Mejia v. Wood

Filed 3/19/07 Mejia v. Wood CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Frances Rothschild, Judge. Affirmed.

Hindin & Abel, Robert Marc Hindin, Bruce David Abel and Snow Tuyet Vuong; Law Offices of Michael F. Baltaxe and Michael F. Baltaxe for Plaintiffs and Appellants.

Atkins & Evans, Kenneth M. Jones and Cynthia L. Sands for Defendant and Respondent.

_____________________________

Two police officers brought suit against their lieutenant, the City of Inglewood and the Inglewood Police Department asserting claims of discrimination based on race and/or national origin, harassment based on their race or national origin, and retaliation for having complained about racially derogatory comments their lieutenant made nearly a decade earlier. The trial court granted summary judgment in favor of their lieutenant, only, and dismissed him from the action. The trial court reasoned the lieutenants racial slur was an isolated incident, and insufficient in itself to create a hostile working environment as a matter of law. The court also found no causal nexus between the officers protected activity in complaining about their lieutenants racial slur and the allegedly adverse employment actions occurring years later. We affirm.

FACTS AND PROCEEDINGS BELOW

Appellants, Sergeant Oscar Mejia and Detective Reginald Watson, are both employed by the Inglewood Police Department and the City of Inglewood. Mejia is Hispanic. Watson is Black. Mejia joined the force in 1988. Watson did a tour with the military and then worked at various police departments in Southern California before he joined the Inglewood Police Department in 1989.

Sometime in 1993 respondent, Lieutenant Ron Wood (Wood), told a story about a trip he had recently made to Mexico. Wood is Caucasian. Wood told a group of officers his airplane made a stop in Mexico to pick up additional passengers, and when the airplane doors opened, all these goddamn Mexicans entered the plane and . . .  there was kids in diapers that stunk like shit. Wood added, You should have seen the scene. It was horrible, all these damn Mexicans coming in the plane.

Appellants and the other officers in the room were embarrassed and offended by Woods story. Mejia took it upon himself to complain to his superior officers about Woods racially derogatory comments on behalf of all the officers in the room. He verbally complained to then-Sergeant Samuel Cohen who is Caucasian, then to Captain James Seymour, who is Black, and finally to then Chief of Police, Oliver Thompson, who is also Black.

During a meeting with his lieutenants and sergeants the chief of police asked Wood whether he had told a story about dirty Mexicans. Wood denied making the racially derogatory statements. Wood inquired who claimed he had made such statements but the chief refused to divulge any names. Thereafter, the chief directed Lieutenant Tommy Johnson, who is Black, to conduct an investigation into the matter. Lieutenant Johnson interviewed Wood, the affected officers and others, and reported his findings. According to Wood, his superiors found he had not made overtly racist comments. However, they admonished Wood to learn to be more sensitive to other peoples feelings. Wood testified he did not learn appellants had been involved in the investigation until they filed their lawsuit years later in 2002.

According to appellants, Wood threatened each of them separately in 1994 shortly after the informal investigation concluded. Appellants testified Wood told them he had worked in internal affairs before and knew how to build a packet on an officer. Wood allegedly told both of them they would never be promoted as long as he was in the department. Watson testified Wood also told him he could write whatever he wanted because administration would believe him, a Caucasian, over Watson, a minority. Neither appellant filed a complaint regarding these alleged threats.

It is undisputed that aside from the 1993 comments, Wood since has not made a racially offensive or discriminatory comment in appellants presence. It is also undisputed appellants never learned of Wood making racist or discriminatory comments in any other officers presence since. Appellants similarly do not dispute that since the 1993 incident with Wood they never learned of any other racist comments made by any other sergeant, lieutenant or anyone else in management.

According to appellants, thereafter Wood, and others, allegedly at his direction, began a systematic campaign to retaliate, harass, and discriminate against Mejia and Watson and fulfill his promise that neither of them would ever be promoted as long as he was in the Inglewood Police Department.

In 1994 appellants applied for a promotion to the detective bureau. They both flunked the oral portion of the exam. Mejia could not recall who was on the orals panel. Nor had he heard any rumors of anyone directing he be failed on the oral boards. Nevertheless, it was Mejias belief failing the oral boards was a discriminatory/retaliatory act for his speaking out against Woods racist comments.

