., 202 Cal. App. 4th
1207, 1223 (2012) (“If the employer
takes an adverse action based on a
good faith belief that an employee en-
gaged in misconduct, then the employ-
er has acted because of perceived mis-
conduct, not because of protected sta-
tus or activity. The relevant inquiry is
whether the [employer] believed [the
employee] was guilty of the conduct.
...”) (citation and quotation marks
omitted; first and second alterations
and emphasis in original).
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. This proposed conclusion
of law is incomplete and therefore am-
biguous. (Code Civ. Proc. § 634.). It
omits specific probative findings of
“good faith”—weighed against Plain-
tiff’s substantial evidence of bad
faith—needed to support such a con-
clusion. See Green v. Smith (1968)
261 Cal. App. 2d 392, 397-98 (proba-
tive findings must support the conclu-
sion drawn).
¶ 11 (c) The Court finds that Coppedge failed
to present evidence establishing that
Caltech’s reason for issuing the written
warning is pretextual. Huntley reason-
ably found, and the witnesses’ testi-
mony confirms, that Weisenfelder,
Vetter, and Edgington took issue with
Coppedge’s persistence and the fact
Objection. This proposed conclusion
of law misstates and mischaracterizes
the evidence. Cal. Civ. Proc. Code §
634. Coppedge presented substantial
evidence of pretext for the issuance of
the written warning. Caltech has pre-
sented absolutely no evidence that
Coppedge had behaved with persis-
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that he made them feel uncomfortable,
not the content of Coppedge’s beliefs.
There also is no evidence that Bur-
gess’s decision to take Huntley’s rec-
ommendation, and issue the written
warning to Coppedge, was motivated
by religious animus or hostility toward
intelligent design or Coppedge’s polit-
ical beliefs; they never had any disa-
greements regarding religion or poli-
tics; Burgess actually purchased sever-
al intelligent design DVDs from
Coppedge; and Coppedge admits that
Burgess had always treated him fairly
up to that point in time.
tence so as to justify the order restrict-
ing his expressive rights in the work-
place. The evidence showed that Hunt-
ley conducted a one-sided investiga-
tion, failing even to comply with Cal-
tech policy requiring her to allow
Coppedge to respond to the accusa-
tions made against him. Coppedge tes-
tified, and all evidence confirms, that
notwithstanding the self-serving con-
clusions reached by Weisenfelder, Vet-
ter, Edgington and Huntley, Coppedge
acted appropriately in all but his en-
counter with Edgington, and in that
incident, he apologized and never en-
gaged in any repeated act of arguing
with a coworker. Indeed, the evidence
shows that Edgington also argued, but
did not apologize for his emotional be-
havior, while managing to avoid
blame, even where the evidence
showed that Coppedge had agreeable
discussions about Proposition 8 with
other co-workers who did not share his
particular views on the political issue.
Coppedge presented substantial evi-
dence of pretext. Plaintiff hereby in-
corporates by reference his objections
to Defendant’s proposed findings of
fact, ¶ 7, 16, 81, 89, and conclusions of
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law, ¶ 10 (b)(i), 10 (b)(ii), 10 (b)(iii),
11 (c).
¶ 12 (a) Removal of Lead Duties.
a. The Court finds that Burgess’s deci-
sion to remove Coppedge’s informal
lead designation was not a demotion,
or an adverse employment act of any
kind. The undisputed evidence shows
that Coppedge’s pay, employee bene-
fits, and title remained the same. The
evidence establishes that the lead du-
ties did not constitute significant re-
sponsibilities, but rather, were infor-
mal, administrative in nature, and only
took (or should have taken) 10% of the
lead’s work time. While the lead inter-
acted with the customers, all SAs did
so as well. The evidence further estab-
lishes that the SAs did not need to be
mentored or coordinated, because they
were experienced in their work; in-
deed, the lead position was eliminated
in October 2010 when Conner took
over supervision of the SAs. Changes
in job duties are not actionable adverse
actions. See Thomas v. Dep ‘t of Carr.,
77 Cal. App. 4th 507, 511 (2000) (ac-
tion must “be more disruptive than ...
an alteration of job responsibilities”)
(citation and internal quotation marks
omitted).
Objection. This proposed conclusion
of law misstates and mischaracterizes
the evidence. Plaintiff hereby incorpo-
rates by reference here his objection to
Defendant’s proposed findings of fact,
¶¶ 7-8, 53.
As the Court stated in its final ruling
on summary judgment, “Taking into
account the totality of circumstances,
including Plaintiff’s ultimate termina-
tion, there is a triable issue of fact as to
whether Plaintiff’s demotion and the
negative performance evaluations were
a ‘substantial adverse change in the
terms and conditions’ of employment.”
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¶ 12 (b) The Court finds that Burgess’s deci-
sion was based on legitimate and non-
discriminatory reasons. The evidence
establishes that Burgess decided to re-
move Coppedge’s lead duties during
the April 13, 2009 meeting, based on a
series of work-related problems with
Coppedge (including his history of dif-
ficult customer relationships) that cul-
minated in Coppedge’s confrontational
behavior toward Klenk during the
meeting- the first time Burgess person-
ally had observed such behavior -
leaving Burgess uncomfortable having
Coppedge as lead SA.
