Huhs v. NRG El Segundo Operations

Filed 7/25/07 Huhs v. NRG El Segundo Operations CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment and order of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Judgment is reversed; order regarding reconsideration and sanctions is reversed; order regarding attorneys fees is affirmed; matter is remanded with directions.

Appleton, Blady & Magnanimo and Heather Appleton for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Douglas R. Hart and Geoffrey D. DeBoskey for Defendants and Respondents.

_______________________________________

In this appeal, plaintiff Jeffrey Huhs (plaintiff) challenges the summary judgment granted to defendants NRG El Segundo Operations, Inc. (El Segundo), NRG Energy, Inc. (Energy), NRG Western Affiliate Services, Inc. (Western Affiliate Services, collectively NRG), Audun Aaberg (Aaberg), Robert Rea (Rea), and Keith Goodner (Goodner, and collectively with the corporate defendants, defendants).[1] Additionally, plaintiff challenges the trial courts denial of his request for a continuance on the hearing of the summary judgment motions.

Plaintiff also challenges the trial courts denial of his request for reconsideration, denial of his request to treat the motion for reconsideration as a motion for new trial after the court entered a judgment while the motion for reconsideration was pending, and imposition of sanctions in connection with the denial of his request for reconsideration. Plaintiff further challenges the denial his motion for new trial which was denied by operation of law when the court set a hearing on the motion past the statutory time on which the court had jurisdiction to rule on the motion. Lastly, plaintiff challenges the courts award of attorneys fees to defendants Rea and Goodner.

Regarding plaintiffs challenge to the judgment itself, we find that the papers submitted by the parties in support of, and in opposition to, the various summary judgment motions filed by defendants support the trial courts decision that there are no triable issues of material fact on the first six of plaintiffs seven causes of action. However, the trial courts minute order on the summary judgment motions did not address plaintiffs seventh causes of action and thus it remains outstanding. Summary judgment, therefore, should not have been ordered. Nevertheless, because the defendants respective motions requested summary adjudication of issues as an alternative to summary judgment, the court should have entered an order granting adjudication in favor of the defendants on the first six causes of action. We will remand the matter with directions to the trial court to consider and rule upon the defendants motion with respect to the seventh cause of action and, depending on that ruling, to conduct such further proceedings as may be appropriate.

There was no error or abuse of discretion in the denial of plaintiffs request for a continuance of the hearing on the summary judgment motions. However the denial of his motion for reconsideration and the award of sanctions cannot stand given that the court had no jurisdiction to even consider the motion because of the intervening judgment. As for plaintiffs challenge to the denial by operation of law of his motion for new trial, that result occurred because he did not monitor the resetting of the hearing on the motion. Lastly, we find no cause to reverse the courts award of attorneys fees to defendants Rea and Goodner.

We will remand the case to the trial court for further proceedings on the request for summary adjudication of issues on the seventh cause of action.

PROCEDURAL BACKGROUND OF THE CASE[2]

1. Allegations in Plaintiffs Complaint

In a motion for summary judgment, the parties pleadings set the parameters for the scope of the issues. The party bringing the motion essentially contends that the material factual claims that arise from the pleadings do not need to be tried because they are not really in dispute. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Thus, claims not made in a complaint cannot raise an issue in a summary judgment motion.

Plaintiff filed this suit on December 20, 2004. The operative complaint is plaintiffs first amended complaint (complaint). According to the complaint, plaintiff is a white, male employee of one or more of the NRG companies. Defendant Aaberg was the regional plant manager of El Segundo when most of the events in this case occurred, defendant Rea is the operations and maintenance (O&M) manager of El Segundo, and defendant Goodner is the business manager and regional business unit manager of El Segundo. In his complaint, plaintiff alleges that the following occurred during the period 2001 to 2005.

Plaintiff began working at El Segundo in June 2001 as a shift supervisor. In April or May 2002, hecomplained to Aaberg and to the person who at that time was the O&M manager (Richard Orlowski), about a sexually hostile work environment, stating that his co-employees were engaging in inappropriate conversations in the workplace about female co-workers breasts, inferences to lesbians, and an apparent affair between two co-workers. In June 2002 plaintiff received an overall performance rating from Orlowski of exceeds standards.

Also in June 2002, one of his co-workers, Joyce Vialto, complained to him about sexually inappropriate conduct by defendant Aaberg and another person, and plaintiff forwarded that information to Orlowski and to a Marty Crotty, a regional manager. Plaintiff participated in defendants investigation of that sexual harassment allegation. After his participation in the investigation, defendant Aaberg developed a negative attitude towards him. In September 2002, plaintiff laterally transferred to the position of instrumentation & electrical (I&E) supervisor. He received an overall performance rating from Orlowski of exceeds standards in May 2003.

In October 2003 the O&M manager position at the El Segundo plant became available when Orlowski resigned from that position. Defendants placed defendant Rea in the position on an interim basis without conducting interviews. That same month, Aaberg told plaintiff that Rea was given the interim position because Rea had been with the company longer than plaintiff and had expressed an interest in moving up in the company. However, plaintiff had earlier expressed the same interest.

Aaberg also told plaintiff in October 2003 that he would work with plaintiff in plaintiffs attempt to receive educational assistance benefits from NRG if plaintiff were to be accepted into an MBA program at Claremont College. Later, plaintiff was given false information about NRGs education assistance program, including that the program was suspended due to bankruptcy proceedings. Plaintiff never received the application forms for the program that he requested.

