Page 1
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts
citation of unpublished opinions in California
courts.
Court of Appeal, First District, Division 4, Califor-
nia.
Gigi GEORGE et al., Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO et
al., Defendants and Respondents.
No. A125809.
(San Francisco County Super. Ct. No. CGC-
06-454955).
Aug. 30, 2010.
Waukeen Q. McCoy, San Francisco, CA, for
Plaintiff and Appellant.
Lawrence Hecimovich, Office of the City Attorney,
San Francisco, CA, for Defendant and Respondent.
SEPULVEDA, J.
*1 Plaintiffs are police officers employed by the
FN1
City and County of San Francisco (City). The
City's police chief suspended plaintiffs from duty
for several days pending the filing of police com-
mission charges of misconduct for the officers' par-
ticipation in an assertedly “inappropriate and unau-
thorized video” of police department activities that
plaintiff Officer Andrew Cohen produced at the
Bayview police station and posted on the Internet in
2005. Ultimately, the police chief did not file
charges with the police commission against all of
the officers administratively suspended. Following
an investigation, the police chief ordered counsel-
ing, reprimands, and short disciplinary suspensions
upon most plaintiff officers, and referred only five
plaintiffs to the police commission for stronger dis-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
ciplinary measures.
FN1. The operative first amended com-
plaint names 18 police officer plaintiffs:
Clayton Harmston, Gigi George, James
Lewis, Mike Evanson, Erick Solares, Dav-
id Parry, Andrew Cohen, Noah Mallinger,
Carlos Mustafich, Luis DeJesus, James D.
Aherne, Jason Kirchner, Reginald Scott,
Gerald P. Lyons, Wendy Hurley, Holly
Stoumen, Christine Arndt, and Shareef
Nasir. The trial court summarily adjudic-
ated all causes of action against all but four
plaintiffs (Harmston, Lewis, Evanson and
Parry). This appeal concerns the 14
plaintiffs whose claims were adjudicated.
This lawsuit concerns the initial administrative sus-
pensions alone, not the later disciplinary actions.
Plaintiffs allege in this lawsuit that the City and its
Chief of Police Heather Fong (who is Chinese-
American) discriminated against them on the basis
of race or national origin by imposing administrat-
ive suspensions upon plaintiffs, who are not
Chinese-American, while sparing Chinese-Amer-
ican officers. (Gov.Code, § 12940; 42 U.S.C. §
2000e et seq.) The trial court granted defendants'
motion for summary adjudication upon finding un-
disputed evidence that defendants suspended video
participants without regard to race. In the trial
court, defendants demonstrated a race-neutral reas-
on for the suspensions: willing participation in the
video vignettes posted on the Internet. The trial
court granted summary adjudication upon conclud-
ing that plaintiffs failed to rebut this showing with
any evidence of discrimination. We affirm the trial
court's ruling.
FN2
I. FACTS
FN2. Our statement of facts is drawn from
the statements of undisputed facts submit-
ted by the parties on the motion for sum-

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
mary adjudication. (Code Civ. Proc., §
437c, subd. (b)(1), (3).) The facts recited
here were either undisputed by the parties,
or conclusively established by the evidence
submitted with the motion. Plaintiffs ob-
jected to some of this evidence in the trial
court. The trial court correctly overruled
those objections.
Plaintiffs participated in the creation of what they
call “a comedic parody video” that was produced
and directed by Officer Cohen. The video was go-
ing to be played at a Christmas party attended by
Bayview officers but the video's format was incom-
patible with the video player available at the site of
the party. On December 3, 2005, after the unsuc-
cessful viewing effort, Cohen posted portions of the
video on the Internet. The video was not presented
in the trial court so we have only descriptions of its
content.
