Holsworth v. Terayon Communication

Filed 6/7/07 Holsworth v. Terayon Communication CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiff Ruby Faye Holsworth sued defendants Terayon Communication Systems, Inc., and Elaine Fleming for breach of an employment contract and related causes of action. The trial court granted defendants motion for summary judgment as to causes of action for employment discrimination and intentional infliction of emotional distress that were alleged in the second amended complaint. It later entered judgment for defendants after granting their motion for summary judgment as to causes of action for breach of contract, promissory estoppel, and negligent misrepresentation that were alleged in the fourth amended complaint. On appeal, plaintiff contends that she raised triable issues of fact as to the causes of action alleged in the fourth amended complaint and as to causes of action for employment discrimination alleged in the second amended complaint. We disagree and affirm the judgment.

scope of review

Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving partys papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. [Citation.] [] A defendant moving for summary judgment meets his burden of proof showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists. (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287.)

The pleadings delimit the scope of the issues on summary judgment. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

In determining whether the papers show there is no triable issue, the court shall consider all evidence set forth in the papers, except that to which objections were made and sustained. (Code Civ. Proc., 437c, subd. (c).) Evidentiary objections not made at the hearing shall be deemed waived. (Id., subd. (b)(5).)[1]

A party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. (Code Civ. Proc., 437c, subd. (f)(2).)[2]

[T]he validity of a summary judgment is to be determined solely by the sufficiency of the affidavits which were before the court when the motion was heard, and this court will consider only the facts before the trial court at the time it ruled on the motion. (Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966.)[3]

fourth amended complaint

By way of background, plaintiff explains in her fourth amended complaint that defendant Terayon hired her in 1997 as an assistant to Gershon Schatzberg, the group director of technical services and support; in April 1999, Terayon promoted Schatzberg to vice-president of worldwide customer support and services.

Plaintiff then alleges the following: (1) on July 15, 1999, Schatzberg agreed to promote her to a technical writer having an annual salary of $70,000; (2) as part of the promotion, Schatzberg agreed to a one-time grant of at least 5000 stock options, exercisable at the then current price and vesting over five years; (3) Terayon lost her paperwork and the promotion did not go through until May 2000; and (4) she never received the salary raise and the 5000 options she ultimately received were worthless because they were priced as of April 2000.[4] Plaintiff asserts that she and Terayon had a contract and Terayon breached the contract. She adds causes of action for promissory estoppel and negligent misrepresentation that are based on the same and related promises to pay increased salary and stock options.

defendants showing

Defendants principally relied on plaintiffs deposition testimony. The testimony concerns plaintiffs conversation with Schatzberg in July 1999.

According to plaintiffs testimony, Schatzberg promoted plaintiff to technical writer and promised her (1) a pay increase to a salary comparable to other technical writers at Terayon, and (2) a stock option grant in accordance with what other technical writers should get. Schatzberg did not state salary or stock-option specifics. At the end of the conversation, plaintiff understood that she would receive a certain salary and stock-option grants at some future point in time. She believed that the salary range would be $65,000-$75,000 and the stock-option grant would be in the ballpark of 5000 shares. These beliefs stemmed from plaintiffs conversations with a coworker, internet research, and knowledge of what Terayon paid others.

plaintiffs showing

Plaintiff principally relied on paragraph 4 of her opposition declaration and page 211, lines 14 through 23 of her deposition testimony.

Paragraph 4 states: In July of 1999, Andrea Vollerson, Manager of Training and Documentation, resigned, leaving the team of technical writers understaffed. Schatzberg told me he was promoting me to technical writer and I would receive a commensurate salary raise and promotional stock option grant along with the promotion. Although company policy prevented Mr. Schatzberg from disclosing the specific salary and number of stock options until the promotion paperwork was completed, the number of stock options to be granted were governed by an internal stock matrix, and the salary could be determined by what Terayon paid others in comparable positions. As Mr. Schatzbergs assistant I was privy to the information about compensation of the employees in his department, and both he and I knew that I should receive options for at least 5,000 shares of common stock and an annual salary of about $70,000. I knew that Andrea Vollerson was earning $110,000 in 1998 as a technical writer/training manager, and that Merrily Alley was an independent contractor earning $55.00 per hour as a senior technical writer. I later learned that when Merrily Alley was hired as a permanent employee in or about August of 1999, she received an annual salary of $80,000.