When the opening for the permanent O&M Manager position was formally posted in February 2004, the requirements for the position were misrepresented. Defendants changed the qualifications so that Rea was qualified for the position. Plaintiff submitted an application. Neither he nor the other applicants were interviewed. Instead, Aaberg simply announced on April 30 that Rea had accepted the position of O&M Manager. After plaintiff complained that he had not been given the O&M manager position, he was warned by a number of supervisors and other employees to be careful not to give Aaberg a reason to fire him.

Plaintiff filed an EEOC complaint in May 2004 alleging retaliation based on his having complained of a sexually hostile work environment and participated in an investigation of sexual harassment, and alleging discrimination based on age. Plaintiff alleged that not only is Rea less qualified than plaintiff for the O&M manager position but Rea is also younger than plaintiff.

In June 2004, defendant Rea, who was now plaintiffs supervisor, gave plaintiff an overall performance rating of meets minimum standards, which is the equivalent of a 2 out of 5 rating. Plaintiff was informed that his performance was reviewed by a committee constituted of defendants Rea, Aaberg and Goodner. Rea acknowledged to plaintiff that he should have spoken to plaintiff, prior to the evaluation, about how plaintiffs performance was viewed, and Rea could not give plaintiff any examples of problems with plaintiffs performance, other than the vague examples mentioned in the written performance evaluation. However, plaintiff has always performed his duties in a diligent, competent and professional manner when working for NRG.

The performance evaluation caused plaintiff to amend his EEOC complaint and add a charge that the evaluation was unfair and was intended to justify having given Rea the O&M manager position. Plaintiff also amended the EEOC complaint by adding a charge that he had been denied the right to review his personnel file and he had received only a 1/2% raise because of the biased performance evaluation.

In October 2004 plaintiff filed a complaint with Californias Department of Fair Employment and Housing (DEFH) in which he alleged he was denied a promotion and benefits in retaliation for his participating in the sexual harassment investigation and filing a charge of discrimination with the EEOC, and also because of his physical disability or perceived disability. He received a right to sue letter from the EEOC in September and a right to sue letter from the DFEH in November.

In early August 2004, there was an ammonia supply line failure at defendants El Segundo plant that resulted in a leak of ammonia, which is a hazardous material. Although defendants have a specific procedures in place for handling such a leak so as to minimize the risk of harm to employees and the public, Aaberg and Rea decided to not follow the procedures that day and thus caused such a risk to safety. Plaintiff asserted to defendants that the proper safety procedures had not been followed.

When plaintiff takes a day of vacation or uses one of his personal time off days, he is charged for the whole vacation day or the whole personal time off day and they are deducted from his account even though he is required to perform work on those days. As already noted, this lawsuit was filed on December 20, 2004.

In March, Aaberg announced he was resigning from the position of regional plant manager and defendants posted the coming availability of that position. Plaintiff was informed that applications for the position would be pre-screened and only applicants who met the minimum qualifications would be granted an interview. Plaintiff submitted an application. He was given an interview in April. In May he was told that although he interviewed well, he was not one of the final candidates for the position because he did not have experience as a manager. Had he been selected for the position of O&M manager in 2004 he would have had sufficient managerial experience to qualify him for final candidate consideration for the regional plant manager position.

2. Plaintiffs Seven Causes of Action

Plaintiffs first and second causes of action are against all of the defendants. His third through seventh causes of action allege claims only against the NRG defendants. The specific claims made by the plaintiff may be summarized as follows:

a. First Cause of Action

Defendants violated Government Code section 12940, subdivision (h),[3] when they denied plaintiff the position of O&M manager, denied him wage increases, gave him low ratings on his performance evaluation, and otherwise harassed him in retaliation for his opposing the sexual harassment he observed and opposing the retaliation to which he was subjected when he complained to the EEOC.

b. Second Cause of Action

Defendants engaged in unlawful retaliation against him with respect to the terms and conditions of his employment (such as excluding him from a safety meeting), in violation of Labor Code section 6310 et seq., because he objected to unsafe working conditions during the ammonia leak.

c. Third Cause of Action

The NRG defendants violated Government Code section 12940, subdivision (a) by failing to promote him, and such failure to promote was based on his having reported sexual hostility in the workplace, having participated in the investigation of sexual harassment, and having filed a lawsuit against defendants.

d. Fourth Cause of Action

The NRG defendants regard plaintiff as having a physical disability and because of that perception, they engaged in discrimination against him, including denying him the positions of O&M manager and regional plant manager, either because of the perceived disability or because they believe this perceived disability will prevent him from performing the job duties that those positions entail, and such discrimination is a violation of Government Code section 12940, subdivision (a).

e. Fifth Cause of Action

This count is based on Government Code section 12940, subdivision (k), and plaintiff alleges that the NRG defendants failed in their duty to take reasonable steps necessary to prevent unlawful discrimination, harassment and retaliation from occurring at their workplace and as a result, plaintiff was subjected to such things.

f. Sixth Cause of Action

The NRG defendants wrongfully took adverse employment actions against him, in violation of Government Code sections 12940 and 12941, when they pretextually lowered his performance ratings, denied him promotion to the position of O&M manager, and denied him bonuses and wage increases, and in doing such wrongful acts, defendants were motivated by his complaints of illegal discrimination, retaliation and harassment.

g. Seventh Cause of Action

As a benefit of his employment, plaintiff alleges that he is entitled to paid vacation time off and paid personal time off, and in connection therewith, he has a right to be relieved of his job duties on the days when he is charged with taking a full vacation day or a full personal time off day, but despite such right, the NRG defendants have wrongfully deprived him of his vacation pay and personal time off by charging him for full days when he has actually performed work on such days, and by requiring him to be available by cell phone on such days.