Lieutenant Edward Santos, Jr., the lead investigator
in this matter, submitted a declaration describing
the five video vignettes posted on the Internet, and
his description is unchallenged: (1) “Charlie's An-
gels”-three female plainclothes officers (plaintiffs
Hurley, Arndt, and Stoumen) enter Captain Richard
Bruce's office at the Bayview Station to music from
the Charlie's Angels television series and pose with
guns drawn. They say, “ ‘Oh Captain’ “ and move
their tongues in a licking manner. A female officer
in uniform (plaintiff George) also makes sexually
suggestive moves, as does a male officer in a dress
(plaintiff Lewis). Captain Bruce's image appears
with the text “ ‘the ladies man.’ “ (2)
“Blockhead”-A uniformed police officer (plaintiff
Evanson) drives a marked patrol vehicle over an
African-American woman. The woman stands up
and yells, “ ‘Evanson, you white motherfucker’ “
and displays her middle finger as the scene fades
out. (3) “One Rock”-numerous officers (including
plaintiffs Aherne, DeJesus, Kirchner, Mallinger,
Mustafich, Scott, Solares, and Stoumen) respond to
the report of a “ ‘suspicious person’ “ with drawn
guns (some fake). The person is searched, contra-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
band is seized, and the officers celebrate to the tune
of “We are the Champions.” (4) “Traffic Cop Gone
Wild”-A male officer makes a traffic stop and, be-
fore citing the female driver, looks over her body.
(5) “A Day in the Life of Hamster and Big
Dummy”-Two uniformed officers in a patrol car
(plaintiffs Harmston and Parry) are shown in sever-
al scenes with text showing elapsed time from early
morning through afternoon. At the start of the day,
the officers are in a parked patrol car reading a
newspaper with the front page displaying the head-
line “ ‘Asian Managers Gain Ground in City Gov-
ernment,’ “ along with a photograph of Chief Fong
with the caption “ ‘Spotlight on Safety.’ “ The of-
ficers read the newspaper and ignore repeated radio
broadcasts asking them to respond. Throughout the
morning, the officers sleep, play computer solitaire,
and listen to rap music while ignoring radio calls.
The officers are then seen executing tai-chi type
movements outside the patrol car while listening to
Asian music and ignoring radio calls. The officers
read the newspaper again; then, with emergency
lights and siren activated, they ignore radio calls
and drive to a massage parlor.
*2 On December 6, 2005, within days of the Inter-
net posting, San Francisco Police Officer Associ-
ation (POA) President Gary Delagnes told Chief
Fong that the press had contacted the POA about
Officer Cohen's video vignettes and Delagnes
showed the vignettes to Chief Fong on the Internet.
Chief Fong declares that she “was immediately
concerned that the vignettes, which contained
highly inappropriate material and included officers
in uniform and using [Police] Department equip-
ment, potentially violated various Department Gen-
eral Orders and could cause damage to the Depart-
ment's mission and community relationships.”
Chief Fong ordered the Management Control Divi-
sion (MCD) of the San Francisco Police Depart-
ment (Department) to identify the officers who
willingly participated in the publicly aired vign-
ettes, and ordered those officers administratively
suspended.

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
The San Francisco Police Commission promulgates
General Orders governing the conduct and discip-
line of sworn police officers. General Order 2.07
establishes different types of discipline, some of
which may be imposed by the police chief and
some of which require police commission proceed-
ings. The police chief may admonish, reprimand,
prescribe corrective action or, after a hearing or op-
portunity for a hearing, impose a disciplinary sus-
pension (unpaid time off) for a period not to exceed
10 days. A disciplinary suspension by the chief of
police may be appealed to the police commission.
Harsher punishment is reserved to the police com-
mission. The police commission, after trial, may
reprimand, fine, suspend, or dismiss police officers.
The police chief is also separately authorized to
suspend an officer temporarily pending the filing or
hearing of charges before the police commission.
Such an administrative suspension is limited to
“exigent circumstances,” and a hearing must be
held within five working days of the suspension to
determine whether the officer should remain sus-
pended pending a police commission hearing.
