Ingram v. Regents

Filed 2/28/07 Ingram v. Regents 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 of the Superior Court of Los Angeles County, Victor Person, Judge. Affirmed.

Law Offices of Mark Weidmann, Mark Weidmann and Lee Franck for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Allan Zuckerman and Keri Lynn Bush for Defendants and Respondents.

______________________________________________

Plaintiff Stephen Ingram (plaintiff) appeals from a summary judgment granted to defendant The Regents of the University of California (defendant). Plaintiff is a former employee of defendant at the University of California at Los Angeles (UCLA or the university), where he worked in the student accounting office as an accounting assistant. He began working there in January 1992 and his employment ended in June 2000 when he was fired. Thereafter, he filed a complaint with Californias Department of Fair Employment and Housing to challenge his firing, obtained a right to sue letter, and filed this suit.

Defendants asserted grounds for firing plaintiff were that he could not accept supervision and office rules, and could not be trusted. Plaintiff claims the termination was based on his request for medical leave, his asserted disability, and his race (he is of African American descent), and thus he contends the termination violates the California Fair Employment and Housing Act (FEHA). (Gov. Code, 12900 et seq.)[1] We find plaintiff has not presented cause for reversing the summary judgment.

PROCEDURAL BACKGROUND OF THE CASE

1. Plaintiffs Causes of Action

Plaintiff filed this suit on June 19, 2001. In his amended complaint (complaint), he alleged statutory and common law causes of action. The statutory claims (which are based on provisions in the FEHA), and the common law claims all concern plaintiffs rights concerning medical leave, discrimination, and harassment. An issue regarding plaintiffs lunch breaks rights was also alleged.

As explained below, several of these causes of action were determined by us in an earlier appeal to not be viable because they are common law torts.

2. Defendants Original Summary Judgment

This is plaintiffs second appeal. In the earlier appeal, we held the trial court erred when it granted defendant a summary judgment that was based on plaintiffs not having filed a petition for a writ of mandate to challenge adverse findings made in a grievance procedure taken pursuant to his collective bargaining agreement. However, we also determined that plaintiffs causes of action for wrongful termination, which he based on public policies concerning medical leave, disability, race/national origin, and lunch breaks, are not viable because they are common law judicially created torts, and claims against public entities must be authorized by statute. Our decision left standing five causes of action.

3. Allegations in the Remaining Causes of Action

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 actually in dispute. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Plaintiffs remaining causes of action are based on employee rights set out in the FEHA, and concern plaintiffs medical leave, his claimed disability, and his race/national origin.

Plaintiffs first cause of action alleges that under the FEHA, it is unlawful for an employer to refuse to grant an employee up to 12 weeks in any 12 month period for medical leave, and unlawful for the employer to discharge, suspend, or discriminate against an individual because of that individuals exercise of his right to medical leave. Plaintiff further alleges he took medical leave for a serious health condition relating to stress and neck problems that caused him to be incapacitated for more than three consecutive days, required continuing treatment by a health care provider over an extended period of time, caused episodic incapacity, and may be permanent or long term if treatment is not effective. According to the complaint, defendant denied plaintiff medical leave, harassed plaintiff for taking medical leave, and also reprimanded, disciplined and terminated plaintiff from employment for taking medical leave.

The causes of action for discrimination and harassment that are based on disability status allege it is an unlawful employment practice for an employer to discharge a person from employment because of his disability, harass a person because of his disability, or discriminate against a person in terms of compensation or other terms, conditions and privileges of employment because of his disability. Plaintiff alleges stress and neck problems that constitute a disability because they limit his ability to participate in major life activities and required special education and/or related services, and defendants regarded plaintiff as having a disability or having a medical problem that has no present disability effect but may become a disability. As a direct result of these matters, defendants harassed plaintiff, discriminated against him in the terms, conditions and privileges of his employment, and terminated him from employment.

The causes of action for discrimination and harassment based on race and national origin allege it is an unlawful employment practice for an employer to discharge a person from employment, harass a person, or discriminate against a person in terms of compensation or other terms, conditions and privileges of employment, because of his race or national origin. Plaintiff alleges he is an African American, and as a result of that status, defendant harassed him, discriminated against him in the terms, conditions and privileges of employment, and terminated him from employment.

4. The Instant Appeal

After our remittitur issued, defendant noticed another motion for summary judgment. The motion was heard and taken under submission on June 20, 2005, and on July 28 the court issued a lengthy minute order granting the motion. Among other things, the court ruled that defendant established a legitimate, nondiscriminatory basis for terminating plaintiffs employment and plaintiff did not present any evidence that such basis was just a pretext.[2]

The summary judgment was signed and filed on September 2, 2005 and thereafter plaintiff filed his notice of appeal.