3. The Motions for Summary Judgment Or Alternatively,
Summary Adjudication of Issues

On August 26, 2005, the NRG defendants filed a motion for summary judgment or, alternatively, summary adjudication of issues. Additionally, on the same date, defendants Aaberg, Rea and Goodner each filed their own separate summary judgment/adjudication of issues motion. A hearing on these motions was held on November 9, 2005. The court stated it had not spent enough time with the papers yet and it directed the parties to present their arguments and the matter would then stand submitted. On November 28, 2005, the court issued its minute order granting the motions.

On December 13, 2005, plaintiff filed a motion for reconsideration, with a reserved hearing date of January 12, 2006, however the trial court signed and filed a judgment on December 15, 2005. The court considered the merits of the motion for reconsideration, determined it was without merits and imposed a monetary sanction, and denied plaintiffs request to treat the motion as a motion for new trial. Plaintiff also filed a motion for new trial and despite an agreement between the parties and the court to have the motion heard prior to the statutory 60 days for ruling on the motion, the trial court rescheduled the hearing date to a time after the 60 days, with the result that the motion was deemed denied by operation of law.

DISCUSSION

1. Standard of Review

We review, on a de novo basis, the order granting defendants motion for summary judgment. (Price v.Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiffs causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).)[4]

If a defendants presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action, or on a defense thereto, the burden shifts to the plaintiff to present evidence showing that contrary to the defendants presentation, a triable issue of material fact actually exists as to those elements or the defense. ( 437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. Thus, section 437c, subdivision (c), states that summary judgment is properly granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865‑866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.[5]

2. Issues Regarding the Trial Courts Evidentiary Rulings

In deciding an appeal from a summary judgment, we generally consider all of the evidence presented to the trial court in the moving and opposition papers, including uncontradicted inferences reasonably deducible from the evidence, except for the evidence to which objections were made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)

However, if the party who propounded evidence to which objections were made and sustained by the trial court challenges, in its appellate brief, the trial courts adverse evidentiary rulings, we will examine those rulings using an abuse of discretion standard. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The same is true for evidentiary objections which were overruled. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 739.) If no such challenge is made, we consider the issue of the correctness of the trial courts evidentiary rulings to have been waived by the party whose evidence was excluded, or the party whose evidentiary objections were overruled. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)

To avoid a finding, by a reviewing court, that a challenge to a trial courts evidentiary rulings has been waived, the evidentiary rulings must be affirmatively challenged on appeal. That is, the asserted erroneous evidentiary rulings must be identified as a distinct assignment of error and be supported by distinct analysis. (Roe v. McDonalds Corp. (2005) 129 Cal.App.4th 1107, 1114.) Thus, we look to see if the person challenging an evidentiary ruling has set out the specific evidence, the objection to that evidence made by the other party, the trial courts ruling on the objection, and an argument detailing why the ruling was incorrect. That must be done for each ruling asserted to be erroneous. Plaintiff has not made such a presentation here.

Here, plaintiff argues that the trial court improperly excluded his evidence because (1) trial courts are required to liberally construe the affidavits of the party opposing summary judgment, (2) the court may only accept a moving partys evidence as an undisputed fact if such evidence is not contradicted by the evidence of the party opposing the summary judgment motion, and (3) facts alleged in the evidence of the opposing party, together with the reasonable inferences from such facts, must be accepted as true. In making such a presentation, plaintiff is arguing generalities. We cannot agree that this is sufficient to constitute an affirmative challenge to the trial courts specific evidentiary rulings. It is not a distinct analysis of each individual objection made by defendants that was sustained by the trial court. If plaintiffs presentation were all that is required in an appeal, then ruling on individual evidentiary objections would be a useless act by the trial court.

Regarding the trial courts hearsay rulings, it is not sufficient to lump them all together and argue that the hearsay statements are admissible under Evidence Code section 1222 because they are party admissions. Section 1222 is not the blanket admission ticket that plaintiff portrays it to be.

Because plaintiff has not presented this court with sufficient analysis for why the sustained evidentiary objections made by defendants should have been overruled, he has waived his right to assert error in the trial courts rulings.

3. The Law Governing Causes of Action Asserting Employer Retaliation
Against an Employees Protected Activity, and Asserting Employer
Discrimination Based on a Protected Class

Plaintiff contends defendants violated the FEHA by retaliating against him for his having participated in an investigation of Joyce Vialtos claim of sexual harassment, and also for his having filed EEOC and FEHA claims. In reviewing such retaliation charges, courts apply a three-step analysis. Has the plaintiff established a prima facie case of retaliation? Has the defendant presented a legitimate, nonretaliatory reason for its challenged acts/adverse employment actions? Has the plaintiff demonstrated that the defendants asserted legitimate, nonretaliatory explanation for its acts is actually a pretext for what amounts to retaliation. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)