The case of plaintiff Cohen is illustrative. Chief
Fong suspended Officer Cohen from duty without
pay on December 8, 2005, pending the filing of
misconduct charges with the police commission.
An administrative hearing was held on December
14 to consider whether he should remain suspended
pending a police commission hearing. The adminis-
trative hearing officer recommended that Officer
Cohen be returned to duty, and Chief Fong ordered
his return effective December 16, 2005. Cohen
missed four days' pay while the administrative sus-
pension was in place. Cohen later sued the City
upon allegations that his suspension was unauthor-
ized. This District Court of Appeal found the ad-
ministrative suspension unauthorized because the
City acted without demonstrating the existence of
exigent circumstances, and ordered restoration of
pay and benefits lost as a result of the temporary
suspension. (Cohen v. City and County of San
Francisco (July 5, 2007, A114661) [nonpub. opn.].)
The court was careful to note that it “impl[ied] no
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
judgment regarding the merits or proper disposition
of the disciplinary charges the Department has filed
against Cohen.” (Id . at p. 12.) The court also did
not consider the issue presented here: whether the
administrative suspensions were imposed in a ra-
cially discriminatory manner.
*3 On that issue, the undisputed evidence here is
that Chief Fong ordered MCD to identify the of-
ficers who willingly participated in the publicly
aired vignettes and decided to administratively sus-
pend those identified by MCD without knowing the
races or ethnicities of the officers who participated
in the video vignettes. Plaintiffs tried to dispute this
fact in the trial court by introducing Chief Fong's
deposition testimony admitting that she saw the
video before suspending plaintiffs. But simply see-
ing the video does not refute her declaration state-
ment that she did not identify any of the depicted
officers nor catalogue their personal characteristics.
The evidence establishes that Chief Fong delegated
to MCD the task of identifying the officers who
willingly participated in the video. Lieutenant San-
tos, with other MCD officers, “conducted a detailed
and intensive review of the five vignettes” from
December 6 to December 8, 2005, and conducted
interviews of Officer Cohen and his commanding
officer. MCD prepared an administrative suspen-
sion list identifying 26 officers who willingly parti-
cipated in the publicly aired video vignettes. On
December 8 and 9, 2005, Chief Fong suspended
each of the officers MCD identified.
A comprehensive investigation of the Bayview
video was conducted over a period of months, from
December 2005 through October or November
2006. The results of the investigation were com-
piled in a report over 1,200 pages long. The MCD
recommended disciplinary action against 46 of-
ficers, ranging from counseling for most to police
commission review for a few. Chief Fong adopted
the MCD recommendations with limited excep-
tions. She imposed lesser discipline in some cases.
None of those cases concerned Asian officers.
MCD concluded, and Chief Fong concurred, that

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
the conduct of two plaintiffs whose claims are on
appeal here warranted a police commission hearing:
Officers Cohen and Hurley. Chief Fong also dis-
armed Cohen and Hurley and reassigned them to
limited public contact positions pending the adju-
dication of misconduct charges before the police
commission. On appeal, plaintiffs do not challenge
these disciplinary actions of late 2006. The sole
contention on appeal is that defendants discrimin-
ated against plaintiffs when imposing the initial ad-
ministrative suspensions in December 2005 and, in
doing so, intentionally inflicted emotional distress.
II. PROCEDURAL HISTORY
Plaintiffs filed this lawsuit in August 2006. The ac-
tion was removed to federal court, then returned to
state court after dismissal of certain claims. As rel-
evant here, plaintiffs sued the City and Chief Fong
claiming race discrimination and intentional inflic-
FN3
tion of emotional distress. Initially, plaintiffs
alleged that the discrimination consisted of favor-
ing Asians over non-Asians in suspending police
officers in connection with the Bayview video.
Most of the plaintiffs alleged in their first amended
complaint that they are “non-Asian individual[s],”
although plaintiffs Arndt and Nasir rested their
claims on being “perceived to be” non-Asian.