STANDARD OF REVIEW

1. General Principles

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).)

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. (Code Civ. Proc.,  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.

2. Issues Regarding the Trial Courts Evidentiary Rulings

a. Defendants Evidentiary Objections

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 ruling has been waived, the evidentiary ruling 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.)

In the instant appeal, defendant contends that plaintiffs opening brief cites to evidence to which the trial court sustained objections, and defendant argues that plaintiff has not affirmatively challenged those evidentiary rulings in his opening brief. The evidence to which defendant refers is plaintiffs own declaration that he filed in support of his opposition to defendants second motion for summary judgment.[3] Plaintiff responds by asserting that he did indeed challenge, in his opening brief, the evidentiary rulings the trial court made in defendants favor on defendants objections to plaintiffs declaration.

Specifically, plaintiff argues that by asserting in his opening brief that facts alleged in affidavits of a party against whom a motion for summary judgment is based must be accepted as true (a proposition for which he cites Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 170), he has met his burden to affirmatively challenge with distinct analysis the trial courts evidentiary rulings that were not in his favor. We cannot agree that this is sufficient to constitute an affirmative challenge to the trial courts specific evidentiary rulings. The Conway court did not address objections to evidence submitted by the party opposing the motion for summary judgment, and thus Conway is not authority for plaintiffs assertion that he affirmatively challenged the evidentiary rulings that went against him. Because plaintiff has not presented this court with sufficient analysis for why each separately sustained evidentiary objection made by defendants should have been overruled, he has waived his right to assert error in the trial courts rulings.

b. Plaintiffs Evidentiary Objections

When defendant submitted its reply papers in support of its second motion for summary judgment, it included excerpts from the depositions of six people and those excerpts had not been included with defendants moving papers. The excerpts varied in length (one page, three pages, five pages, seven pages, and two excerpts with ten pages). Defendants attorney stated the additional deposition testimony was being presented to the trial court in response to assertions made by plaintiff in his opposition papers, specifically in plaintiffs response to defendants separate statement of undisputed facts and plaintiffs own statement of disputed facts. Defendant asserted that (1) in some cases plaintiff miscited deposition testimony, (2) in other cases plaintiff did not present complete testimony from the deponent, and (3) in still other cases plaintiff argued points which are contradicted by his own deposition testimony. Thus, the thrust of defendants stated purpose of supplying the additional deposition evidence was to present a true or complete evidentiary picture to the trial court.

Plaintiff filed an evidentiary objection to this additional evidence from defendant, asserting that consideration of the additional evidence would be a violation of plaintiffs due process rights. The trial court sustained the objection.

On appeal, defendant challenges the trial courts ruling, asserting that the additional evidence was not new in that it did not consist of facts never before articulated. Defendant also contends that a rule against considering the evidence in these circumstances would be a denial of due process to the moving party.

From the reporters transcript, it appears that the trial court sustained plaintiffs objection on the grounds that the evidence was not timely. Both plaintiff and defendant rely on San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 to support their respective positions on the matter. That case held the trial court should exercise its discretion in deciding whether to consider evidence not cited by a moving party in its separate statement. (Id. at p. 316.) The reviewing court stated the opposing partys due process rights are a factor to consider since a purpose of having the moving party submit a separate statement supported by evidence is to inform the opposing party of the evidence to be disputed in order to defeat the motion.

In circumstances such as those posed by the additional evidence presented by defendant with its reply papers in the instant case, the trial court should initially consider such evidence to determine whether it really should not be considered to be new to the opposing party, and if that be the case, the additional evidence should be included in the body of evidence used by the trial court to rule on the summary judgment motion, with provision given to the opposing party to submit a short response that addresses only the additional evidence submitted by the moving party in its reply papers. In the instant case, however, the issue is moot because, as discussed below, plaintiffs appellate presentation of facts is insufficient to warrant its consideration by this court.

DEFENDANTS FACTUAL PRESENTATION

1. Declaration of Dorothy Webster

a. Duties of Dorothy Webster, Plaintiffs Highest Supervisor

Dorothy Webster, who is an African American, and who was the director of defendants accounts receivable, cashiering, and Bruin card systems and services at UCLA at the relevant times in this case, submitted a declaration in support of defendants motion for summary judgment. The student accounting office where plaintiff worked is part of the accounts receivable portion of Ms. Websters job. (Ms. Websters description of the various responsibilities of the student accounting office is nearly one page long and we need not set out the information in our opinion.) Websters job as the director of accounts receivable included overseeing all of the activities in the student accounting office and having final supervisory decision-making responsibilities over the employees who worked in the student accounting office.

