• Irvine Law Group

FEHA Age Discrimination/Retaliation

Dinslage v. City and County of San Francisco.

David P. Dinslage is a former employee of Recreation and Parks Department (the Department) of the City and County of San Francisco (the City). As part of a large-scale restructuring of the Department’s recreation programs, Dinslage’s employment classification was eliminated, and he was one of a large number of employees who were laid off. Although he applied to be rehired in a newly created classification, he was not offered a position. He then retired from City employment.

Dinslage sued the Department, the City, and a number of the Department’s managerial employees for age discrimination, retaliation, and harassment in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940, subds. (a), (h), (j).) He claimed the Department had taken a number of adverse employment actions against him based on his age. In addition, he claimed he had been retaliated against and harassed because of his age and his opposition to Department actions that discriminated against people with disabilities.

Respondents, defendants below, moved for summary judgment on all of Dinslage’s causes of action. They claimed, with supporting evidence, that their actions were taken for legitimate, nondiscriminatory reasons. Dinslage opposed the motion, but the trial court agreed with respondents and granted them summary judgment on all counts of Dinslage’s complaint.

Dinslage now appeals, contending there were triable issues of fact on his age discrimination and retaliation claims. In accordance with our standard of review, we have examined the record de novo. In the unpublished portion of our opinion, we conclude the trial court did not err in granting summary judgment to respondents on Dinslage’s age discrimination claim.

In the published portion of our opinion, we hold the superior court properly granted summary judgment on Dinslage’s retaliation claim because he failed to make out a prima facie case of retaliation. To prevail, Dinslage was required to show he suffered an adverse employment action because he had engaged in a “protected activity.” We hold that Dinslage’s opposition to Department policies and practices he viewed as discriminating against disabled members of the general public is not protected activity because his opposition was not directed at an unlawful employment practice. Thus, Dinslage could not reasonably have believed the practices he opposed were prohibited by the FEHA.