Hodges v. ACE Parking Management
Filed 5/20/13 Hodges v. ACE Parking Management CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
RICHARD E. HODGES,
Plaintiff and Appellant,
v.
ACE PARKING MANAGEMENT, INC.,
et al.,
Defendants and Respondents.
D061069
(Super. Ct. No. 37-2010-00103423-
CU-WT-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Richard E.L. Strauss, Judge. Affirmed in part, reversed in part.
Richard E.
Hodges, in pro. per., for Plaintiff and Appellant.
Schwartz,
Semerdjian, Ballard & Cauley, Dick A. Semerdjian and Sierra J. Spitzer for
Defendants and Respondents.
Richard E.
Hodges appeals a judgment dismissing his case after the superior court
sustained demurrers by Ace Parking Management, Inc. (Ace Parking), Scott Jones,
Mike Wilson and Ian Pollart (collectively, the defendants) to his third amended
complaint asserting claims for racial and
age discrimination, harassment and retaliation. He contends that his third amended complaint
sufficiently alleged causes of action for racial and age discrimination,
harassment and retaliation against all of the defendants. We conclude that the allegations were
sufficient to state a claim for wrongful termination based on racial and age
discrimination against Ace Parking. We
therefore reverse the judgment as to that claim; in all other respects, we
affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
In
accordance with the rules governing appellate review of a superior court's
ruling on a demurrer, the following factual recitation is taken from the
allegations of Hodges's third amended complaint and the exhibits attached
thereto. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
Hodges, who
is African-American, began working for Ace Parking in 2000 and he worked his
way up from a part-time temporary employee to a full-time supervisory
position. During that time, Hodges
received two certificates of recognition for outstanding and dedicated performance
from the San Diego Marriott
Mission Valley,
where he was assigned, as well as compliments from hotel patrons. In June 2005, after a recent transfer to work
for Ace Parking at the Holiday Inn on the Bay, Hodges filed an internal
complaint against Pollart, his new supervisor, reporting that Pollart
improperly castigated him in front of a new hire and accusing Pollart of racism
and bigotry.
title="">[2]
From April
2006 to January 2009, Pollart (1) issued Hodges multiple partial paychecks for
10 different weekly pay periods, (2) failed to correctly report Hodges's work
hours, and (3) changed Hodges's work schedule.
In January 2009, when Hodges was 63 years old, defendants Wilson, an Ace
Parking area manager, and Pollart terminated him, ostensibly because of a
slowdown in Ace Parking's business, while retaining the other shift supervisor,
a much younger White male who had worked for Ace Parking for only two
years.
Hodges
filed a complaint with the Equal Employment Opportunity Commission arising out
of his termination and was issued a right-to-sue letter. Representing himself, Hodges filed this
action in November 2010 and filed an amended complaint three weeks later. The defendants challenged Hodges's first and
second amended complaints by demurrer.
The superior court sustained both demurrers with leave to amend.
Hodges
filed a third amended complaint asserting claims for wrongful
termination/racial discrimination against Wilson and Pollart (first cause of
action); harassment against Pollart (second and third causes of action);
retaliation against Pollart (fourth cause of action); age discrimination
against Wilson and Pollart (fifth cause of action); and discrimination,
harassment and retaliation against all of the defendants (sixth cause of
action). The defendants again demurred
to all of Hodges's claims. After hearing
oral argument, the superior court sustained the demurrers without leave to
amend.
Hodges
appeals, contending that he has adequately alleged causes of action for
discrimination, harassment and retaliation.
DISCUSSION
In an appeal from a judgment entered upon a demurrer
sustained without leave to amend, we review the challenged pleading de novo to
determine whether it alleges facts sufficient to state a cause of action under
any legal theory. (McClain v. Octagon
791-792.) In doing so, we must assume
the truth of "(1) all facts properly pleaded by the plaintiff, (2) all
facts contained in exhibits to the complaint, (3) all facts that are properly
the subject of judicial notice, and (4) all facts that may reasonably be
inferred" from such facts. (
1305.) We do not, however, accept the
truth of allegations that constitute legal contentions, conclusions of law, or
deductions drawn from those legal contentions or conclusions. (Ibid.)
A.
racial and age discrimination against Wilson and Pollart
Although an employer may ordinarily terminate an "at
will" employee, with or without good cause (Lab. Code, § 2922), the
California Fair Employment and Housing Act (FEHA) makes it an unlawful
employment practice for an employer
"to discharge [a] person from employment or . . . to discriminate against
[him] in compensation or in terms, conditions, or privileges of
employment" based on his race or age.
(Gov. Code, § 12940, subd. (a).)
This statutory scheme authorizes the assertion of a claim by an
aggrieved employee against his employer, but does not support the assertion of
such a claim by the employee against his individual supervisors. (Reno
v. Baird (1998) 18 Cal.4th 640, 644-664.)
For this reason, the superior court properly sustained the demurrers by
Wilson and Pollart to Hodges's first and fifth causes of action alleging
wrongful termination based on racial discrimination and age discrimination
against them.
B.
FEHA also
makes it an unlawful employment practice "[f]or an
employer . . . or any other person" to harass an
employee because of race. (Gov. Code, §
12940, subd. (j)(1).) To
successfully assert a harassment claim, a plaintiff must allege facts showing
that he belonged to a protected group and was subjected to racial harassment,
and that the harassment was sufficiently pervasive that it altered the
conditions of his employment and created an abusive or hostile working
environment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130;
Etter v. Veriflo Corp. (1998) 67
Cal.App.4th 457, 465-466.)