In his 1993-1994 evaluation Wood gave Watson lower ratings than Watsons partner. Watson was humiliated. Watson complained to the chief stating he and his partner had done everything together as a team and there was no reason to rate him lower. At the chiefs direction Wood changed Watsons evaluation to Watsons satisfaction. Watson similarly felt slighted when he was not awarded the medal of valor for being involved in a gun battle while on duty whereas other Caucasian officers had received such an award.

In his 1993-1994 performance evaluation Wood rated Mejia as acceptable in responsibility and competent in judgment. Mejia believed these ratings were unreasonably low and unwarranted.

Later in 1994, or at least starting in 1994, appellants twice sought to move laterally to the SWAT team. A position on the SWAT team would not have increased either their pay or benefits. Both appellants names were placed on the eligibility lists for transfer. Watson had spent six years on a SWAT team while on the San Diego police force. Watson believed it unfair someone else with less experience but different skills was transferred and he was not. The eligibility lists expired without either appellant being transferred to the SWAT team. This suggested to appellants they were being discriminated against because of their race/national origin because Lieutenants Cohen and Brokaw, who were in charge of making the selections, were Woods friends.

In late 1994 or early 1995 Wood transferred out of the department and remained out of the department for approximately two years. He returned to the narcotics division sometime in 1997 or 1998.

In late 1994 Mejia requested a transfer to the Street Narcotics Team. He went through the testing process and his name was placed on the eligibility list. According to Mejia, someone lower on the eligibility list received a transfer before he did. Mejia expressed to Lieutenant Tommy Johnson his belief Wood was somehow behind his failure to receive the transfer. Mejia held this belief although Wood was no longer in the department and was no longer his direct supervisor. A few months later in 1995 Mejia received his transfer to the Street Narcotics Team.

By virtue of being a member of the Street Narcotics Team Mejia was eligible to become a detective without further testing. According to internal and civil service rules eligibility lists specify they remain active for either 12 or 18 months depending on the job. Mejia had heard rumors management might expire the detective eligibility list early before he could be promoted. He went straight to the captain and confronted him with the rumor. Mejia believed management would kill the list to avoid reaching his name. According to internal and civil service rules eligibility lists do not expire before their published and set expiration date. The detective eligibility list did not expire and in 1995 Mejia was promoted to detective. Watson was also promoted to detective.

The Street Narcotics Team was composed primarily of minority officers. It was a highly productive group and received numerous commendations from outside law enforcement agencies. At some point a rumor circulated Wood had discussed with others in management the possibility of disbanding the Street Narcotics Team. It did not happen. Nevertheless, appellants believed it represented an attempt by Wood to retaliate against them personally for speaking out in 1993 about his racially derogatory story about dirty Mexicans.

In 1995 Watson claimed he was wrongly written up for mishandling evidence. Watson complained he did not warrant a write-up because another officer who had since left the unit, not he, was in charge of bagging and booking the evidence. Wood allegedly told him someone had to pay the price for mishandling the evidence and it might as well be Watson.

Employee evaluations were necessary and important to secure promotions. While under, first Sergeant McBrides, then Sergeant Serranos supervision appellants did not receive yearly evaluations for the years 1997 through 2000. Although none of the officers in the narcotics division received evaluations, appellants believed Wood somehow directed these sergeants not to prepare evaluations for appellants in order to fulfill his threat not to promote them so long as he, Wood, remained on the force. Appellants believed the failure to prepare the evaluations was based on their race and/or national origin and to retaliate against them for complaining about Woods racist comments in 1993.

In 1998, appellants took the boards to be promoted to sergeant. When only two persons passed the test scores were recalculated. Several Caucasian persons received passing scores and were placed on the eligibility list. Appellants did not make the list. Appellants claimed they asked to see their written exams but were refused. The job announcement itself states the circumstances under which candidates are permitted to review their written tests. On the date set for this so-called key inspection candidates may compare their answers to a key answer sheet to ensure accurate grading. However, no candidate is permitted to simultaneously review his or her answer sheet, the written exam and the key answer sheet. This policy was implemented to avoid the possibility of any candidate altering his or her test booklet.