Page 211, lines 14 through 23, state: Regarding--and, also, I had information. Since I was an executive assistant, I would be responsible for making sure HR paperwork was signed. There were salary ranges. I knew the salary ranges. I knew the salaries of people that worked for [Schatzberg]. I knew how many shares of stock they had received. I knew when people were promoted, I would know how much stock they received, how much their salary increase was. I was given their review information. I typed up some of their reviews.

discussion

The trial court offered the following analysis of the issue and evidence: Plaintiff fails to show that there is a triable issue as to mutual assent to the terms of the alleged oral agreement. Plaintiff admits that neither the amount of salary increase nor the number of stock options that she was to receive upon promotion was discussed during the July 1999 meeting with . . . Schatzberg. . . . In other words, there is no evidence showing that Defendant consented to the terms of the alleged oral agreement. Hence, there was no meeting of the minds for an enforceable contract.

Plaintiff agrees with the core issue but disagrees with the trial courts analysis. She asks us to adopt her reasoning: The essential question regarding the merits . . . is whether Terayons agreement to promote her and to give her a commensurate salary increase and promotional stock options was unenforceable because the exact amount of stock options and salary was not disclosed to her at the time the agreement was originally made. . . . Schatzberg told her in July of 1999 that she was being promoted and that her paperwork would soon be forthcoming showing her new salary and promotional stock options. The company policy was not to discuss the new salary and options until the paperwork had been completed, but the fact that there would be a salary raise and stock options consistent with Terayons pay scale and internal stock matrix was certain and was mutually agreed upon.

We disagree with plaintiff.

Contract formation requires mutual consent, which cannot exist unless the parties agree upon the same thing in the same sense. [Citation.] If there is no evidence establishing a manifestation of assent to the same thing by both parties, then there is no mutual consent to contract and no contract formation. [Citation.] Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. [Citations.] [] Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide. [Citation.] [] Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties obligations and to determine whether those obligations have been performed or breached. [Citation.] To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. [Citations.] Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable. [Citations.] The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. [Citations.] But [i]f . . . a supposed contract does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208-209.)

California courts have routinely refused to enforce employer-compensation promises that are vague and indefinite. For example, in Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 213, disapproved on other grounds in Turner v. Anheuser-Busch,Inc. (1994) 7 Cal.4th 1238, 1251, the plaintiff claimed that his employer had promised to pay reasonable salary increases and annual bonuses appropriate to his responsibilities and performance. The appellate court held that these promises will not support a breach of contract claim . . . . They are not sufficiently certain to be enforced and would improperly impose on the court the burden of making financial and management decisions better left to the parties. (Rochlis v. Walt Disney Co., supra, 19 Cal.App.4th at p. 214.) A similar result was reached in Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761. There, the employer of insurance sales representatives allegedly promised to pay them at the same level as other similarly situated insurance sales representatives so that [they] can maintain a compensation parity in keeping with industry standards. (Id. at p. 768.) The appellate court concluded that the promise was too vague and indefinite to give rise to an enforceable contractual duty. (Id. at p. 770.)

The Supreme Court in Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454,[5] approved of Rochlis and Ladas. It observed: The Ladas court . . . applied the well-established principle that [a]lthough the terms of a contract need not be stated in the minutest detail, it is requisite to enforceability that it must evidence a meeting of the minds upon the essential features of the agreement, and that the scope of the duty and limits of acceptable performance be at least sufficiently defined to provide a rational basis for the assessment of damages. (Id. at p. 467.) It noted that the doctrine of unenforceability of indefinite promises will likely eliminate many employment contract claims that would involve courts in the micromanagement of the workplace. The utility of this doctrine is further illustrated by Rochlis v. Walt Disney Co.[, supra,] 19 Cal.App.4th 201. . . . . In other words, courts will not enforce vague promises about the terms and conditions of employment that provide no definable standards for constraining an employers inherent authority to manage its enterprise. It is to be expected that many alleged employer promises will be unable to cross this threshold of definition to become enforceable contract claims. (Id. at pp. 472-473.)