Plaintiffs later asserted that defendants favored
Chinese-Americans over all who were not Chinese-
Americans, including officers who are African-
American, Latino, White, Japanese-American and
possibly other races, ethnicities, or national origins.
FN4
The implication is that Chief Fong, a Chinese-
American, favored Chinese-American officers over
all others.
FN3. Plaintiffs alleged other causes of ac-
tion, but they are not at issue on this ap-
peal.
FN4. For convenience, we continue to use
plaintiffs' designation of “race discrimina-
tion” although plaintiffs' categories do not
always correspond to race.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
*4 The City moved for summary adjudication and
presented evidence of a race-neutral reason for sus-
pending plaintiffs-their willing participation in a
publicly posted video of police department activit-
ies produced with Department resources that con-
tained material considered “racist, sexist, [and] ho-
mophobic,” that potentially violated Department
conduct standards, and that was injurious to “the
Department's mission and community relation-
ships.” In June 2009, the trial court granted the mo-
tion for summary adjudication on all causes of ac-
tion brought by 14 of the 18 plaintiffs. Plaintiffs
moved for reconsideration, and the motion was
denied in July 2009. Plaintiffs filed a notice of ap-
peal from the summary adjudication order later that
FN5
month.
FN5. Orders granting summary judgment
or summary adjudication are not appeal-
able. ( Kasparian v. AvalonBay Communit-
ies, Inc. (2007) 156 Cal.App.4th 11, 14,
fn.1; Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter
Group) ¶ 2:241, p. 2-116.) Appeal lies
from a judgment entered on the order. (Id.
at ¶ 2.241.1.) Here, defendants obtained
summary adjudication on all causes of ac-
tion against most of the plaintiffs but no
judgment was entered against those
plaintiffs. In the interest of justice and to
avoid delay, we construe the order granting
summary adjudication as incorporating an
appealable judgment and the notice of ap-
peal as appealing from such judgment. (
Levy v. Skywalker Sound (2003) 108
Cal.App.4th 753, 761, fn. 6; Belio v. Pan-
orama Optics, Inc. (1995) 33 Cal.App.4th
1096, 1101-1102.)
III. DISCUSSION
“On appeal after a motion for summary judgment
has been granted, we review the record de novo,
considering all the evidence set forth in the moving
and opposition papers except that to which objec-

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
tions have been made and sustained. [Citation.] Un-
der California's traditional rules, we determine with
respect to each cause of action whether the defend-
ant seeking summary judgment has conclusively
negated a necessary element of the plaintiff's case,
or has demonstrated that under no hypothesis is
there a material issue of fact that requires the pro-
cess of trial, such that the defendant is entitled to
judgment as a matter of law.” ( Guz v. Bechtel Na-
tional, Inc. (2000) 24 Cal.4th 317, 334 (Guz ).)
A. Race discrimination claim
Plaintiffs allege intentional race discrimination.
Specifically, plaintiffs allege that Chief Fong, a
Chinese-American, engaged in disparate treatment
of police officers on the basis of race by punishing
only non-Chinese-American officers with adminis-
trative suspensions for participating in the Bayview
video. We find no evidence of discrimination.
1. General principles
California has adopted the three-stage burden-
shifting test established by the United States Su-
preme Court in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas ) for try-
ing claims of discrimination based on a theory of
disparate treatment. ( Guz, supra, 24 Cal.4th at p.
354.) “At trial, the McDonnell Douglas test places
on the plaintiff the initial burden to establish a
prima facie case of discrimination.” (Ibid.)