In 2000, appellants again took the boards to be promoted to sergeant. A significant portion of the test is the department evaluation portion of the process. In 2000, it represented 40 percent of the score, later changed to 33 1/3 percent of the overall rating. According to internal and civil service rules, all lieutenants and captains meet in separate meetings to review and discuss each candidates records. These records consist of internal affairs records, sick time records, commendations and awards, and the personnel packet including the candidates performance evaluations.

For the 2000 promotion review to sergeant appellants packets lacked evaluations for the years 1997 through 2000, as noted. Mejia rated number 13 on the eligibility list

and Watson ranked lower still. To Mejia, it was inconceivable he could receive such a low score given his stellar record in the narcotics division and reputation for responsibility and productivity. Indeed, because he had been so productive on the Street Narcotics Team he had been chosen to work on a F.B.I. task force at the Inglewood Police Department called the Safe Streets Task Force. After his stint with the F.B.I. Mejia was selected to transfer to a facility in downtown Los Angeles to work on the High Density Drug Trafficking Areas Task Force (HIDTA) in conjunction with the D.E.A. Mejia believed the lack of written yearly evaluations proving his worth permitted Wood to bad mouth him and thus poison all the other lieutenants against him. Mejia believed Wood must have convinced all the other lieutenants to give him a low rating based on Mejias race and because he had reported Woods racial slurs in 1993.

Mejia cited several examples of incidents which occurred while under Sergeant Serranos direct supervision between 1998 and 2002 he claimed were motivated by racial discrimination and to retaliate against him for having complained about Woods racially derogatory comments in 1993. Although Sergeant Serrano is Hispanic, Mejia asserted he was also Woods friend and based on this friendship took what Mejia considered retaliatory or harassing actions against him.

A local businessman wrote a letter to the department to commend Mejia for his assistance in a matter. Sergeant Serrano lost the citizen commendation. Sergeant Serrano asked Mejia to obtain a copy so it could be placed in Mejias personnel file. Mejia did not do so. Mejia felt Sergeant Serrano lost the citizen commendation intentionally to appease Wood and to impair Mejias opportunities for advancement.

At some point Mejia informed Sergeant Serrano the members of the Street Narcotics Team wanted to wear uniforms to appear more professional. As undercover officers the normal attire is plain clothes. Sergeant Serrano told Mejia to submit a written proposal for approval. Mejia did not prepare or submit such a report. One day when all the officers on the Street Narcotics Team appeared in matching black slacks they wanted as their uniform Sergeant Serrano told Mejia if the officers wore their uniforms again he would consider it an act of insubordination.

The first few months Mejia was working downtown on the D.E.A.s HIDTA task force Sergeant Serrano called Mejia several times to urge Mejia to turn in his time cards and his monthly reports of his activities on the HIDTA task force. Each of the calls was brief. Nevertheless, Mejia felt harassed by the phone calls. He believed Wood directed Sergeant Serrano to harass him.

Immediately prior to Mejias assignment with the HIDTA task force he had been working on the Safe Streets Task Force with the F.B.I. The F.B.I. had provided Inglewood task force members with a rental vehicle, Nextel two-way radios, cell phones and gas cards. Once Mejia was reassigned to the D.E.A.s HIDTA program Sergeant Serrano asked Mejia to return the rental car, gas card, Nextel two-way radio and cell phones to the F.B.I. He had to ask Mejia several times before Mejia returned the property to the F.B.I. despite the fact D.E.A. agents had issued Mejia their own Nextel cell phones and gas card.

The F.B.I. agent in charge of the program did not mind if Mejia wanted to continue using the rental car. Sergeant Serrano, on the other hand, did not want to jeopardize the departments relationship or contracts with the F.B.I. After several months he managed to get Mejia to return the F.B.I.s property because the officer who replaced Mejia on the task force needed the equipment. Mejia believed Sergeant Serranos actions were meant to simply harass him.