For a plaintiff to meet his first burden, that is, establish a prima facie case of retaliation, the plaintiff must show that (1) he engaged in a protected activity, (2) thereafter he was subjected to an adverse employment action by his employer, and (3) there is a causal link between the plaintiffs protected activity and the employers action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.) A plaintiff may establish the casual link/retaliatory motive by inferences derived from circumstantial evidence that the employer knew of the plaintiff employees protected activities and that within a relatively short time after the plaintiff engaged in those activities the employer took its allegedly retaliatory action against the employee. (Morgan, supra, at pp. 69‑70.) However, once the employer produces substantial evidence of a legitimate, nonretaliatory motive for the adverse employment action taken against the plaintiff (which is a burden of production for the employer, not a burden of persuasion), then the presumption of retaliation created by plaintiffs prima facie case is dispelled and the burden shifts back to the plaintiff to prove intentional retaliation, that is, to show that the employers reason for the adverse employment action is a pretext intended to mask the employers illegal motive for the adverse action against the plaintiff. (Id. at p. 68.) The employee can demonstrate the retaliation/pretext directly by persuading the court that the employer was more likely motivated by a desire to retaliate, or indirectly by showing that the explanation given by the employer for its adverse employment action is not worthy of belief. (Ibid.) Here, the parties respective burdens of production occurred at the summary judgment stage and thus defendants were required to produce evidence first.

When examining a plaintiffs claims of unlawful employment discrimination, courts use a three-step analysis that is similar to that used for examining retaliation claims. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 67‑70.) The plaintiff must present a prima facie case of discrimination. He does that with evidence that he is member of a protected class, he was qualified for the employment position he sought or was performing competently in the position he held, he suffered an adverse employment action (termination, demotion, denial of an available position, etc.), and some other circumstance suggests a discriminatory motive. From this prima facie case, a rebuttable presumption of discrimination arises. Then, the employer must rebut the presumption with evidence that its employment action was taken for a legitimate, nondiscriminatory reason. As with claims of retaliation, the employer bears only a burden of production, not persuasion. The employer  need not persuade the court that it was actually motivated by the proffered reasons. [Citation.] It is sufficient if the [employers] evidence raises a genuine issue of fact as to whether it discriminated against the [employee]. [Citation.] (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 663-664.) If such evidence is produced, the rebuttable presumption of discrimination raised by the plaintiffs prima facie case is dispelled and the plaintiff must present evidence that the employers proffered explanation for its employment action is a pretext for discrimination, or any other evidence of discriminatory motive. As with claims of unlawful retaliation, the burden of persuasion remains with the plaintiff. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356.)  [T]he plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employers proffered explanation is unworthy of credence.  [Citations.] Circumstantial evidence of  pretense must be specific and substantial in order to create a triable issue with respect to whether the employer intended to discriminate on an improper basis. [Citations.] With direct evidence of pretext,  a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. [Citation.] The plaintiff is required to produce very little direct evidence of the employers discriminatory intent to move past summary judgment. [Citation.] (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 68-69.)

Here, the trial court found that plaintiff did not present direct or circumstantial evidence, nor evidence from which it can be reasonably inferred, that defendant made any decision or took any action with respect to his employment in retaliation for plaintiff engaging in any protected activity or in discrimination against plaintiff on account of his age or disability or perceived disability.

4. Overview of Plaintiffs Retaliation Claims

Plaintiff complaint charges that defendants retaliated against him in three ways. First, defendant Aaberg did not give him the interim position of O&M manager after Orlowski left that position in October 2003 and then did not give him the permanent O&M manager position in April 2004. Second, he was given a performance evaluation in June 2004 with a low overall rating (meets minimum standards), and was only given a 1/2% raise in pay. Third, defendants did not give him the plant manager job when Aaberg left that position in March 2005. We note that plaintiff alleged in his complaint that in June 2002 and May 2003, he received performance evaluations from Orlowski with an overall ratings of exceeds standards.[6]

Regarding the motivation for defendants alleged retaliation, plaintiff asserts several motivators. One is his involvement in the investigation of Joyce Vialtos charge of sexual harassment. He also asserts that later, defendants retaliated against him again because he filed an EEOC claim, and he specifically links the low performance rating he was given in 2004 to his having filed the EEOC claim. However, plaintiff stated he believes there is an additional reason why his performance evaluation was downgradedso that defendants would have a justification for not giving him the O&M manager position. Additionally, plaintiff asserts his having filed the instant lawsuit in December 2004 was a motivation for retaliation and he links it to his having been denied the position of plant manager when Aaberg left that job in March 2005.

5. Evidence Presented by the Parties Respecting the O&M Manager
Position Going to Rea Instead of to Plaintiff[7]

Plaintiff began working for defendant NRG in June 2001 as a shift supervisor at the El Segundo plant. At that time, defendant Aaberg had been the plant manager there since 1999. Aaberg was responsible for management of the El Segundo and Long Beach plants and supervision of plant personnel. As plant manager, Aaberg was plaintiffs second level supervisor. Richard Orlowski was plaintiffs first level supervisor from the time plaintiff came to work at El Segundo until Orlowski left in October 2003.