Here, Schatzbergs vague promises (pay salary comparable to other technical writers; give stock options in accordance with other technical writers grants) contained no definable standards for constraining [the] employers inherent authority to manage its enterprise. (Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 473.) The enforcement of these promises would improperly involve courts in the micromanagement of the workplace. (Id. at p. 472.)

We acknowledge plaintiffs suggestion that Terayon had an objective salary scale and stock-option policy. But plaintiffs testimony is that the number of stock options to be granted were governed by an internal stock matrix, and the salary could be determined by what Terayon paid others in comparable positions. This testimony evidences plaintiffs belief rather than what Schatzberg promised her. Under California law, the subjective, unexpressed beliefs of the parties do not serve as the basis for whether or not a contract is formed. Instead, the mutual assent necessary to form a contract is determined under an objective standard applied to the outward manifestations or expressions of the parties. (Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th at p. 150.) Conclusory assertions cannot raise an issue of fact. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) [T]he party opposing the [summary judgment] motion must submit competent evidence in opposition showing sufficient facts to substantiate its allegations. (McAlexander v. Siskiyou Joint Community College (1990) 222 Cal.App.3d 768, 774.)

Moreover, no liberal construction of plaintiffs testimony could allow an inference that Schatzberg promised plaintiff objectively determinable salary and stock options given plaintiffs direct testimony that (1) Schatzberg did not state specifics, and (2) plaintiffs belief stemmed from her independent knowledge and research. In addition, the only reasonable inference from Terayons company policy (not to discuss new salary and options until the paperwork is completed) is that Terayon does not agree to a new salary and options until a new salary and options are faits accomplis.

The cases that plaintiff cites to support her position are outside the employment context and thus inapplicable. (See, e.g., Holmes v. Lerner (1999) 74 Cal.App.4th 442 [agreement to operate company together was an understanding to share in profits and losses as any business owners would]; Okun v. Morton (1988) 203 Cal.App.3d 805 [agreement to participate in future business opportunities had basic structure of future undertakings]; Bettancourt v. Gilroy Theatre Co., Inc. (1953) 120 Cal.App.2d 364 [agreement to construct first class theater was an understanding for a comfortable theater according to citys code]; Wilson v. Wilson (1950) 96 Cal.App.2d 589 [partnership agreement with open-ended salary was certain given that salary was not an essential term]; Tuck v. Gudnason (1936) 11 Cal.App.2d 626 [agreement to purchase all dress production]; Allen v. Cross (1924) 66 Cal.App. 130 [agreement to purchase a home].)

The only case that plaintiff cites in the employment context is Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th 129. But that case is distinguishable. There, as part of an agreement to hire the plaintiff away from another employer, the defendant agreed to grant the plaintiff stock options for 35,000 shares at $3.25 per share. The parties never expressly agreed on when the options would vest. After the defendant terminated the plaintiff, the defendant refused to grant the stock options and the plaintiff sued for breach of contract and related causes of action. The defendant moved for summary judgment claiming that the stock options never vested because the parties never agreed on vesting. The plaintiff countered that the stock options vested immediately because the parties never agreed on vesting. The trial court granted the motion on the theory that the defendant had terminated the plaintiffs employment before the parties had reached final agreement on the exact terms under which the options would vest. The appellate court reversed the judgment because evidence supported that the defendant intended to match the plaintiffs existing terms of employment, which, in turn, could support a conclusion that the parties had intended the options to vest immediately upon plaintiffs hire. It rejected the defendants argument that a stock-option agreement without conditions for vesting is uncertain as a matter of law.

Thus, in Alexander, the issue was determining the terms of the contract. Here, the issue is determining whether there is a contract at all.

We must conclude that the undisputed facts here show no meeting of the minds as to the essential structure and operation of the alleged [promotion], even if there was agreement on some of the terms. [T]he failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract. (Bustamante v. Intuit, Inc., supra, 141 Cal.App.4th at p. 215.)