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections, particularly, find-
ings of fact, ¶¶ 7-8, 53, 74-77, 89.
Objection. This proposed conclusion
of law misstates and mischaracterizes
the evidence. Cal. Civ. Proc. Code §
634. The evidence shows that HR rec-
ommended Coppedge be removed
from the team lead position (which, if
it were not a significant job function,
would not have been necessary) prior
to the April 13, 2009, meeting on the
basis of the findings of Huntley’s HR
investigation and not on the basis of
any other concerns. Exh. 97. Moreo-
ver, the assertion of these facts under-
mines and contradicts Defendant’s
contention that removal from the team
lead position was not a material change
in the terms and conditions of Plain-
tiff’s employment, for, if that were the
case, then it would not have necessary
for Coppedge to be removed.
The assertion that “Burgess decided to
remove Coppedge’s lead duties during
the April 13, 2009 meeting” is flatly
contradicted by the evidence. See Ex-
hibit 102, Certified Transcript of the
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April 13, 2009, meeting, 35:16-21 (“I
had a discussion with Greg on how to
deal with that rearrangement and he
and even HR suggested that when it
comes to any announcement that you
are taking on some other role other
than the lead that I should divorce my-
self from that so it’s not obvious to the
people who are hearing this that it’s
part of anything else. So I’ve asked
Greg to bring this up at his next team
meeting,…”); Id. at 36:18-19
(Coppedge: “You were going to do this
anyway?” Burgess: “No, this is direct-
ly a result of all the interviews that HR
conducted.”)
¶ 12 (c) The Court further finds that Coppedge
failed to present evidence establishing
that these reasons are pretextual. There
is no evidence to show that Burgess
made the decision to remove
Coppedge’s lead duties prior to the
meeting. To the contrary, Burgess’s
testimony that he made the decision at
the meeting is credible, particularly
given that this was the first time Bur-
gess personally had observed
Coppedge acting in this manner and
that Coppedge’s behavior was similar
to what Cassini project members had
complained about over the years. Bur-
Plaintiff hereby incorporates by refer-
ence here his objections to Defendant’s
proposed conclusion of law, ¶ 12 (b).
Defendant’s proposed “finding” that
Burgess’s testimony was credible is
refuted by the objective evidence. Bur-
gess had known and worked with
Coppedge for 12 years, writing or
overseeing positive performance eval-
uations for those years. To suggest that
Burgess had never seen Coppedge be-
have in the manner in which he ob-
served him at the April 13, 2009, meet-
ing is ludicrous. More significantly,
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gess provided a credible explanation
for Coppedge’s positive performance
evaluations in the past; namely, that he
was trying to minimize their negativity
so they would not hurt Coppedge’s
ability to transfer to a job outside of
Cassini. Moreover, there is no evi-
dence that Burgess’s decision to re-
move Coppedge’s lead duties was mo-
tivated by religious animus or hostility
toward intelligent design or
Coppedge’s political beliefs.
the audio recording of that meeting
reveals Coppedge to have been mild in
his tone, if not downright sleep-
inducing (Exh. 351). Burgess’ expla-
nation for years of positive perfor-
mance evaluations is equally unbeliev-
able. This Court should have disbe-
lieved it as a post hoc article of fiction,
arriving after Burgess was sued, de-
posed and prepared for trial. Finally, it
is inconsequential whether Burgess
himself was motivated by religious
animus or hostility toward intelligent
design or Coppedge’s political beliefs.
HR recommended that Burgess remove
Coppedge from the lead role on Exh.
97, 4/7/2009. During the meeting on
April 13, 2009, Burgess told Coppedge
he had discussed removing him from
the lead role with Greg Chin and HR
(Exh. 102), Certified Transcript of the
4/13/09 meeting, 35:16-21 (“I had a
discussion with Greg on how to deal
with that rearrangement and he and
even HR suggested that when it comes
to any announcement that you are tak-
ing on some other role other than the
lead that I should divorce myself from
that so it’s not obvious to the people
who are hearing this that it’s part of
anything else. So I’ve asked Greg to
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bring this up at his next team meet-
ing,…”). The objective evidence thus
demonstrates that Burgess was follow-
ing the recommendation of HR. In
fact, Burgess stated: “I’m going on
what HR says….” (Id., page 36, line 8)
and “that’s why we’re relying on HR.
They’re supposed to be trained indi-
viduals that know how to deal with
these kinds of problems.” Id. at 36:13-
14. At trial, Burgess testified that he
never even learned the facts HR relied
upon in making its recommendation to
demote Coppedge. Plaintiff incorpo-
rates by reference herein the objections
to Defendant’s proposed finding of
fact, ¶ 52.
¶ 13 (a) The 2009 and 2010 ECAPs.