Whether particular
conduct is sufficiently pervasive to create a hostile or offensive work
environment must be judged from the perspective of a reasonable person in the
employee's position in light of all the circumstances. (Fisher
v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610 (
and frequency of the conduct and whether it was physically threatening or
humiliating (rather than merely an offensive utterance). (Beyda
v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517, citing
510 U.S. 17, 23.) The conduct must (a)
have actually offended the employee asserting the claim, and (b) been of such
an extreme nature that it would have both interfered with a reasonable
employee's work performance and seriously affected such a reasonable employee's
psychological well-being. (
v. Veriflo Corp., supra, 67 Cal.App.4th at pp. 466-467.) Occasional, isolated, sporadic, or trivial acts
will not suffice. (Fisher, supra, at pp. 609-610.)
Hodges's
harassment claims are based on allegations that Pollart (1) issued Hodges
multiple partial paychecks for 10 weekly pay periods between April 2006 and
January 2009, (2) failed to correctly report Hodges's work hours, and (3)
changed Hodges's work schedule without reason.
Although Hodges clearly found this conduct offensive and upsetting, it
was sporadic in nature and cannot reasonably be deemed to constitute a
concerted pattern of harassment. (See Guthrey
v. State of California (1998) 63 Cal.App.4th 1108, 1122-1124 and cases
cited therein.) Accordingly, the
superior court properly sustained Pollart's demurrer to this cause of
action.
C.
FEHA makes
it an unlawful employment practice for an employer to retaliate against an
employee for complaining about violations of its provisions. (Gov. Code, § 12940, subd. (h).) As with claims of discrimination, individual supervisory
employees are not personally liable under FEHA for engaging in retaliatory
conduct. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158,
1160, 1173.) Thus, the superior court
properly sustained Pollart's demurrer to Hodges's cause of action for
retaliation.
D. Claim
for discrimination, harassment and retaliation against all defendants
Hodges's
sixth cause of action against the defendants incorporated the same factual
allegations that provide the basis for his other causes of action. For the reasons discussed above, this cause
of action failed to state a claim against the individual defendants for
discrimination, harassment or retaliation, and similarly failed to state a
claim against Ace Parking for harassment.
The question remains whether Hodges's allegations were sufficient to
support claims against Ace Parking for retaliation or discrimination.
1.
To establish a prima facie case of
retaliation, a plaintiff must show that he engaged in a protected activity,
that his employer subjected him to an adverse employment action, and that there
was a causal link between the protected
activity and the employment action.
(Flait v. North American Watch
Corp. (1992) 3 Cal.App.4th 467, 476.)
In support of his claim for retaliation, Hodges relied on essentially
the same factual allegations that provide the bases for his harassment causes
of action as constituting an adverse employment action.
Although
workplace harassment may rise to the level of an adverse employment action for
purposes of establishing a retaliation claim, such harassment must be severe or
pervasive. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056,
fn. 16 (Yanowitz) [recognizing that
FEHA was not intended to provide employees with a remedy "for any possible
slight" resulting from the filing of a discrimination complaint].) Minor or relatively trivial adverse actions
or conduct by an employer or fellow employees that, from an objective perspective,
are reasonably likely to do no more than anger or upset an employee cannot
properly be viewed as materially affecting the terms, conditions, or privileges
of employment, and are not actionable. (
against him by issuing him multiple partial paychecks, changing his days off
and treating him unprofessionally in front of other employees fall into the
latter category.
2.
A prima facie case of discrimination under FEHA is
established where an employee alleges (1) he was a member of a protected class
(here, based on race or age); (2) he was subjected to an adverse employment
action; (3) he was satisfactorily performing his job when the adverse action
was taken against him; and (4) circumstances that suggest that his employer
acted with a discriminatory motive. (See
Guz v. Bechtel National, Inc., supra,
24 Cal.4th at p. 355.) Hodges's third
amended complaint alleges that he is African-American and is 63 years old, and
that he was terminated from his supervisory position because of his race and/or
his age. The complaint further alleges
that Ace Parking terminated Hodges and retained a much younger and less
experienced White male as the remaining shift supervisor. Finally, the operative complaint alleges that
Hodges was satisfactorily performing his job at the time of his
termination. These allegations are
sufficient to allege a prima facie case of race and age discrimination.
DISPOSITION
The judgment is reversed insofar as the superior court
sustained Ace Parking's demurrer to Hodges's claim for racial and age
discrimination. The matter is remanded
for further proceedings relating to those claims. The judgment is affirmed in all other
respects. Parties to bear their own
costs on appeal.
AARON, J.
WE CONCUR:
NARES,
Acting P.J.
McDONALD,
J.
name="_ftn1" title="">[1] Hodges's third amended complaint does
not set forth all of the relevant facts, but instead refers in part to factual
allegations from his prior pleadings.
name="_ftn2" title="">[2] Hodges's attached to his original
complaint the internal complaint he made against Pollart in June 2005, as well
as an "Employee Warning Report" that Pollart issued to him in October
2005 for failing to show up for a scheduled shift. These exhibits are not attached to the third
amended complaint.