“Generally, the plaintiff must provide evidence that
(1) he was a member of a protected class, (2) he
was qualified for the position he sought or was per-
forming competently in the position he held, (3) he
suffered an adverse employment action, such as ter-
mination, demotion, or denial of an available job,
and (4) some other circumstance suggests discrim-
inatory motive.” (Id. at p. 355.) If the plaintiff es-
tablishes a prima facie case, a presumption of dis-
crimination arises and the burden shifts to the em-
ployer to rebut the presumption by producing evid-
ence that its action was taken for a “legitimate,
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
nondiscriminatory reason.” (Id. at pp. 355-356.) “If
the employer sustains this burden, the presumption
of discrimination disappears. [Citations.] The
plaintiff must then have the opportunity to attack
the employer's proffered reasons as pretexts for dis-
crimination, or to offer any other evidence of dis-
criminatory motive. [Citations.] In an appropriate
case, evidence of dishonest reasons, considered to-
gether with the elements of the prima facie case,
may permit a finding of prohibited bias. [Citations.]
The ultimate burden of persuasion on the issue of
actual discrimination remains with the plaintiff.” (
Ibid.)
*5 On a motion for summary judgment, an employ-
er may proceed directly to the second step of the
McDonnell Douglas formula and present evidence
of a legitimate, nondiscriminatory reason for the
challenged action. ( Guz, supra, 24 Cal.4th at p.
357.) If the employer does so, the burden shifts to
the employee to present evidence from which in-
tentional discrimination may be inferred. (Ibid.) In
the face of an employer's showing of nondiscrimin-
atory reasons, the employee must show there was
nonetheless a triable issue that decisions leading to
the adverse employment action were actually made
on the prohibited basis of race. (Id. at p. 360.)
“[A]n employer is entitled to summary judgment if,
considering the employer's innocent explanation for
its actions, the evidence as a whole is insufficient to
permit a rational inference that the employer's actu-
al motive was discriminatory.” (Id. at p. 361.)
When evaluating an employer's explanation for its
action in a race discrimination case, the court must
not confuse unwise acts with discriminatory acts.
“While the objective soundness of an employer's
proffered reasons supports their credibility ..., the
ultimate issue is simply whether the employer acted
with a motive to discriminate illegally. Thus,
‘legitimate’ reasons [citation] in this context are
reasons that are facially unrelated to prohibited bi-
as, and which, if true, would thus preclude a finding
of discrimination.” ( Guz, supra, 24 Cal.4th at p.
358, italics omitted.) The issue is discriminatory in-

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
tent, not whether the employer's decision was
wrong, mistaken, unwise, incompetent, imprudent,
or foolish. (Ibid.) Of course, “[p]roof that the em-
ployer's proffered reasons are unworthy of credence
may ‘considerably assist’ a circumstantial case of
discrimination, because it suggests the employer
had cause to hide its true reasons. [Citation.] Still,
there must be evidence supporting a rational infer-
ence that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the
employer's actions. (Id. at p. 361, italics omitted.)
2. Defendants presented evidence of a legitimate,
nondiscriminatory reason for the challenged sus-
pensions
Defendants presented creditable evidence that Chief
Fong imposed administrative suspensions upon
plaintiff police officers for reasons wholly unre-
lated to the race of the officers. Chief Fong de-
clared that she was concerned that the publicly
aired vignettes, “which contained highly inappro-
priate material and included officers in uniform and
using Department equipment, potentially violated
various Department General Orders and could
cause damage to the Department's mission and
community relationships.”
Fong “took immediate action to mitigate damage to
the Department's mission, and to avoid any risk to
public safety.” She ordered MCD “to work ur-
gently to identify the officers who willingly parti-
cipated in the five vignettes, and ordered those of-
ficers administratively suspended pending a com-
prehensive Department investigation.” Chief Fong
ordered the suspension of those identified without
knowing the races or ethnicities of the officers who
participated in the video vignettes. She delegated to
MCD the task of identifying the officers who will-
ingly participated in the video.
*6 Lieutenant Santos, with other MCD officers,
“conducted a detailed and intensive review of the
five vignettes” from December 6 to December 8,
2005, and conducted interviews of Officer Cohen
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
and his commanding officer. MCD prepared an ad-
ministrative suspension list identifying 26 officers
who willingly participated in the publicly aired
video vignettes. On December 8 and 9, 2005, Chief
Fong suspended each of the officers MCD identi-
fied.