Plaintiff stated the following three things happened in June 2002. He did not state in which order the first two occurred. One, he received an overall performance rating of exceeds standards from his supervisor Richard Orlowski. Two, a co-worker, Joyce Vialto, complained to him that she was being sexually harassed by defendant Aaberg and another person, and plaintiff forwarded details of Vialtos complaint to Marty Crotty, the regional manager of a company called West Coast Power, and to Richard Orlowski. Three, at Orlowskis directive, plaintiff participated in NRGs investigation of Vialtos sexual harassment claims, including allegations specifically against Aaberg. Plaintiffs part in the investigation was to speak with an Eric Bachman (from corporate Human Resources) and with David Lloyd, whom plaintiff knew was an attorney employed by NRG. He met with those two men for approximately 30 to 45 minutes in the office of defendant Goodner. Goodner was not present during that meeting.

According to plaintiffs complaint, a month or so earlier, plaintiff had complained to Aaberg and Orlowski about a sexually hostile work environment, to wit, that his fellow employees were engaging in inappropriate conversations regarding female co-workers breasts, inferences to lesbians and an affair between two co-workers. However, plaintiff testified at his deposition that he believes he was subjected to retaliation not because he revealed such inappropriate work environment, but rather because of his involvement in the investigation of Joyce Vialtos charge of sexual harassment. He stated that at that point, [he] went from someone who was constantly being told that [he was] on the right track for promotion to the opposite [end] of the spectrum. (Italics added.) He stated that on the surface it appeared that [he] was siding with Joyce during that investigation. Asked why he thought Aaberg believed he sided with Vialto, plaintiff answered that it explain[s] why he treated me differently after that occurred.

Plaintiff did not offer direct proof that Aaberg knew about plaintiffs participation in the investigation, much less that Aaberg knew that plaintiff had anything negative to say about Aaberg, assuming arguendo he did say anything negative about Aaberg. It is important to note that although plaintiff asserted that things went south for him right after he took part in the investigation into Vialtos charges of sexual harassment, the following year his performance evaluation was very positive. Plaintiff acknowledged at his deposition that as far as he knows, no one openly criticized him for participating in the sexual harassment investigation.[8]

In May 2003, 11 months after he cooperated in the Vialto investigation, he received an overall performance rating of exceeds standards from supervisor Orlowski, who at that time was still the O&M manager at the El Segundo plant. Plaintiff interviewed for the O&M manager position at the Long Beach plant in August 2003 however he did not move to that position.

In October 2003, Orlowski resigned from his O&M position at El Segundo, but defendants did not conduct interviews to fill that slot. Rather, Aaberg announced on October 15 that defendant Rea had been placed in that position on an interim basis. Then in February 2004, defendants posted the position for a permanent O&M manager. The posting erroneously stated the position requires a college degree or equivalent experience with two years of college education. It should have stated that a four-year college degree or equivalent experience was required. Rea stated in his interrogatory responses that he has a high school diploma and is currently pursuing a bachelor of arts degree in business.

Plaintiff submitted his application for the permanent O&M manager slot along with his resume, which plaintiff states highlights his years of experience in the operation and maintenance of electric power generation facilities (he states he has more than 25 years of experience), and references [his] educational experience, including [his] Bachelor of Science in Business Administration-Computer Information Systems.

Defendant Aaberg stated in his declaration that he did not bother to interview any of the three people who applied for the permanent O&M manager position (plaintiff, defendant Rea and an external candidate, Robert Poitras) because he knew all three men personally and was familiar with the quality of their work since all three had worked at the El Segundo plant.[9] Further, he had already recently (August 2003) interviewed plaintiff for the O&M manager position at the Long Beach plant.

Aaberg asserts he selected Rea for the permanent O&M manager position because he believed Rea to be the best qualified applicant. Although plaintiff and Robert Poitras have college degrees,[10] Rea had been performing the job successfully on an interim basis and Aaberg believed that Rea had the leadership, team building and communication style that Aaberg wanted for the position.[11] On April 30, 2004 Aaberg announced that Rea had accepted the position.

It has been plaintiffs understanding that NRG interviews qualified applicants for open positions before it selects a candidate to fill the position. On May 3, 2004, plaintiff e-mailed the regional plant manager, Gregory Hughes, and asked him how the O&M manager position could be awarded to Rea without NRG conducting interviews. Plaintiff told Hughes he felt unfairly passed over for the job. On that same day plaintiff e-mailed Aaberg to state he was extremely disappointed that the position had been given to Rea without interviews, and plaintiff asked to discuss the matter with Aaberg.

The next day, May 4, Aaberg sent an e-mail to Steven Christianson, the human resources manager, with copies to plaintiff and Goodner. Aaberg told Christianson that he had just offered plaintiff a meeting to discuss plaintiffs disappointment over not being given an interview for the permanent O&M manager position and in response plaintiff told Aaberg that he did not need to meet with Aaberg because he already knew Aabergs point and because he (plaintiff) had other ways to pursue the matter. Aaberg asked Christianson if he (Aaberg) should nevertheless meet with plaintiff and explain my expectation regarding working with Bob Rea. A few minutes later, plaintiff e‑mailed regional plant manager Gregory Hughes stating that he did not feel comfortable discussing the O&M manager position with Aaberg and for that reason had turned down a meeting with him. Plaintiff indicated he was concerned about his continued employment, and about retribution for having questioned Aabergs decision to give the position to Rea. Plaintiff asked that instead he be permitted to discuss his concerns with Hughes or someone from human resources.