Webster stated it was she who made the decision to issue progressive discipline of plaintiff, including terminating his employment. She stated plaintiffs race and national origin were not factors in her decisions to impose any discipline on him, including terminating his employment, nor were his disability and medical condition and his requests for medical leave.

Webster stated that during the last ten years of employment at UCLA, she has supervised approximately 104 career employees (non-students). Of those 104 employees, approximately 33 are Black, 17 are Hispanic, 29 are White, 22 are Asian and three are East Indian. Only 13 of the employees ever received disciplinary action. Six of the 13 separated their employment from UCLA involuntarily, and of those six, three were Black, one was White, one was Hispanic and one was Asian. The only one of the six that worked in the student accounting office was plaintiff. The other five worked in the main cashiers office, which is supervised by plaintiffs mother, Pam Oliver, who is also an African American.

b. Plaintiffs Position and Duties

Plaintiff began working at UCLA in 1992 and began working in the student accounting office as part time help in 1995. Ms. Webster made a decision in 1996 to hire him full time. At all of the times relevant to this case, plaintiff was an Administrative Assistant III, which is a high level clerical position, and his duties included handling returned checks, reconciling accounts, and assisting the office with general customer service responsibilities. The general customer service portion of his work included answering telephones and serving as backup for the work study students who were the primary persons staffing the walk-in counter set up for persons with questions. That staffing is commonly referred to counter time or window time.

c. Plaintiffs Intermediate Supervisors

In 1998 David Passoff became plaintiffs immediate supervisor, taking over that responsibility from Jeff Pace. Mr. Passoffs immediate supervisor is Mark Tendas. Ms. Webster is Tendass immediate supervisor. As the director and supervisor of the student accounting office, Webster relied on information from subordinates there to aid her in her job duties.

d. Plaintiffs Initial Failings

Jeff Pace reported to Ms. Webster that plaintiff was often late to work, and at Paces request, Webster had a time clock installed to deal with that problem. However, she later had it removed because she believed it too draconian a measure and not in keeping with the spirit of work at the student accounting office. Besides not arriving for work on time, plaintiff would also leave the office without telling his co-workers where he was going or when he would return. Another problem with plaintiff was that he was using the office telephone for his own personal business, including his own personal businesses, and the length of his personal calls exceed the short duration time limitation to which the employees were expected to conform their personal calls. To deal with his excessive telephone usage, there was instituted a requirement that a code had to be punched in before off-campus calls could be made. This plan, however, was not able to monitor personal incoming calls.

Also of concern to Ms. Webster was plaintiffs inclination to waste large amounts of her time and his with issues that she otherwise could have disposed of simply. An example given by Webster was plaintiffs dissatisfaction with the temperature in the office. He felt the office was too cold but the other employees did not. There was a consensus to set the thermostat at 68 degrees, but because it turned out that the thermostat was not reliable, the other employees agreed to deal with the temperature situation by opening and closing a window, but this never satisfied plaintiff. Although the other employees wore sweaters or jackets if they felt the room was too cold, plaintiff was permitted to bring in a personal heater to use at his desk. However, he continued to dwell on and address the issue of the temperature, and he made an issue of it for more than six months.

Because plaintiff was not always punctual in arriving at work, he was changed from a flexible schedule to a fixed schedule for three months and given a counseling memo, as a form of formal discipline. That was his only formal discipline in his first three years of employment. However, Ms. Webster saw things that she let pass rather than discipline plaintiff over, hoping that he would learn to follow rules and accept supervision, because that was her management style. She viewed plaintiff as a high maintenance employee.

e. Additional Events in 1999

In early 1999, plaintiff informed Webster he was not getting along with his supervisor, David Passoff. At plaintiffs request Webster became more involved with the daily activities of the student accounting office so that she could monitor his interaction with Mr. Passoff, and also so that she could observe other concerns plaintiff had expressed. She told plaintiff and Passoff that since they had different versions of issues, she would not believe or disbelieve either of them but would start again with a clean slate. Plaintiff never complained to Webster, during his entire period of employment, that he believed he was being harassed, discriminated against, or retaliated against by Mr. Passoff or any other employee because of his race, national origin, medical condition or disability.