Plaintiffs causes of action for promissory estoppel and negligent misrepresentation fail for the same reason as her breach of contract claim. To show promissory estoppel, plaintiff must show a clear and unambiguous promise. (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890.) And Promises too vague to be enforced will not support a fraud claim any more than they will one in contract. (Rochlis v. Walt Disney Co., supra, 19 Cal.App.4th at p. 216.)

second amended complaint

By way of background, plaintiff explains the following in her second amended complaint. During the time in April 2000 when her promotion paperwork was missing, plaintiff received an unfounded, poor annual evaluation from defendant Fleming, who had been her manager for only two and one-half months, without Fleming receiving input for the evaluation from others. Thereafter, plaintiff discussed with Fleming their poor working relationship and objected to Fleming shouting at her on the phone and other times. Fleming called Human Resources Director Linda Edwards, and plaintiff expressed her concern regarding [the] shouting and [Flemings] unreasonable and unrealistic time constraints for completion of assignments. Edwards offered plaintiff a severance package instead of accommodating plaintiffs request for a transfer. Plaintiff then told Edwards and Fleming that she had fibromyalgia and could not be put in stressful situations. Fleming then caused rumors that plaintiff had plagiarized a writing assignment. Fleming caused plaintiffs computer to store deleted files and block password changes. Fleming required plaintiff to complete a senior technical writers two-week assignment in two days though plaintiff was not a senior writer. Fleming implied that plaintiff was not truthful when discussing her assignments. Plaintiff then made a formal complaint about Fleming to Edwards and sought a transfer. Edwards said that no other positions were available and offered a severance package. In June 2000, plaintiff began a medical leave for major clinical depression, acid reflex and anxiety disorder due to stress from what had been happening at work.

Plaintiff then asserted a cause of action for discrimination in violation of the California Fair Employment and Housing Act (FEHA). She alleged the following: (1) She had a disability (fibromyalgia); (2) Terayon discriminated against her because of the disability by not giving her the promotion, pay increase, and stock options as soon as it was announced, putting unreasonable time constraints on her assignments, delaying her annual performance review because of missing paperwork, putting her work under strict scrutiny (changing the password), and refusing to accommodate her disability.

Plaintiff then asserted a FEHA cause of action for harassment that essentially alleged that Terayon via Fleming created intolerable working conditions for her because of her disability by yelling at her in front of others, personally checking on her at home during a personal leave, spreading rumors that she plagiarized a writing assignment, putting her work under strict scrutiny, advising her to resign, and refusing to accommodate her disability.

And plaintiff asserted a FEHA cause of action for retaliation that essentially alleged that defendants put plaintiff under close scrutiny, monitoring her computer and caused plaintiff to be accused of plagiarism all in attempts to squeeze plaintiff out of her job and in retaliation of her complaint against her supervisor . . . Fleming.

legal background

The FEHA prohibits an employer from terminating or otherwise discriminating against any employee on enumerated grounds, including physical disability. (Gov. Code, 12940, subd. (a).)[6] The FEHA also prohibits an employer from harassing an employee on these grounds (id., subd. (j)(1)) and from retaliating against an employee because he or she has opposed practices forbidden under the FEHA (id., subd. (h)).

Disparate treatment, the form of discrimination at issue here, is intentional discrimination against one or more persons on prohibited grounds. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354, fn. 20.) Because direct evidence of discriminatory motive is ordinarily unavailable, California courts have adopted a three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. (Id. at p. 354, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.)[7] Under the McDonnell Douglas test, (1) the plaintiff/employee must set forth sufficient evidence to establish a prima facie case of discrimination; (2) the defendant/employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) the employee then has the opportunity to show the employers articulated reason is pretextual. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 354-356.)[8]

A plaintiffs prima facie burden is minimal, and the specific elements may vary depending on the particular facts. To establish a prima facie case of disability discrimination, a plaintiff must prove he or she suffers from a disability and was subjected to an adverse employment action because of the disability. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)[9] To establish a prima facie case of disability harassment, a plaintiff must show he or she was subject to a hostile work environment based on a disability, and the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.) To establish a prima facie case of retaliation, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the plaintiff to an adverse employment action, and (3) a causal link existed between the protected activity and the employers action. (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Notwithstanding the McDonnell Douglas test, like all other defendants, the employer who seeks to resolve the matter by summary judgment must bear the initial burden of showing the action has no merit. (Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058.) A defendant satisfies this burden by showing that one or more of plaintiffs prima facie elements is lacking, the adverse employment action was based on legitimate, nondiscriminatory factors, or there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203, citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 255, fn. 8.) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at p. 849.)