3. Plaintiffs failed to present evidence of discrimin-
atory intent sufficient to raise a triable issue of fact
Defendants presented evidence of a nondiscriminat-
ory reason for the challenged action and thus the
burden shifted to plaintiff employees to present
evidence from which intentional discrimination
may be inferred. ( Guz, supra, 24 Cal.4th at p. 357.)
Plaintiffs failed to do so.
On appeal, plaintiffs argue that Chief Fong acted in
excess of her authority in imposing administrative
suspensions without exigent circumstances.
Plaintiffs point to this District Court of Appeal's
finding that the administrative suspension of Of-
ficer Cohen was unauthorized because the City ac-
ted without demonstrating the existence of exigent
circumstances. (Cohen v. City and County of San
Francisco, supra, A114661.) The argument,
however, does nothing to advance their race dis-
crimination claim. All that plaintiffs have shown,
at most, is that Chief Fong may have seen exigency
where none existed. A mistaken assessment of exi-
gency does not show race discrimination.
Plaintiffs argue to the contrary, and maintain that
since the proffered reason (exigency from deleteri-
ous impact of video vignettes) was discredited, a
reasonable juror could infer that the real reason was
discrimination. We disagree. While Chief Fong
may have overestimated the exigency of the situ-
ation, or at least failed to articulate the nature of the
exigency in her notice of suspension, her stated
concern over the video's production, content, and
impact is not unreasonable. A court's later determ-
ination that Chief Fong suspended Officer Cohen
without demonstrating the existence of exigent cir-
cumstances does not show that the police chief was
not genuine in believing that the suspension of Co-

Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))
hen (and other officers) was required under the cir-
cumstances as she understood them at the time she
acted. It certainly does not show that Chief Fong
fabricated concern over the video to strike out at
non-Chinese-American officers.
Plaintiffs have somewhat more success in advan-
cing their race discrimination claim when arguing
that defendants' asserted basis for suspending of-
ficers (willing participation in the video vignettes
posted on the Internet) was not consistently applied.
Plaintiffs note that plaintiff Nasir was suspended
even though he was not in an Internet vignette, and
Officer Derrick Lew-who is Chinese-American-was
not suspended despite his appearance in an Internet
vignette. The argument, however, fails to raise a tri-
able issue of fact as to discriminatory intent.
*7 Undisputed evidence establishes that inadvert-
ence-not discrimination-led to Officer Nasir's in-
clusion on the suspension list and Officer Lew's
omission from the list. In both cases, the error rests
with MCD investigators working under extreme
time pressure to quickly review the video vignettes,
identify numerous officers depicted in them, and
assess whether their participation was willing. The
lead investigator, Lieutenant Santos, declared that
Officer Nasir's inclusion on the list was a mistake.
Santos explained that Officer Nasir drew the atten-
tion of MCD officers because of his appearance in a
subsequent vignette where he pulls his firearm from
his holster, points it at a dog, and says “ ‘This is
how you train a dog Bayview style.’ “ Lieutenant
Santos declared that “[t]his was the only instance of
any officer in the video explicitly threatening to use
his Department firearm, and triggered further dis-
cussion of possible additional measures to be im-
plemented in his case. However, it was not our in-
tention to include Officer Nasir's name on MCD's
administrative suspension list, at least not without
getting the Chief's knowing review and approval, as
Captain Keohane had made it clear that that list was
to include only officers who appeared in the first
five public vignettes. The Chief was never in-
formed that Officer Nasir had not appeared in the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
first five vignettes.” Chief Fong confirmed in her
declaration that Officer Nasir “had been inadvert-
ently added to the list despite the fact that his in-
volvement related to a subsequent vignette.” Fong
said she learned of the inadvertent inclusion months
after issuing the suspension and, at the time she ac-
ted, “was never informed and was not aware that
Officer Nasir had not appeared in the first five
vignettes that were in the public arena.” Officer
Nasir's inclusion on the suspension list was thus
fully explained, and does not raise an inference that
Chief Fong suspended him out of racial animus. Of
the 26 administratively suspended officers, 25 ap-
peared in the public video vignettes. This close
correlation cannot be harmonized with plaintiff's
theory that the suspensions were race-based. The
only reasonable inference is the one propounded by
defendants-Nasir's inclusion on the suspension list
was inadvertent. It was not discriminatory.