At the end of 1999, Webster and Passoff prepared plaintiffs annual employee evaluation. Although plaintiffs job knowledge was superior, he was given a satisfactory rating because he did not adhere to work rules (including those relating to reporting on his time sheets, and reporting when he was leaving the office during the workday), did not accept supervision, and consumed an inordinate amount of managements time over basic issues. (A review of the evaluation form shows that plaintiff was praised in a variety of employment related areas, including work quality, job knowledge, and customer service, and was described as being very bright.) Plaintiff refused to sign the evaluation as he was not happy with it. At that point it became clear to Ms. Webster that plaintiff did not believe he needed to change his behavior, and so she decided to take over, from Mr. Passoff and Mr. Tendas, the task of formal discipline with respect to plaintiff so that there would be no question in her mind what it was that any future discipline measures against plaintiff would be based on. Thus, formal discipline taken against plaintiff would be her decision alone.

f. Year 2000Warning Letters, Suspensions and Termination

Webster issued a February 8, 2000, disciplinary written warning letter to plaintiff regarding his continued failure to adhere to time reporting rules, and rules relating to making up time, and leaving the office during the day. The letter informed him that his continued resistance to conforming to departmental procedures and guidelines will not be tolerated. Specifically, the letter addresses plaintiffs refusal during December 1999 and January and February 2000 to follow staff rules. This includes not properly filling out his time reports even though he was given training with the members of the staff in July 1999 regarding time sheet preparation, and given extra training on that matter when he continued to prepare his time sheet incorrectly. He was even given a template to use to help him fill out the time sheet correctly but he continued to err in filling it out. He also continued repeatedly to ignore the staff rules regarding making up time if he was tardy (the rules require prior approval to make up time in lieu of being docked for the time missed). Additionally, he continued to ignore the rule that requires a staff member to sign out on the white board when he or she leaves the office for more than five minutes.[4] Although plaintiff claimed Mr. Passoff told him to write ? in the space for when he would be returning if he did not know when he would be back, Ms. Webster specifically told plaintiff a few days before plaintiff used the ? that he needed to indicated both a leave time and a return time on the white board. Additionally, he had sent an e-mail to his co-workers, on February 3, in which he discussed a management personnel decision involving him, and the formal February 8 disciplinary warning letter was also issued to inform him that it was not appropriate to attempt to involve staff in his own personnel issues.[5] The letter warned plaintiff that if he did not make immediate and sustained improvement in his job-related behavior, further discipline would occur, including dismissal from employment. Webster consulted with the human resources department before issuing the February 8 formal discipline warning letter, and it was not her intention at that time to fire plaintiff.

Ms. Webster issued a second disciplinary warning letter to plaintiff on February 18, 2000, just ten days after the first. It dealt with the fact that plaintiff had gone to lunch on February 15, during a period of time when he was supposed to be staffing the customer walk-in counter. That staffing duty was given to plaintiff to make up for the fact that he no longer had telephone customer service duty. The February 18 letter reiterated that his insubordination would not be tolerated and unless there was immediate and sustained improvement in his behavior, further disciplinary action would be taken, including dismissal. In response to this letter, plaintiff stated that his lunch time overlapped with his counter time on February 15, however, Ms. Webster observed, in her declaration, that frequently employees reschedule lunch times and they arrange the rescheduling among themselves or their supervisor, and plaintiff should have done that rather than just leaving for lunch without making provision for staffing the counter. Webster consulted with human resources before she issued the February 18 warning letter, and at the time she issued the letter she did not intend to fire plaintiff.

Two months later, in April 2000, Ms. Webster twice issued suspension letters to plaintiff. The first was issued on April 4, was for two days, and concerned another instance of his leaving for lunch without having someone cover for him at the walk-in counter. Plaintiff told Webster that he had made arrangements for someone to cover for him but he could not remember who, and none of the staff members could recall such an arrangement. Webster consulted with human resources before issuing the suspension letter, and when she issued it, she did not intend to fire plaintiff.

On April 24, the second suspension letter (three-day suspension) was issued, this time because he misrepresented facts regarding a phone conversation that he had with a client after he had been removed from telephone duties because of his medical condition.[6] Although plaintiff told Webster he did not have the telephone conversation, Webster checked and became convinced that plaintiff was lying. The letter also related two incidents (March 15 and 16, 2000) of false reporting on his time sheet and the incident of his asserting he had made arrangement to cover his counter time when he had not done so. Webster stated in the April 24 suspension letter that although plaintiffs use of the telephone was sufficient reason to impose the suspension since he had a pattern of refusing to adhere to rules, it was actually plaintiffs having also established a pattern of untruthfulness that caused the suspension to be imposed. Webster noted in the letter that accurate accounting for the universitys money requires the utmost in trustworthiness and reliability from its employees. Once again plaintiff was warned that if he did exhibit immediate and sustained improvement in his behavior, further discipline would be imposed, up to and including dismissal. Webster consulted with human resources before issuing the suspension letter.