Before bringing a FEHA cause of action, an employee must exhaust the administrative remedy provided by FEHA by timely filing an administrative complaint with the Department of Fair Employment and Housing (DFEH) and obtaining a right-to-sue letter. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the [DFEH] after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) To exhaust his or her administrative remedies as to a particular act made unlawful by [the FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.] We have recognized, in the context of the [FEHA], that [t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect, and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at p. 1724.)

issues framed by defendants motion

Defendants motion asserted that the FEHA causes of action had no merit because (1) plaintiff had failed to timely exhaust her administrative remedy, (2) plaintiff had not suffered from a defined disability, (3) defendants had a legitimate business reason for any adverse employment action, (4) there was no vacant position to accommodate plaintiffs disability (discrimination cause of action), (5) the elements for harassment were lacking (harassment cause of action), and (6) the elements for retaliation were lacking (retaliation cause of action).

As to the discrimination and retaliation causes of action, the trial court found that (1) defendants had established a legitimate business reason for the alleged discriminatory conduct, and (2) plaintiff had failed to raise a triable issue suggesting that the reason was pretextual.[10] As to the harassment cause of action, the trial court found that the alleged harassing conduct was within the scope of duties necessary to conduct business and manage personnel.

To simplify our analysis, we address the jurisdictional, administrative-remedy point.

defendants showing

Defendants statement of undisputed facts together with plaintiffs reply statement established the following.

Plaintiffs last day at work before taking her vacation and leaves of absence was June 1, 2000.

Plaintiff filed her administrative complaint on June 1, 2001.[11]

Plaintiff relied on 14 items of defendants conduct to support her claims.[12]

Eleven of the 14 items occurred before June 1, 2000.[13]

The three remaining items were never asserted in the administrative complaints.[14]

Defendants showing therefore established a complete defense to plaintiffs FEHA causes of action, namely, the statute of limitations.

plaintiffs argument and showing[15]

Plaintiff overlooks the statute-of-limitations point in her opening brief but mentions it in her reply brief. She argues that the continuing violation doctrine frees the items of defendants conduct from the one-year statute of limitations.

The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period. (Selan v. Kiley (7th Cir. 1992) 969 F.2d 560, 564.) [I]f the alleged discriminatory conduct is a continuing violation, the statute of limitations begins to run on the date of the last occurrence of discrimination, rather than the first. (Miller v. Beneficial Management Corp. (3rd Cir. 1992) 977 F.2d 834, 842.)

The leading case concerning the continuing violation doctrine in California is Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards). The court held that for purposes of the FEHA an employers series of unlawful actions . . . should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of permanence so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile. (Id. at p. 802.) Regarding the permanence element, the court added: [C]onsistent with our case law and with the statutory objectives of the FEHA, . . . permanence in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employers statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile. (Id. at p. 823.) Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. (National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 114.)

Thus, the continuing violation doctrine allows otherwise time-barred adverse employment actions to be considered when they constitute part of a course of conduct that does extend into the limitations period. It does not create adverse employment action where none exists in the first place.

Plaintiff argues the following.

All of [plaintiffs] claims under FEHA were based on continuous violations that lasted until her termination in 2002, and at least continued beyond June 1, 2000. Under Richards v. CH2M Hill, [supra,] 26 Cal.4th 798, 823 . . . , which adopted a modified version of the Berry approach to continuing violation doctrine, when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employers cessation of such conduct or by the employees resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. [Citation.] [] Terayon never agreed to accommodate [plaintiff] by providing her with a different position, but Terayon also never refused to do so until it terminated her employment. Although [plaintiff] went out on a pre-planned vacation on June 1, 2000, she was not hospitalized for her anxiety-related illness until June 3, 2000, and she came back on June 7, 2000 to give a doctors note that she would be unable to work. She did not learn that her promotion had been effectively denied (i.e., that there would be no salary raise and the exercise price of the stock options would not be retroactive) until mid-July, 2000. During all that time, there is no evidence that Terayon ever put her on notice that it would not try to accommodate her disability or that Fleming would behave differently if she returned to work. Even though she never returned to work, Terayon continued paying her bonuses while she was on an unpaid leave, until it terminated her employment on March 25, 2002.

As support for this argument, plaintiff necessarily relies on her reply statement of undisputed facts in which she cited three events that occurred on or after June 1, 2000.