As a senior officer, Mejia was entitled to the car of his choice among the Inglewood Police Department fleet. Mejia drove a variety of different cars. However, one day he was driving a Nissan Maxima with over 200,000 miles on the odometer. The cars engine caught fire on the freeway. Mejia called Sergeant Serrano, told him what had occurred, and asked him to send a tow truck. Sergeant Serrano sent a tow truck but the driver claimed he could not locate Mejias car. Mejias partner used his personal AAA card to call a tow truck to haul the vehicle away. Mejia was upset he received inadequate assistance from the Inglewood Police Department in this dangerous situation, despite his call for help.

Mejias performance evaluations were ultimately brought up to date. In 2001 Sergeant McBride prepared a performance evaluation for Mejia for the 1997-1998 period and Sergeant Serrano prepared a single comprehensive evaluation for the 1998 through 2000 period. Sergeant Serrano prepared an evaluation for Watson for the 2000-2001 period. Sergeant Serrano rated Mejias job performance exceptional, the best possible rating. Mejia was nevertheless dissatisfied because Sergeant Serrano noted on the areas for improvement: On rare occasions, Oscars leadership seems to go against the departments procedures and philosophies and more in a direction of personal preference or popular opinion. I have discussed this issue with Oscar on previous occasions and have asked him to question himself during these times to see if he is leading in the best interest or against the best interest of the organization. Mejia believed Wood somehow influenced Sergeant Serrano to add this negative comment because Mejia had complained about Woods racist comments in 1993.

In 2002 Sergeant Serrano similarly gave Watson the highest possible rating of exceptional.

In 2002 appellants took the boards again for a sergeant position. Mejia was ranked 10th and Watson was ranked 23rd on the eligibility list of 23 candidates.

On December 6, 2002 Mejia was promoted to sergeant. Mejia was assigned to a patrol division. Mejia felt the assignment was racially discriminatory, and in retaliation for his complaint against Wood. Mejia wanted instead a sergeant position in the narcotics division. Mejia, however, acknowledged normal procedure within the department was to assign a new sergeant to a patrol division.

Appellants agree that in the department evaluation portion of the 2000 and 2002 sergeant boards Wood ranked Mejia higher than four other lieutenants and ranked Watson higher than did five other lieutenants.

In March 2002 appellants filed charges of discrimination against Wood, the City of Inglewood and the Inglewood Police Department with the Department of Fair Employment and Housing. Their claim asserted they had been harassed and denied

promotion on the basis of their race and/or national origin. They further claimed they had been retaliated against since giving evidence in an investigation of racial discrimination. The Department of Fair Employment and Housing issued appellants right-to-sue letters the next day. Appellants filed their complaint in August 2002 alleging claims of race and national origin discrimination, harassment and retaliation, failure to prevent harassment and discrimination, aiding and abetting acts of discrimination, harassment and retaliation and requesting injunctive relief.

In November 2003 Wood, the City of Inglewood and the Inglewood Police Department moved for summary judgment. Appellants filed opposition and included declarations from former and current Inglewood police officers attesting to historical racial discrimination in the police department over the past several decades. The court heard oral arguments on two occasions in December and took the matter under submission. In January 2004 the court issued its rulings. The court granted summary judgment in favor of Wood. The court denied the City of Inglewood and the Inglewood Police Departments motion for summary judgment. The court granted the City of Inglewood and the Inglewood Police Departments motions for summary adjudication on certain issues, but denied their motions for summary adjudication on the discrimination claim. The court granted appellants leave to amend their complaint to more fully address the issue.[1]

Appellants appealed from the judgment entered in favor of Wood. The court later stayed trial on appellants discrimination claim against the City of Inglewood and the Inglewood Police Department pending resolution of this appeal. The court also placed off-calendar Woods motion for costs and appellants motion to tax those costs pending resolution of this appeal.[2]

DISCUSSION

I. STANDARD OF REVIEW OF A SUMMARY JUDGMENT.

Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. (State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034-1035.) We review the trial courts decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Id. at p. 1035.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)[3]

Summary judgment is appropriate if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.[4]

We review the judgment with these standards in mind.[5]