By letter dated June 5, 2000, plaintiff was notified of defendants intent to terminate his employment. The events that precipitated the decision to terminate him were his interactions with his supervisor relating to requests from a customer in May 2000, and a directive to plaintiff to make a journal entry. Although instructed by the supervisor to make copies of the backs of returned checks for the customer, plaintiff decided that he didnt think the copies would help much, and so he proceeded to not provide the customer with the documentation. Additionally, when instructed by his supervisor to make a journal entry, plaintiff did not make the entry, but then when asked by the supervisor whether the entry had been made, plaintiff did not respond directly but instead equivocated, which suggested that he had made the entry. The letter states that termination was due to plaintiffs continual misconduct regarding departmental procedures and unwillingness to accept supervision, and his pattern of misrepresentation and evasiveness.

Besides recounting the previous incidents which resulted in the previous two written warnings and two suspension letters, and setting out the failure of plaintiff to comply with his supervisors directive regarding copying the checks and making the journal entry, the June 5 letter also related that plaintiff had (1) failed for two months (April and May) to properly comply with returned check conciliation procedures even though he had demonstrated in a prior month (March) that he knew how to utilize the procedures; (2) given indirect and evasive responses to an operations manager regarding a certain returned check, which resulted in extra work to correct the matter and a complaint from a department, and when the operations manager pursued the matter it became clear that the problem resulted not from an oversight on the part of plaintiff but rather from his outright deliberate neglect; (3) placed the blame for the returned check problem on the operations manager, a tactic which caused Webster to state in her termination letter that when plaintiff is faced with incrimination, he relies on a strategy of equivocation, misrepresentation, or deflection, and caused her to relate several instances of plaintiffs use of these tactics; (4) e-mailed the Manager in May asking for an explanation of the classification of his time off for two days in April even though he had already been provided with a clear and concise logical explanation, which Webster stated was yet another example of his making issues where none exist (thereby wasting managements time), and his unwillingness to accept management decisions, a habit about which he had been counseled on more than one occasion; and (5) indicated yet again an unwillingness to accept directives when he was told by the operations manager to research a check about which the operations manager would then make a phone call, and instead of responding by following the directive, he suggested that the operations manager should make the phone call first. Once again, Ms. Webster consulted with human resources prior to sending the termination letter. Plaintiff was replaced with a Black woman.

g. Plaintiffs Medical Issues

Regarding plaintiffs medical condition, Ms. Webster received a letter, dated January 25, 2000, from a family practice doctor at a Kaiser Permanente medical office. The letter states plaintiff was seen for headaches due to myofascial trigger points in his right shoulder and upper back. These spasms are aggravated by his necessity to use a phone instead of a headset. These spasms will not resolve until the stress on the muscle is relieved. Mr. Ingram should have a headset to use instead of a phone receiver so that he does not get these severe headaches.

Webster sent plaintiff to UCLAs occupational health department for an evaluation, as she is required to do for work related injuries. Then she spoke with the occupational health department medical practitioner who evaluated plaintiff, and was given several options for dealing with plaintiffs medical condition. These included plaintiff using a headset, a speaker phone, or an extension arm for the telephone receiver, and also included plaintiff being relieved from all telephone duties. The medical practitioner was concerned that the speaker phone would disrupt the office, and said the extension arm had not proved beneficial. Webster declined to provide plaintiff with a headset for phone calls because it hindered managements ability to monitor plaintiffs telephone usage.

She told plaintiff he would be relieved of all telephone duties until further notice, including both customer service calls that all employees in the office have to take, and phone calls related to plaintiffs specific job duty, which was processing returned checks. She also told plaintiff he could not have personal phone calls on the university telephones, nor could he conduct university business on telephones outside the office. She gave those instructions to him because of her understanding that if he further injured himself as a result of using telephones for university business or by using university property, the university could be liable. Because plaintiff was relieved of his telephone duties, that meant that others in the office would have to take on more phone calls. Plaintiff was therefore directed to take over one-half hour of the other four employees customer service counter time.

In April 2000, plaintiff asked Webster if he could take time off for personal and medical leave, and he presented her with a supporting letter from a clinical social worker at the Kaiser medical office. The letter asked that plaintiff be permitted to work half time for a month so that he might be able to deal with his personal and health issues. After Webster verified from human resources that a clinical social worker is a proper medical professional to make such a request, plaintiff informed her that all of the time off would be for medical leave. Plaintiff was granted the leave and a reduced work schedule. Webster never refused to grant him the requested medical leave.

2. Declarations of Mark Tendas and David Passoff

Mark Tendas (manager of student accounting) and David Passoff (operations manager of student accounting) each submitted a declaration in support of defendants motion for summary judgment. Each stated (1) they were employed in those positions at the times relevant to the suit, (2) they did not make the decision to issue progressive discipline to plaintiff, including termination, (3) plaintiffs race and national origin were not factors in their actions with him, (4) nor were plaintiffs disability and medical condition, other than to assist with phone duties after plaintiff was relieved of those duties, and (5) plaintiffs request for medical leave was not a factor in their actions with him, other than to cover his desk at times when needed.