First, plaintiff pointed to Flemings deposition testimony to the effect that, on June 1, 2000, Fleming sent her three emails. The first email indicates that Fleming gave plaintiff a job assignment; the second email indicates that Fleming asked plaintiff to disregard the assignment; and the third email asks plaintiff for a status report to assist Fleming with making a status report to Flemings manager.

Second, plaintiff pointed to her own deposition testimony to the effect that, on July 6, 2000, she found out that her stock-option grant was not what [was] promised. The testimony and an exhibit (No. 9) indicate that Terayon sent the stock options to plaintiff.[16]

And third, plaintiff pointed to Schatzbergs deposition testimony in which Schatzberg acknowledges that he sent a fax to Edwards on June 2, 2000, stating the following: I spoke to [Fleming] today and understand the issues. Frankly, I dont see how [plaintiff] can stay at Terayon after taking such aggressive action in response to what I would consider proper management. The $1500 I was talking about was her merit raise. I do not remember whether she received a raise for the promotion or not. She certainly should have received something for the promotion, but at this point, I would give her nothing unless it increases our liability.

discussion

We reject at the threshold plaintiffs argument insofar as it concerns the failure-to-accommodate claim because plaintiff cites no post-June 1 failure to accommodate.

Plaintiff asserts that the failure to accommodate is evidenced by the denial of a transfer. But the evidence is undisputed that Terayon denied plaintiff a transfer (twice) in May 2000, a date that is outside the limitations period. Plaintiffs argument that Terayon never agreed to accommodate [plaintiff] by providing her with a different position, but Terayon also never refused to do so until it terminated her employment is fatally inconsistent. Either Terayon never agreed to plaintiffs transfer request or it never refused plaintiffs transfer request. If the former, the adverse employment action (not agreeing) was outside the limitations period; if the latter, the negative (not refusing) is, by definition, not an adverse employment action. It is true that an employers ongoing efforts to resolve an employees grievance may show a lack of permanence within the meaning of Richards. (Richards, supra,26 Cal.4th at p. 823.) Here, however, plaintiff refers to no evidence of such efforts. Plaintiffs bootstrapping of a negative act into a positive act would turn the continuing violation doctrine into a boundless exception to the statute of limitations. (Crosland v. City of New York (S.D.N.Y. 2001) 140 F.Supp.2d 300, 308.) To the extent that plaintiff claims that Terayon refused the transfer when it terminated her, the claim is outside the scope of the issues because it was not made administratively.

We also reject at the threshold plaintiffs argument insofar as it concerns the email evidence. This evidence is immaterial because it shows neither harassment nor adverse employment action.

[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employers business or performance of the supervisory employees job. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) Here, the emails were plainly within Flemings supervisory responsibilities, whatever Flemings motives.[17] They therefore cannot support an essential element of the harassment cause of action.

An adverse employment action requires a materially adverse change in the terms of . . . employment. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510.) The action must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, or material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. [Citation.] The employment action must be both detrimental and substantial. (Id. at p. 511.) Here, the emails did not change the terms of plaintiffs employment. Since they do not constitute an adverse employment action, they cannot be part of a continuing series of adverse employment actions so as to revive similar but otherwise time-barred adverse employment actions.

At this point, what remains in the case are two causes of action (discrimination and retaliation) and two facts inside the statute of limitations evidenced by the July 6, 2000 discovery (no retroactive stock-option exercise price) and June 2 fax (no promotion salary increase). Plaintiff, however, makes no discrimination argument based on either of the two facts. She argues the following points that we have rejected: [Defendants] discriminated against [plaintiff] on the basis of her disability in two ways. First, they failed to provide a reasonable accommodation for her known disability as required by FEHA. Second, they intensified a campaign of harassment against her to force her out of her job after they learned that the additional stress they were causing her exacerbated her fibromyalgia. What therefore remains are one cause of action (retaliation) and the two facts. Plaintiff, however, makes no argument that Terayon denied her retroactive stock options because she engaged in protected activity.[18] She claims that Terayon decided not to give her the retroactive salary increase that she admittedly should have received because she had sought accommodation for her disability and tried to invoke the companys complaint procedure against . . . Fleming. This case then boils down to a retaliation cause of action where the adverse employment action is denial of a promotion raise.