The Court finds that the negative input
on Coppedge’s 2009 and 2010 ECAPs
did not constitute an adverse employ-
ment action. First, the Court would not
characterize the ECAPs as “negative
evaluations.” The evidence shows that
Burgess did not solicit negative input
for the evaluations—and he did obtain
and include positive input from a co-
worker whom Coppedge recommend-
ed. As for the evaluations themselves,
the 2009 ECAP contains praise for
Coppedge. To the extent his 2010
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
Objection. Defendant’s proposed find-
ing of fact mischaracterizes the evi-
dence and lacks foundation. Cal. Civ.
Proc. Code § 634; Yanowitz v. L’Oreal
USA, Inc. at 1036 (“[I]n determining
whether an employee has been sub-
jected to treatment that materially af-
fects the terms and conditions of em-
ployment, it is appropriate to consider
the totality of the circumstances….”).
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ECAP contained criticism, it was from
individuals who observed Coppedge’s
work first-hand and whose input was
substantiated in their trial testimony.
Second, even assuming the ECAPs
were negative evaluations, a negative
evaluation still is not actionable unless
the employer uses it “to substantially
and materially change the terms and
conditions of employment.” Akers, 95
Cal. App. 4th at 1457. The Court finds
that there is no evidence that any such
change occurred as a result of
Coppedge’s ECAPs, either before the
layoff process or during it; Caltech’ s
layoff ranking process does not con-
sider employee ECAPs.
“[I]nconsistencies in performance
evaluations prior and subsequent to an
employee’s termination may support
an inference of pretext.” Johnson v.
United Cerebral Palsy/Spastic Chil-
dren’s Found. of Los Angeles & Ven-
tura Counties, 173 Cal. App. 4th 740,
759 (2009), quoting favorably Siegel
v. Alpha Wire Corp. (3rd Cir.1990)
894 F.2d 50, 55. Further, Defendant’s
post hoc rationale that the ECAPS are
not evidence of adverse employment
action notwithstanding, it is evidence
of dissembling and pretext. See Reeves
v. Sanderson Plumbing Prods., Inc.,
supra (“dissembling) and Arteaga v.
Brink’s, Inc. (pretext).
Coppedge showed by a preponderance
of evidence that he received unwar-
ranted and undeserved negative job
evaluations/performance ratings only
after he challenged the discriminatory
actions taken against him (Exhs. 34 &
35, 2009-2010 ECAPS), and in the
case of the 2010 evaluation (Exh. 35),
after he had filed a lawsuit against De-
fendant, and against Coppedge’s su-
pervisors, Burgess, Klenk and Chin.
The negative comments were ampli-
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fied in 2010 [Exh. 35] with enhanced
criticism and the solicitation of nega-
tive feedback from anonymous co-
workers.
Had the decision to lay off Coppedge
been based on his technical qualifica-
tions, some evidence of technical defi-
ciencies should have been documented
in his ECAPs. Rather, his 2008 ECAP
foretold his continued employment for
years to come. JPL tries to dismiss this
fact based on the expected reductions,
but fails to explain why the one SA
with the longest tenure and most expe-
rience with the program, who was ex-
pected to remain on the program for
years would later, become the most
vulnerable. 3/22 a.m. (Coppedge)
39:4-6 (“Q. Who at that time knew of
the entire history of the Cassini pro-
gram within systems administration?
A. Only me.”).
Even the 2009 ECAP, after Chin’s or-
der, said Coppedge was technically
qualified, and Burgess affirmed that in
the 4/13 meeting. 2010 was the first
occasion where Coppedge’s technical
abilities were questioned.
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Plaintiff objects on the further ground
that evidence of negative performance
reviews is irrelevant to the claim of
discrimination in this case, but, rather,
is relevant to the claim of retaliation.
See Weber v. Battista, 494 F.3d 179,
186 (D.C. Cir. 2007) (negative perfor-
mance evaluations may be pretext for
retaliation).
¶ 13 (b) The Court finds that Caltech had legit-
imate, non-discriminatory reasons for
including the content it did in
Coppedge’s ECAPs. There is no evi-
dence that Burgess intentionally sought
negative input, and the input he did
include was from individuals who ob-
served Coppedge’s work first-hand
(including a co-worker whom
Coppedge recommended).
Objection. Plaintiff hereby incorpo-
rates by reference here his objection to
Defendant’s proposed conclusion of
law, ¶ 13 (a).
The substantial evidence shows that
2010 was the first time in 14 years that
Coppedge received a negative evalua-
tion concerning his skill set. As the
Court stated in its final ruling on sum-
mary judgment: “[A] trier of fact could
… reasonably question evidence that
Plaintiff’s performance evaluations
appear to become lengthier and more
negative after his altercation with Chin
regarding “pushing religion” and his
complaint of a hostile work environ-
ment in March 2009.”
¶ 13 (c) The Court also finds that Coppedge
failed to present evidence that either
Burgess’ solicitation of input for the
ECAPs, or any negative input that re-
Plaintiff hereby incorporates by refer-
ence, as though fully set forth herein,
all prior objections.
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