Mr. Passoff added that he is married to a Black woman, they have a biracial son, and they are raising their sons daughter. He stated that although he and his son have had their difficulties, he loves his son, admires his sons many talents, and the difficulties have nothing to do with his son being biracial. In the past he has referred to plaintiff as being someone who reminds him of his son, and those references were made as compliments. Any differences he has had with plaintiff have had nothing to do with plaintiffs race.

3. Plaintiffs 2001 Complaint with DFEH

On June 8, 2001, plaintiff filed a complaint with Californias Department of Fair Employment and Housing, alleging discrimination under the FEHA. He alleged that from around April 1998 to June 2000 he was fired, harassed, denied accommodation, denied medical leave, and retaliated against by Ms. Webster and Mr. Passoff, because of his religion, race, national origin, physical disability, mental disability, his family medical leave, his request for accommodation, and his having opposed practices forbidden under the FEHA.

PLAINTIFFS FACTUAL PRESENTATION

In defendants first motion for summary judgment, the trial court did not rule on the parties respective evidentiary objections, and for that reason we stated in our prior opinion that the objections made by the parties were waived. As noted earlier, the second motion for summary judgment is a different story. The trial court sustained 150 of defendants evidentiary objections to plaintiffs own declaration that he submitted in support of his opposition to the second motion.

In the instant appeal, plaintiff has attempted to avoid the impact of that gutting of his second declaration by ignoring the second declaration and instead relying on, and citing to, the declaration he filed in opposition to the first motion for summary judgment. However, we will not permit him to skirt the effect of the trial courts evidentiary rulings in the second motion (and the effect of his own failure to properly challenge the rulings in this appeal), by considering his declaration from the first motion for summary judgment. Moreover, a review of the citations to the record in plaintiffs briefs in the instant appeal shows that the citations are all (or essentially all) to papers filed for the first motion. Yet, plaintiff presents nothing to indicate that the trial court based its decision on the second motion in whole or in part on papers from the first motion. It is not the duty of this court to determine whether papers from the first motion match up with papers from the second motion so that plaintiffs references to the former can be considered sufficient substitutes for references to the latter.

Moreover, that is not the only problem with plaintiffs factual presentation to this court. Many of the paragraphs in that presentation have numerous sentences in them but there is no citation to the record after each sentence. Rather, citations to several places in the record are placed at the end of the paragraphs, apparently in the belief that it is the duty of this court to discern which of the appellate record pages match specific sentences.

Because of plaintiffs inappropriate factual presentation, we will not consider his statement of facts, nor the assertions of fact sprinkled throughout his briefs. He has waived the right to such a full appellate review.

DISCUSSION

1. The Statute of Limitations in FEHA Cases

As noted above, plaintiff filed an administrative complaint with Californias Department of Fair Employment and Housing on June 8, 2001. Section 12960, subdivision (d), states that except in circumstances not relevant here, no [FEHA administrative] complaint may be filed [with the Department of Fair Employment and Housing] after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred, . . .  (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349, disapproved on another point in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802, 816 et seq.) There is an equitable exception to the one-year period that is known as the continuing violation doctrine. That doctrine allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th 798, 802, 812.) However, as discussed below, the doctrine has limitations.

2. Plaintiffs Claims of Harassment

The trial court properly ruled that plaintiffs claims are not viable under the prohibition in the FEHA against harassment based on race or disability. The court found that plaintiff makes no claim that he was subjected to epithets, derogatory comments, slurs, derogatory posters, or any type of conduct that may properly be considered harassment, as opposed to discrimination.

Plaintiff alleged harassment based on his termination, and on the written warnings, suspensions, job evaluation, and counseling memo he received. However, those things are personnel management actions, and although they may be found to be discriminatory, personnel management decisions do not support a claim of harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 645-647.) Harassing actions are the types of conduct not necessary for the performance of a supervisory job or the management of the employers business. (Ibid.)

3. Plaintiffs Causes of Action Alleging Discrimination

a. The Continuing Violation Doctrine

Plaintiff asserts discrimination based on race, disability, and his request for medical leave. When interpreting the FEHA, California courts often look to federal cases that interpret federal anti-discrimination statutes because the objectives and wording of the federal laws are similar to those of the FEHA. (Richards v. CH2M, Inc., supra, 26 Cal.4th at p. 812.)