II. GENERAL PRINCIPLES OF THE FAIR EMPLOYMENT AND HOUSING ACT (FEHA).

The FEHA directs it is an unlawful employment practice, except in certain circumstances inapplicable to the case at bar, for an employer because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.[6]

It is similarly an unlawful employment practice [f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.[7]

Under the FEHA freedom from discrimination in employment on the basis of the enumerated classifications is a civil right.[8] The FEHA is to be liberally construed to effectuate its purposes.[9]

For purposes of these anti-discrimination provisions the FEHA defines an employer as including any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .[10]

The FEHA also proscribes harassment in employment on the basis of an employees protected status. The FEHA states it is an unlawful employment practice [f]or an employer, . . . , or any other personto harass an employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, . . . [11] The definition of person under the anti-harassment section of the FEHA includes an individual.[12]

Thus, in contrast to the anti-discrimination provisions directed at employers, the provision prohibiting harassment includes individuals within its proscription.

III. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF WOOD ON APPELLANTS RACIAL/NATIONAL ORIGIN DISCRIMINATION CLAIM.

In Reno v. Baird[13]the California Supreme Court held an individual supervisor, as opposed to the employer itself, may not be held liable for employment discrimination under either the FEHA or a common law cause of action for wrongful termination in violation of the public policy expressed in the FEHA.

In Reno v. Baird, a registered nurse who alleged she had been discharged because she had cancer, sued her former supervisor for employment discrimination under the FEHA for discharge in violation of public policy. Our Supreme Court held the language of the statute indicated the Legislature did not intend individual supervisory employees to be held liable for employment discrimination. The Reno v. Baird court noted the statutory language regarding discrimination differs from the other prohibitions regarding harassment under the FEHA. The court noted the prohibition regarding discrimination under the FEHA applies only to an employer[14]whereas the prohibition against harassment, for example, applies to an employer . . . or any other person.[15]

Because the supervisor in Reno v. Baird was not the employees employer, the court held the supervisor could not be held personally liable for the alleged employment discrimination.[16]

In their reply brief on appeal appellants concede the Supreme Courts decision in Reno v. Baird[17]is controlling. Under the authority of Reno v. Baird, they acknowledge Wood cannot be held personally liable for employment discrimination, because Wood was not their employer, as distinguished from other types of unlawful employment actions prohibited under the FEHA.

Accordingly, appellants now agree the trial court correctly granted summary judgment in favor of Wood on their employment discrimination claim.

IV. APPELLANTS EVIDENCE FAILED TO STATE A PRIMA FACIE CASE FOR HARASSMENT AS A MATTER OF LAW.

In Reno v. Baird the Supreme Court cited with approval the Court of Appeal decision in Janken v. GM Hughes Electronics,[18]the first decision to hold individual supervisors could not be personally liable for discrimination under the FEHA. The Reno v. Baird court also quoted with approval the Janken courts analysis of the distinction between unlawful employment discrimination, for which individuals could not be liable, and harassment, for which individual employees or supervisors could be personally liable. The Janken courts distinction between the two unlawful employment practices is as follows:

[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employers business or performance of the supervisory employees job. (Cf. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301 [sexual assault not motivated by desire to serve employers interest]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 [sexual harassment by deputy sheriff not within scope of employment].)

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to

personnel management, making decisions is a type of conduct essential to personnel management. While it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory.

Courts have employed the concept of delegable authority as a test to distinguish conduct actionable as discrimination from conduct actionable as harassment. We adopt this approach to find that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment. (See Birkbeck v. Marvel Lighting Corp. (4th Cir. 1994) 30 F.3d 507, 510 and fn. 1 [distinguishing personnel decisions of a plainly delegable character from harassment]; and Stephens v. Kay Management Co., Inc. (E.D.Va. 1995) 907 F.Supp. 169, 171, 173 [no personal liability of individual supervisors for employment-related decisions or personnel decisions of a plainly delegable character].) Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.