As to this issue, defendants showing established a legitimate, nondiscriminatory reason for the decision to promote plaintiff without a raise. Terayons Manager of Human Resources, Zarah Gulamhusein, submitted a declaration in which she opined that the appropriate salary range for an entry-level technical writer during February and March 2000 was approximately $50,000 and added the following: At the time I [conversed with plaintiff in February 2000,] she was already earning $50,000, while the three Senior Technical Writers were only earning an average of $71,000 per year, and had substantially more experience than [plaintiff] in technical writing. As such, according to Terayons policies, [plaintiffs] salary would not have been set in a $65-70,000 per year range given that more experienced Senior Technical Writers were barely in that range and [plaintiff] was already earning the average appropriate salary for an entry-level Technical Writer.

Plaintiff argues that she carried her burden to show that Terayons articulated reason for the adverse employment action was pretextual. She urges that she submitted direct evidence of a retaliatory motive in the form of Schatzbergs fax. She claims that Schatzbergs reference to her taking aggressive action and statement that she should have received something for the promotion, but at this point, I would not give her anything creates a triable issue whether Terayon decided not to give her the retroactive salary increase because she engaged in protective activity.

We disagree with plaintiff for two independent reasons.

First, the adverse employment action is outside the statute of limitations.

Whatever else Schatzbergs fax may imply, the should have received language plainly implies that plaintiff had already received her promotion without a promotion raise. This implication is consistent with the undisputed evidence that (1) Schatzberg and Fleming agreed in March 2000 that plaintiff would receive a 3 percent merit salary increase but no separate salary increase in association with a title change to technical writer, (2) Fleming submitted the paperwork, (3) Fleming learned in April that the paperwork had been lost, (4) Fleming resubmitted the paperwork on or about April 24, (5) plaintiff received the merit increase on April 26 retroactive to April 4, and (6) Fleming told plaintiff on May 16 that the promotion was effective.

And second, apart from the limitations issue, the undisputed evidence conclusively negates any retaliatory motive.

Plaintiff disclosed her fibromyalgia to Fleming and Edwards on April 25, 2000, at which time Edwards made the first severance offer to plaintiff. And plaintiff made her formal complaint about Fleming on May 30. Given that Fleming formally requested the promotion on April 24, the raiseless feature of the promotion could not have been in retaliation for plaintiff seeking an accommodation on April 25 or making a complaint on May 30. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 614-615 [retaliatory motive is proved by showing that the plaintiff engaged in protected activities, that his or her employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter].) In this context, it is unreasonable to infer from the language in Schatzbergs fax that Terayon had a retaliatory motive for promoting plaintiff without a raise. Rather, the language shows no more than Schatzbergs after-the-fact muse about plaintiffs circumstance or, at best (from plaintiffs perspective), Schatzbergs agreement or satisfaction with the April decision to deny a promotion raise.

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] In each motion before the trial court, both parties made certain objections to the other partys evidence. The trial court, however, did not rule on the objections. In the first motion, the trial court did not acknowledge the objections. In the second motion, the trial court acknowledged the objections as follows: In ruling upon the motions for summary judgment or adjudication, the Court generally declines to render formal findings on the evidentiary objections but disregards all inadmissible and incompetent evidence. See Biljac [Associates v. First Interstate Bank] (1990) 218 Cal.App.3d 1410. We do not interpret such an acknowledgement to mean that the trial court impliedly sustained all meritorious objections; we interpret it to mean that the trial court overruled all objections not expressly sustained. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234-238 [criticizing Biljac]; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736; see also Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140 [adopting the views expressed in Sambrano and Laird]; Demos v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566 [Biljac court rejecting Biljac holding].) Waiver for failure to secure a sought-after ruling could be a bitter pill for a party who has tendered valid objections. (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 643.) We nevertheless proceed on the assumption that the trial court overruled all objections. Thus, all the evidence submitted was available for the trial courts consideration (Code Civ. Proc., 437c, subd. (c)) and is available for ours. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 175.)