In National Railroad P. Corp. v. Morgan (2002) 536 U.S. 101 [153 L.Ed.2d 106, 122 S.Ct. 206] (National Railroad P. Corp.), the court addressed a claim by a plaintiff that he was entitled to rely on the continuing violation doctrine for both his claims of discrimination and his hostile work/harassment claims. Regarding claims of discrimination, the court held that a discrete discriminatory act occurs on the day it happens and therefore the time for filing an administrative claim commences to run on that day. (Id. at p. 110.)[7] The court observed that it had repeatedly interpreted the term practice (as in unlawful employment practice) to apply to a discrete act or single occurrence, even when it has a connection to other acts. (Id. at p. 111.) As an example, the court referenced one of its earlier cases in which it held that each time an employer delivered a paycheck to a Black person for less money than a similarly situated White person received, that constituted an actionable act under federal law. (Id. at pp. 111‑112.) Thus, the court stated: [D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed [within the time period set out in the statute] after the discrete discriminatory act occurred. The existence of past acts and the employees prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. [] As we have held, however, this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. [Citation.] Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly. [Citation.] (Id. at pp. 113-114.)

The analysis applied by the federal Supreme Court in National Railroad P. Corp. was also applied in an earlier California caseMorgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 66, where the court found that repeated instances of the defendants not rehiring the plaintiff after he was laid off constituted isolated employment decisions. However, in deciding a case in which the plaintiff claimed an unlawful employment action of retaliation, our California Supreme Court in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1057, declined to follow National Railroad P. Corp.s analysis regarding discrete acts alleged to be unlawful employment practices. The Yanowitz court stated that National Railroad P. Corp. held that, with regard to the applicability of the continuing violation doctrine, a distinction should be drawn between discrimination and retaliation claims on the one hand, and hostile work environment claims on the other hand. . . . [] LOreal urges us to adopt [National Railroad P. Corp.s] reasoning and limit the continuing violation doctrine to only harassment claims, thus excluding discrimination and retaliation claims. A rule categorically barring application of the continuing violation doctrine in retaliation cases, however, would mark a significant departure from the reasoning and underlying policy rationale of our previous cases interpreting the FEHA statute of limitations. (Ibid.)

The Yanowitz court did not specifically reject National Railroad P. Corp.s continuing violation analysis as applied to discrimination cases. Moreover, while the court in Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 823, recognized that in cases involving claims of disability discrimination or disability harassment, the continuing violation doctrine can be applicable, and the court in Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at pp. 1057-1058, reaffirmed that applicability, both courts recognized that the application is not unlimited.

In determining whether the whole of an employers series of unlawful acts (some of which occur inside the one-year limitations period for filing FEHA claims and others of which occur outside the limitations period) should be considered to be a single, actionable course of conduct for which the employer can be held liable under the continuing violation doctrine, Richards held that an employers persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employers unlawful actions are (1) sufficiently similar in kindrecognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.] But consistent with our case law and with the statutory objectives of the FEHA, we further hold that 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. [] Thus, 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, and this course of conduct does not constitute a constructive discharge, 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. (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 823.)

In the instant case, the trial court observed, in its minute order ruling on the motion for summary judgment, that plaintiff himself acknowledged, in his declaration, that he knew, on April 25, 2000, that things would not change with respect to his complaints. The court stated that to the extent that Plaintiff can benefit from the continuing violation theory at all, it doesnt go back any farther than April 25, 2000. Thus, the February 2000 disciplinary matters are still outside of the limitations period, as is the suspension in early April. Thus, assuming arguendo that there were repeated violations of the FEHA regarding plaintiffs claimed disability, under the Richards analysis regarding permanency of an employers actions, the continuing violation doctrine cannot reach back further than April 25, 2000 to validate the inclusion, in this suit, of defendants actions that occurred prior to June 8, 2000 (plaintiffs FEHA administrative claim having been filed on June 8, 2001). Thus, all asserted continuing violations of the FEHA that are based on plaintiffs alleged disability and that occurred prior to the April 24, 2000 suspension (which is what plaintiff stated triggered his understanding that things would not change), are without legal consequence in this case.

b. Summary Judgment Evidentiary Burdens in a
FEHA Discrimination Case

In ruling on plaintiffs claim of discriminatory treatment in his employment, the trial court found that defendant established a legitimate, nondiscriminatory basis for its decision to terminate [p]laintiff and plaintiff failed to present any evidence of pretext. The court noted the legitimate reasons for terminating plaintiff were outlined in the termination letter that defendant sent him. The court stated that plaintiffs opposition to the summary judgment motion offered only speculation, and his subjective beliefs and opinion that he was the victim of discrimination. In this appeal, plaintiff has presented no reason to dispute that analysis.

Defendants exhibits demonstrate a progressive discipline of plaintiff for his repeated infractions of basic work rules at his place of employmentproper completion of time sheets, reporting time away from the office during the day, making up time when arriving late for work, fulfilling his counter time duties, including additional counter time in lieu of telephone duties, making false and evasive statements to his supervisor, and in general, his inability to accept supervision and finality of outcomes. The termination letter sets out his additional failingsthose in the performance of the specific tasks of his job. Defendants evidence does not raise an issue that plaintiff was terminated because of his disability, his race, or his request for medical leave.

