Parks & Recreation – Real Life Age Discrimination in SF? Not so fast…

This is a case in which the First Appellate Court of Appeal upheld a trial court’s summary judgment of an age discrimination, harassment and retaliation case. In, of all places, San Francisco! Not Bakersfield. Not Fresno. Not Texas. But San Francisco! I always heard that judges in San Francisco never grant summary judgment on employment discrimination cases, but then I always heard that Donald Trump had no chance of winning the election. So this simply proves that what one always hears is not always fact. And that’s one more reason appellate courts issue published opinions so smart lawyers like me and you can read them and learn and not rely on the conventional wisdom and what we hear.

So let’s look at this case brought by former employee David Dinslage against the San Francisco Recreation and Parks Department. Dinslage was caught up in a “large-scale restructuring of the Department’s programs” which means he lost his job in a lay-off.

Dinslage’s case was dismissed by the trial court which concluded that Dinslage’s dismissal was the result of the Department’s restructuring, which we all know to mean the Department’s legitimate, nondiscriminatory termination defense worked.

Dinslage worked for the Department since 1972. (Don’t see that much anymore!) Apparently Dinslage had a good career at the Department starting out as an assistant recreation director and ending up as “inclusion coordinator.” Disnlage had been working for years on programs directed to the disabled.

Everything was going swimmingly until a new superintendent of citywide services arrived on the scene. One of the superintendent’s duties was to reorganize and restructure the recreation services, and (we’ve all seen this story before) Dinslage, with his three decades-plus of service, didn’t like the changes proposed by the new superintendent.

Dinslage refused to go along to get along and his alleged insubordination was documented by his supervisors in his performance evaluations.

While all this was going on, a financial crisis hit the city. And so Dinslage was laid-off. Dinslage was given the opportunity to apply for other city jobs, and he did. And he scored an interview. But Dinslage took advantage of the interview opportunity to grouse about the whole restructuring thing. And guess what? Disnlage was not hired and he retired.

But Dinslage wasn’t finished and he sued the City and County of San Francisco.

This opinion focused on Dinslage’s retaliation claim which was based on Dinslage’s opposition to the restructuring. Dinslage claimed that he was engaging in “protected activity” under FEHA.

But the appellate court agreed with the trial court: Dinslage’s opposition to the restructuring wasn’t protected activity under FEHA because he wasn’t opposing practices forbidden by FEHA, he was opposing the restructuring, which had nothing to do with FEHA.

So there you have it.

Dinslage v. City and County of San Francisco
5 Cal. App. 5th 368 (November 9, 2016)

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