[2] Plaintiff argues that the trial court improperly considered defendants second motion. She points out that the motion seeks to negate the existence of the employment contract. She notes that defendants had advanced the same issue in the first motion and the trial court had denied that motion. She claims that defendants offered no new facts or law to justify renewal of the issue. But plaintiff made this argument to the trial court and the trial court rejected it. According to the trial court, it had never addressed whether defendants had negated the existence of a contract in the first motion while ruling that defendants had failed to establish a statute of limitations defense. We review whether a trial court appropriately considered a renewed summary judgment motion under the abuse-of-discretion scope of review. (Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 733.) Here, the trial court took the position that it had never denied defendants first motion on the issue asserted in the second motion. Though a trial court might conclude in similar circumstances that it had implicitly denied a motion on issues asserted but not explicitly denied, it is not irrational for a trial court to reason otherwise that issues asserted but not decided (overlooked) were not asserted for purposes of Code of Civil Procedure section 437c, subdivision (f). Moreover, Code of Civil Procedure section 437c, subdivision (f), does not logically apply when a pleading is amended. It is axiomatic that an amended complaint supersedes the original and furnishes the sole basis for the cause of action--the original complaint is dropped out of the case and ceases to have any effect as a pleading or as a basis for a judgment. (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 901.) Here, for example, the breach-of-contract cause of action alleged in the fourth amended complaint (promise in 1999) is slightly different from the breach-of-contract cause of action alleged in the second amended complaint (promises in 1999 and 2000); and the fourth amended complaint contains new causes of action dependent upon the revised breach-of-contract cause of action (promissory estoppel; negligent misrepresentation). Thus, the fourth amended complaint presented defendants with an entirely new case that they should be able to defend independently of what had already occurred in the case.

[3] Thus, a party may not commingle evidence opposing one motion summary judgment with evidence opposing another motion for summary judgment. Plaintiff sometimes commingles evidence. For example, plaintiff writes the following in arguing against the trial courts grant of defendants second motion: most relevant deposition pages . . . were submitted by [plaintiff] in support of her opposition to [defendants] earlier summary judgment motion. We will not consider one motions evidence when evaluating the other motions evidence.

[4] Plaintiffs last day at work was June 1, 2000. Plaintiff took vacation and a medical leave. Thereafter, she took an unpaid personal leave of absence until Terayon terminated her in March 2002.

[5] Scott was disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, footnote 17.

[6] As a special category of discrimination, the FEHA makes it unlawful for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant employee. (Gov. Code, 12940, subd. (m).)

[7] Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354.)

[8] The burden-shifting rules apply equally to claims of harassment and retaliation under the FEHA. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [harassment]; Chen v. County of Orange (2002) 96 Cal.App.4th 926, 948-949 [retaliation].)

[9] In a failure to accommodate case, a plaintiff establishes a prima facie case by showing (1) that he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position . . . ; and (4) that the [employer] refused to make such accommodations. (Rhoads v. F.D.I.C. (4th Cir. 2001) 257 F.3d 373, 387, fn. 11.)

[10] Retaliation, as defined in the FEHA, is essentially a special form of discrimination. It follows that, where an employer conclusively establishes within the context of a particular form of discrimination that an employee suffered adverse employment action as a result of a legitimate business decision, the employee cannot establish a factual predicate for a conclusion that the assertedly differential treatment was based on retaliation.

[11] Plaintiff filed a similar, amended charge on March 15, 2002, but the DFEH had given her a right-to-sue letter on January 30, 2002.

[12] Delayed performance evaluation; unreasonable time constraints; supervisor yelling; delayed promotion paperwork; supervisor home checking; supervisor close monitoring; transfer denial; plagiarism accusation; computer tampering; poor performance evaluation; senior writers assignment; denial of workers compensation papers; nonretroactive stock options; termination of employment.

[13] Delayed performance evaluation; unreasonable time constraints; supervisor yelling; delayed promotion paperwork; supervisor home checking; supervisor close monitoring; transfer denial; plagiarism accusation; computer tampering; poor performance evaluation; senior writers assignment.

[14] Denial of workers compensation papers; nonretroactive stock options; termination of employment.

[15] Our scope of review, though independent, is necessarily dependent upon the arguments made to us by plaintiff. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) For simplicity and clarity, we therefore focus on plaintiffs briefs and will revisit plaintiffs trial court papers only when the context requires.

[16] The exhibit is a memo from Terayons stock administration department. It states: Enclosed please find the following documents, which pertain to a stock option that was granted to you by Terayons Board of Directors: [e