By letter dated May 7, plaintiff wrote a letter to human resources manager Steven Christianson asking to speak with an EEO or HR representative regarding the fact that Rea and not plaintiff had been chosen to fill the position. Nowhere in this three-page letter is any mention made of the fact that plaintiff had participated in the investigation of Ms. Vialtos sexual harassment charges. Nor does the letter assert retaliation or physical disability as reasons for why Rea and not plaintiff was promoted. Rather, the letter states plaintiffs belief that he was passed over because of personal bias. The letter states that Rea told a former employee that Aaberg will never promote plaintiff because Aaberg doesnt like plaintiff because plaintiff argues with Aaberg instead of agreeing with him; the letter also states that when Rea was given the interim position, plaintiff was informed by many people, including supervisors and the people who report to him, that he was not given the interim position because Aaberg hates him and he should be careful and not argue or disagree with Aaberg, and then when Rea was given the permanent position, people warned him not to give Aaberg a chance to fire him. The letter also states that Aaberg told plaintiff that Goodner has a problem with plaintiff because Goodner and Rick Orlowski did not get along and since plaintiff worked for Rick Orlowski, plaintiff was perceived by Goodner as being one of Orlowskis guys.

On May 10 plaintiff telephoned Steven Christianson and discussed with him Ms. Vialtos sexual harassment complaint and the investigation into it, and the awarding of the O&M manager position to Rea despite the fact that I was more qualified for the position. Plaintiff spoke with Christianson again on May 13 about the same issues.

On May 17 plaintiff filed a claim with the EEOC in which he alleged discrimination based on age (plaintiff asserted that Rea was younger and less qualified than him for the O&M manager position), and retaliation based on plaintiffs having reported a sexually hostile work environment in April or May 2002 and participated in the investigation of Vialtos charges against Aaberg in June 2002. The next day he met with Steven Christianson and during their meeting he told Christianson that he had filed the EEOC claim. On May 26, plaintiff e-mailed Christianson one more time, again asking for details about the decision to give the position to Rea as well as for information about the NRG education assistance program.

Aaberg stated in his declaration that he did not know about plaintiffs involvement in Joyce Vialtos sexual harassment complaint until he learned about it in plaintiffs EEOC complaint in late May or early June of 2004, and thus, he was not aware of it when he selected Rea to fill the O&M manager position vacated by Orlowski.

Gregory Hughes, the regional plant manager for defendant Western Affiliate Services, stated in his declaration that he approved the selection of Rea in April 2004, and at the time of that approval, he was not aware of plaintiffs participation in the investigation of Ms. Vialtos sexual harassment charges and did not become aware of such participation until late May or early June 2004 when he learned of the allegations in plaintiffs EEOC complaint.

Defendant Rea also stated in his declaration that he did not know of plaintiffs involvement with Ms. Vialtos sexual harassment charges until he learned about it in plaintiffs EEOC complaint in late May or early June 2004. Thus, he stated, he did not know about it when he was selected for the O&M manager position.

Defendant Goodner stated in his declaration that he began working at the El Segundo power plant in 1999. He handles administrative issues, including accounting. He had no role in selecting Rea for the position of interim O&M manager position. The requirement for the permanent position of O&M manager is a four‑year college degree or equivalent experience, but the job posting for the position erroneously stated college degree or equivalent experience with two years of college education. He did not make the decision to select Rea for the permanent position but he did speak with Aaberg regarding the logistics of the selection process and the structure of the O&M manager position. Like the other defendants, Goodner stated he did not know of plaintiffs participation in the investigation of Joyce Vialtos sexual harassment charges when Rea was selected. Rather, he learned about it in plaintiffs EEOC complaint in late May or early June 2004. At his deposition, plaintiff acknowledged that he has no basis for believing that Goodner knew, prior to the filing of plaintiffs EEOC claim, that plaintiff had participated in the Vialto investigation. In his declaration filed in support of his opposition to the summary judgment motions, plaintiff opined that it is inconceivable to [him] that Defendant Goodner would not have been aware in June 2002 that corporate Human Resources and corporate counsel were conducting an investigation into Ms. Vialtos sexual harassment complaints at the El Segundo Plant. We observe that knowing there was an investigation and knowing that plaintiff was part of the investigation are two different things.

6. Analysis of the Retaliation Claim Regarding the O&M Manager Position

Defendants presented a straight forward non-retaliatory reason for selecting Rea over plaintiff for the position of O&M managerAaberg believed Rea was better for the position. Rea had far more experience with the company (20 years more than plaintiff), and he had been performing the duties of an O&M manager on an interim basis. Moreover, he was better suited to work with Aaberg. Although plaintiff describes that characteristic negatively by saying that Rea is a yes man, the fact remains that Aaberg valued his being able to get along with Rea. Plaintiff stated at his deposition that Aaberg told him early on that what he wanted in the person who would be the new O&M manager was someone who can get along. Given the personality differences between plaintiff and Aaberg, Aabergs choice of Rea over plaintiff demonstrates a nonretaliatory personnel decision.