The same is true of Lew's omission from the sus-
pension list. Lieutenant Santos declared that “[t]he
MCD team did not identify Officer Derrick Lew
during the December 2005 emergency review” of
the vignette in which Lew appeared. The vignette
was “ ‘One Rock,’ “ and it “was faster moving and
generally presented a harder task as to identifying
the participating officers.” Santos explained that,
unlike some of the other officers in the vignette,
“Officer Lew did not key his microphone or use his
call sign during the lunchroom scene and was not
recognized as a participant in the chase scene.”
When Lew was later identified, his conduct was ad-
dressed with counseling, which was the same level
of discipline imposed upon other officers (including
several plaintiffs) of comparable culpability appear-
ing in the vignette.
*8 There is no evidence that the suspension list's in-
clusion of Officer Nasir and omission of Officer
Lew were anything other than innocent mistakes
free of discriminatory animus. Notably, Chief
Fong-who is accused of favoring Chinese-American
officers like Officer Lew over all others-did not
prepare the suspension list. Chief Fong ordered
 Page 8
Not Reported in Cal.Rptr.3d, 2010 WL 3388066 (Cal.App. 1 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388066 (Cal.App. 1 Dist.))

MCD to identify the officers who willingly parti- munity in their briefing on appeal. We conclude
cipated in the public vignettes, and ordered those that the trial court properly granted defendants
officers administratively suspended. At the time she summary adjudication on the intentional infliction
made that decision, Chief Fong did not know the of emotional distress cause of action.
races or ethnicities of the officers who participated
in the video vignettes. It was MCD that reviewed
IV. DISPOSITION
the vignettes and prepared an administrative sus-
pension list identifying 26 officers who willingly The judgment is affirmed.
participated in the public vignettes. Lieutenant
Santos declared that “Chief Fong at no time did or We concur: RUVOLO, P.J., and RIVERA, J.
said anything to suggest that Asian [officers] be
treated differently [from] non-Asians with regard to Cal.App. 1 Dist.,2010.
any aspect of the MCD process,” and Santos never George v. City and County of San Francisco
observed any MCD officer impose disparate treat- Not Reported in Cal.Rptr.3d, 2010 WL 3388066
ment based on race. Chief Fong did not pick and (Cal.App. 1 Dist.)
choose from the suspension list prepared by MCD
END OF DOCUMENT
but suspended each of the officers MCD identified
as a willing participant in the public video vign-
ettes. The evidence establishes that defendants were
entitled to summary adjudication of the race dis-
crimination claim.

B. Intentional infliction of emotional distress

Plaintiffs' cause of action for intentional infliction

of emotional distress rests upon allegations that de-
fendants engaged in “extreme and outrageous con-
duct” by “acting in a discriminatory manner” and
by “[m]aking public statements regarding a private
personnel matter” during a December 2005 press
conference about the Bayview video. Standard per-
sonnel actions and management decisions, even if
discriminatory, are not extreme and outrageous
conduct sufficient to support a claim for intentional
infliction of emotional distress. ( Janken v. GM
Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)
In any event, we have already determined that de-
fendants did not act in a discriminatory manner.
Plaintiffs' complaint about the press conference
fails because the decision to speak to the press was
a discretionary act immune from liability. (
Gov.Code, §§ 820.2, 821.6.) This was the holding
of a federal district court when this case was ven-
ued there. Plaintiffs failed to challenge that holding
and have failed even to address the issue of im-

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