Thus, defendant presented a nondiscriminatory basis for terminating plaintiffs employment. Moreover, as discussed infra regarding the three specific types of discrimination claimed by plaintiff, defendant has met its evidentiary burden. It was therefore plaintiffs burden to present to the trial court evidence showing that the reasons given by defendant for firing plaintiff were a pretext, or evidence showing a discriminatory motive on the part of defendant, such that the court could find plaintiff raised a triable issue of material fact whether the termination was based on unlawful discriminatory reasons. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 et seq.) However, as noted above, plaintiffs evidentiary presentation to this court is an unacceptable appellate presentation. Therefore, we find he has not established a reason for this court to reverse the summary judgment on the basis of his having carried his evidentiary burden in the trial court.

c. Plaintiffs Cause of Action for Discrimination Based
on Statutory Medical Leave Provisions

The FEHA has provisions (12945.2) making it unlawful for specific employers to refuse to grant to employees (who have a specified minimum amount of service), up to a total of 12 workweeks in any 12-month period for medical leave. It is also an unlawful employment practice for the employer to, among other things, fire, suspend, or discriminate against an individual because of the individuals exercise of the right to medical leave. The employer has the right to require the employee to support the request for leave with certification issued by his or her health care provider.

Plaintiff alleged in his complaint that he took medical leave for his stress and neck problems. He alleged defendant denied him the leave, and harassed, reprimanded, disciplined and terminated him for taking the leave. To support its motion for summary judgment, defendant presented evidence (Ms. Websters declaration) that when plaintiff requested that he be permitted to work half-time for a month, and presented Webster with a letter from a clinical social worker at Kaiser Permanente to support the leave, she first checked with human resources to verify that a clinical social worker is a proper medical professional to make such a request. Then plaintiff was granted the leave he sought, with its reduced work schedule. Webster stated she never refused to grant the requested medical leave. Plaintiff has not made an appropriate factual appellate presentation on the matter to justify reversing the summary judgment on the issue of medical leave.

d. Plaintiffs Cause of Action for Race Based Discrimination

Defendant presented evidence there was no racial discrimination based on plaintiffs African American heritage. While the evidence is circumstantial, it supports adjudication in defendants favor on the cause of action for race based discrimination. It was Ms. Webster, a Black person, who hired plaintiff. Further, her history at UCLA for the ten years preceding the date of her declaration shows that she disciplined a relatively few number of her 104 nonstudent employees. Of those 104 nonstudent employees, 33 are Black, and of the six nonstudent employees who left employment involuntarily, three were Black. Thus, the percentage of Blacks involuntarily terminated approximates the percentage of the Black nonstudent employees she has supervised. Further, only one of the six terminated employees worked in the student accounting office; the other five were supervised by plaintiffs mother in the main cashiers office. Plaintiffs mother is Black. Also, plaintiffs replacement is Black. Likewise, Mr. Passoffs declaration is evidence of his lack of animus against Blacks, given that he is married to a Black woman, they have a bi-racial son, and they help raise their sons child. Plaintiffs inappropriate factual presentation in this appeal cannot justify reversing the summary judgment on the issue of racial discrimination.

e. The Cause of Action for Disability Based Discrimination

When plaintiff presented Ms. Webster with his doctors evaluation that his claim of headaches was due to his work related telephone use, Webster sent plaintiff to UCLAs occupational health department for an evaluation, as she was required to do for work related injuries. To deal with plaintiffs work related injury claim, Webster relieved plaintiff of all telephone duties in his job until further notice, including both customer service calls that all employees in the office have to take, and phone calls related to plaintiffs specific job duty, which was processing returned checks. She also told him he could not have personal phone calls on the university telephones, nor could he conduct university business on telephones outside the office. She gave those instructions to him because of her understanding that if he further injured himself as a result of using telephones for university business or by using university property, the university could be liable.

It was defendants choice as to how to effectively accommodate plaintiffs telephone related disability, and defendant chose to relieve plaintiff of telephone duties. Defendant was not obligated to choose the best accommodation it could make, nor the one that plaintiff would have wanted. An employer can make its decision on how to effectively accommodate a disability on the basis of such things as which accommodation is the least expensive, and which is the one most easy to provide to the employee. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) Thus, defendant presented evidence to support its summary judgment with respect to plaintiffs claim of discrimination based on a claimed disability. And as with his other alleged types of discrimination, plaintiffs inappropriate factual presentation in this appeal will not support reversing the summary judgment on that issue.

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