Indeed, when plaintiff had an opportunity in his May 7, 2004 letter to Christianson to charge retaliation in connection with the O&M manager position being given to Rea rather than himself, plaintiff did not make that charge. Rather, he attributed his not receiving the position to personality issues he had with Aaberg. At his deposition, plaintiff acknowledged there were strong personality differences between himself and Aaberg and that the differences played a role in his not being awarded the O&M manager position. Plaintiff testified that his not being willing to always agree with Aaberg played a large part in why he did not have Aabergs support. Further, Aaberg stated that Rea had leadership, team building and the communication style that he wanted in an O&M manager. Although both Rea and plaintiff received good performance reviews in 2003, Rea was rated better in categories corresponding to those three attributes than plaintiff was. (See fn. 9, ante.) And those performance reviews were made by Richard Orlowski, not by Aaberg. Further, given that Rea, plaintiff and the other candidate were known to Aaberg, it was not unreasonable for Aaberg to dispense with interviews, no matter what company policy usually required. And, as defendants point out, even though the education requirements stated in the posting of the open position were incorrect, defendants did not need to change the education requirements of the O&M manager position in order to avoid hiring plaintiff since the third candidate had the education that plaintiff has but Rea did not havea four-year college degree.

Plaintiffs claim that he was not made the O&M manager because he was being retaliated against for his having participated in the investigation of Joyce Vialtos sexual harassment charges is just thata speculative claim with no support. Aaberg, Rea and Goodner all stated that when Rea was chosen for the O&M manager position they did not know that plaintiff was involved in an investigation concerning Vialto. Moreover, plaintiff has no proof that any of those men know what plaintiff said during the investigation, nor proof that any of them were negatively affected by the investigation. Nor is there any evidence that anyone else who was interviewed during the investigation suffered retaliation.

Plaintiff has not presented the evidence to create a triable issue of fact that defendants stated legitimate, nonretaliatory reason for giving the position to Rea rather than to plaintiff is just a pretext intended to cover up defendants illegal motive for denying plaintiff the job. Plaintiff has not presented evidence to support a finding that defendants reason for promoting Rea was more likely retaliation against plaintiff than it was Reas being more qualified for the position. Nor has plaintiff presented evidence to support a finding that defendants proffered reason for promoting Rea is not credible.

Further, plaintiff has not presented his own prima facie case for retaliation in connection with his failing to be promoted to the O&M manager position. While plaintiff demonstrated that he engaged in protected activity (cooperating with the investigation into Joyce Vialtos charges), and that later he was subjected to an adverse employment action (not being promoted to the O&M manager position), the evidence will not support a finding of a causal link between the two. The adverse employment action occurred essentially two years after plaintiff was interviewed during the investigation. Moreover, a year after his interview in the investigation, plaintiff was given a very good overall performance rating (exceeds standards), and a few months after that he was given an interview for the O&M manager position in Long Beach. Further, plaintiff acknowledge that after the Vialto investigation, although there were times when Aaberg criticized him and snubbed him, there were also times when Aaberg would compliment him on his work performance, including many compliments on a training program plaintiff developed. Aaberg also took care to advise plaintiff that if plaintiff transferred to the Long Beach plant and that plant closed, there was no guarantee that plaintiff could come back to the El Segundo plant, and Aaberg told him that he was valued as an I&E supervisor.

Because of these clearly positive employment actions by defendants, including Aaberg, in order to find a prima facie case of retaliation in plaintiffs being denied the El Segundo O&M manager position, we would have to find that defendants were biding their time and passing up opportunities to retaliate against plaintiff in order to seize on an opportunity to retaliate that had more distance between such retaliation and plaintiffs cooperation with the Vialto investigation. That is pure speculation.

7. Evidence and Analysis Regarding Plaintiffs Claim that His 2004
Performance Evaluation Was Made in Retaliation for His EEOC Claim

a. The Evidence

In May 2004, plaintiff signed an EEOC claim in which he asserted he was denied the permanent O&M manager position (1) because of his age, and (2) in retaliation for his having participated in protected activities (he mentioned both reporting the sexually hostile work environment and participating in the Vialto investigation). Regarding the issue of age, he listed his age as 49 and stated that Rea was in his early 40s.

The EEOCs case log indicates that plaintiffs EEOC claim was drafted and signed on May 17 and served, by mail, on NRG on May 18, 2004. Plaintiff states he received defendants 2004 performance evaluation of his work on June 14, 2004. He asserts defendants gave him a low performance evaluation and a 1/2% pay raise in retaliation for filing the EEOC claim. The performance evaluation is for the period May 1, 2003 to April 30, 2004.

Plaintiff testified at his deposition that he did not tell anyone he was going to file a charge with the EEOC. He stated he met with Steve Christenson on May 18 to discuss the letter that he sent to Christianson and during that meeting he told Christenson that an EEOC charge had been filed. He admitted that he has no basis for knowing when defendants Aaberg, Goodner and Rea learned that he filed the EEOC claim. Thus, he has no basis for knowing whether they knew of the EEOC charge before they determined their 2004 performance review rating and salary decision for him.

Speaking specifically in reference to Rea, who was plaintiffs supervisor when the 2004 performance review was prepared, plaintiff was asked why he believes that Rea knew about the EEOC claim before Rea filled out plaintiffs 2004 performance evaluation. Plaintiff answered that he assumes that Christianson would have shared [information about the EEOC claim] with people at the station, but plaintiff added that he has no evidence that Rea was told about it. He stated that no one at NRG ever made any comments, jokes or criticisms to him that led him to believe he was retaliated against for filing the EEOC charge.

The evidence shows that Rea prepared plaintiffs 2004 performance evaluation with help from Aaberg and Goodner because he had been plaintiffs supervisor for only part of the evaluation period and he knew that Aaberg had counseled plaintiff on performance deficiencies during that period.

Aaberg, Rea, Goodner all deny that the EEOC claim had anything to do with their preparation of plaintiffs 2004 performance evaluation and pay raise. They all stated in their declarations that when plaintiffs overall performance review rating and annual raise were determined, and when the first draft of plaintiffs performance evaluation was completed, they were not even aware that the EEOC claim had been filed (and not aware that plaintiff had participated in the investigation of Joyce Vialtos sexual harassment charges).

Gregory Hughes, the regional plant manager, said the same thing, and added that the overall assessment rating and pay increase for plaintiffs 2004 performance review were determined on or before April 23, 2004, three weeks before plaintiff filed his EEOC claim. With his declaration Hughes included a performance rating/pay increase spread sheet for plaintiff and other employees, together with an e-mail cover letter from himself to a Laurie Thorman (with a cc to Steven Christianson), indicating that the spreadsheet had been reviewed, adjusted, and approved by Hughes. The e-mail is dated April 23, 2004. Additionally, we note that the letter that plaintiff sent to Steve Christianson was not written by plaintiff until early May, after his assessment rating and pay increase were determined. Thus, defendants presented evidence that plaintiffs letter and his EEOC claim had no effect on their evaluation of plaintiffs performance rating and determination of his annual raise.

As for the written performance evaluation itself, the record supports the assertion made by Aaberg, Rea, Goodner and Hughes that when the first draft of the written performance evaluation was finished they were not aware that the EEOC claim had been filed. The record contains (as plaintiffs exhibit No. 45) an e-mail from Goodner to Rea, dated May 18, 2004 (the day that the EEOC was served by mail on defendant NRG), which states: The attached is the jeff eval we talked about please review and make your changes the heading and the future goals need to be addressed. Under that is jeff huhs.doc. Exhibit No. 45 includes a copy of a performance review for plaintiff. An e-mail from Goodner to Aaberg, Hughes, Christianson, Schoolman, and Rea, dated May 27, 2004 is included as plaintiffs exhibit No. 46. It states: Here is the second draft of the evaluation we talked about this morning and then mentions jeff huhs.doc. Exhibit No. 46 includes a revised copy of the performance review for plaintiff. A June 2, 2004 e‑mail from Hughes to Schoolman, Christianson, Aaberg, Rea and Goodner is plaintiffs exhibit No. 47. It states: Gents, Here is my take on the Huhs performance review. I tried to be more direct in the comments, corrected some language structure, and checked the spelling. Hughes added: Please review and changed [sic] where I may have mis-spoke, not knowing all the details. Exhibit No. 47 includes another revised version of the performance review for plaintiff. The later two drafts include some fleshing out of comments and evaluations that the first draft addressed and they do not vary widely from the May 18 draft. The final version of the evaluation is plaintiffs exhibit No. 4. It was signed by plaintiff on June 14. In the final version, two of the 17 individual ratings (ratings of specific job duties and competency factors) are different from the initial draft and in both, the rating changed from consistently meets to meets minimum standards. However essentially, it cannot reasonably be said that the first draft and the final version vary to the extent that an inference can be made that there was retaliation at work in the making of the second, third or final version.

Plaintiff asserted the evaluation is not reflective of his performance, and he believes that there was a conspiracy to write a bad evaluation of his work as a means of justifying giving the position of O&M manager to Rea rather than to him. We have already determined that defendants presented a plausible, nonretaliatory reason for awarding the position to Reahe was better suited to it than plaintiff. Thus, there was no need for a conspiracy to prepare a false performance review for plaintiff.

To support their downgrading of plaintiffs performance evaluation from earlier years, defendants presented the following evidence. In November 2003 and January 2004 Aaberg came to plaintiffs work area and discussed with plaintiff the need for plaintiff to improve the housekeeping of the area where plaintiff works. Plaintiff agreed with Aaberg that the area needed cleaning. Aaberg also discussed with plaintiff that plaintiff should have been seeing to calibration of revenue meters at the Long Beach plant, and that plaintiffs subordinates were not reporting to work on time. Thus, he needed reminders on fulfilling his job duties. Moreover, there were times when plaintiff and Aaberg disagreed on work related issues and if plaintiff felt strongly about something he would not back down but instead would keep repeating his position and both of them would raise their voices when they argued. This would occur in front of other people. Additionally, plaintiff discussed with his subordinates the fact that he was denied a promotion and he mentioned that he believed it was retaliation for his having advised an employee what to do about a situation and that he felt things changed after the investigation into Joyce Vialtos charges. He told the subordinates he could go to an outside agency to make a complaint. With his peer group he also discussed company policies and practices and Reas having been given the position that plaintiff applied for. Regional plant manager Gregory Hughes stated that plaintiff was relatively well compensated for employees in his position and performance level and his 1/2% pay raise in 2004 was based on his 2004 performance and the fact that he was relatively well compensated for his position level.

Plaintiff had a different view of these matters. He asserted he did not have a habit of arguing with Aaberg. He only argued with Aaberg when he (plaintiff) felt strongly that he was right about some issue, and Aaberg had a practice of ignoring the point that plaintiff was making and taking the opposite position and it appeared that Aaberg did so simply because he wanted to argue with plaintiff. Regarding the state of plaintiffs work area, plaintiff states that in January 2004 Aaberg walked through plaintiffs work area and mentioned that the area needed housekeeping, plaintiff corrected the deficiencies immediately, and since then the area has been fairly tidy and has passed inspections by internal and external safety and environmental agents.