We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding

who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA. (Janken, supra, 46 Cal.App.4th at pp. 63-65, fns. omitted.)[19]

The bulk of the evidence appellants claim constitutes harassment involves instead personnel or management decisions within the scope of their supervisors responsibility. For example, calling Mejia repeatedly to remind/encourage him to turn in his monthly reports or time cards cannot be viewed as anything more than a routine management action. Requiring Mejia to turn in his F.B.I. rental car was similarly not harassment. The action instead reflects a management concern about maintaining good relations with the departments federal counterpart. Other actions of which appellants complain similarly constitute personnel decisions and not harassment, as they contend. For example, the decision who would and who would not receive a lateral transfer to the SWAT team was necessarily a personnel decision. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management.[20]

On the other hand, the dirty Mexicans story Wood relayed in 1993 was a form of harassment. It was offensive and obnoxious to the officers who heard it and/or learned of it. The racially derogatory story meets the definition of harassment because it was completely unrelated and unnecessary to Woods job duties as the officers supervisor.

Appellants do not dispute that aside from these comments in 1993 Wood did not make, and appellants never heard rumors Wood had made, any further discriminatory remarks on the basis of either race, national origin or otherwise.

As the trial court correctly found, the single incident in 1993 was insufficiently pervasive to create a hostile or offensive work environment as a matter of law. Instead, [w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment, the law is violated. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.)[21]

We agree the evidence of the single isolated incident of harassment is insufficient standing alone to raise an inference of a hostile or offensive work environment based on race or national origin.[22] Accordingly, the trial court correctly found appellants had failed to state a prima facie case of harassment and thus Wood was entitled to judgment as a matter of law on this claim.

V. APPELLANTS EVIDENCE DOES NOT RAISE AN INFERENCE OF A CAUSAL LINK BETWEEN THEIR PROTECTED ACTIVITY AND ANY ALLEGED ADVERSE EMPLOYMENT ACTION SUFFICIENT TO STATE A PRIMA FACIE CASE FOR RETALIATION IN VIOLATION OF THE FEHA.

Wood argues the decision in Reno v. Baird, holding a supervisor who was not the employees employer could not be personally liable for discrimination, should also bar a supervisors personal liability for retaliation. Wood claims because the identical activity may support both a retaliation claim and a claim of discrimination, it is illogical to conclude that individuals can be personally liable under the retaliation prong of [the] FEHA for engaging in the exact same conduct.

In some cases evidence to establish both employment discrimination and retaliation may well overlap. But this possibility is not dispositive in deciding whether a supervisor may be personally liable for retaliation. This court has already considered the issue and in Taylor v. Department of Water and Power[23]concluded a supervisor may be held personally liable for retaliation under the FEHA. In Taylor, we so held based on the FEHAs statutory reference to person, indicating a legislative intent to allow individual liability for retaliation by supervisors.[24] Accordingly, we reject Woods argument he cannot be personally liable for retaliation as appellants supervisor.[25]

To establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the

protected activity and the employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. [Citation.][26]

To be an adverse employment action the action must materially affect the terms, conditions, or privileges of employment to be actionable.[27] This does not only encompass so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase terms, conditions, or privileges of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.[28]

Stated differently, [m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).[29]

The question whether an employee has suffered an adverse employment action must be viewed under the totality of the circumstances, taking into account the unique circumstances of the affected employee, as well as the workplace context of the claim.[30]

Appellants have satisfied the first element of their prima facie case for retaliation. They engaged in a protected activity when they complained about the comments Wood made to the officers in 1993 which appellants believed were unlawfully motivated by racial and national origin discrimination. Appellants also participated in the Inglewood Police Departments investigation of Woods racially derogatory comments by agreeing to be interviewed about those comments. This is adequate evidence of protected activity to satisfy the first prong for a prima facie case of retaliation.

Leaving aside the question whether appellants have suffered any adverse employment action, we conclude they have failed to present any evidence of a causal link between their protected activity and any alleged adverse action sufficient to establish a prima facie case of retaliation.

Here, the evidence showed appellants engaged in their protected activity in 1993 or 1994. There was no evidence Wood then or ever built a packet on them (the evidence of transfers and promotions suggests the contrary). There was also no evidence Wood made sure they would not promote, as he allegedly threatened because they reported his discriminatory comments (again, the evidence of actual promotions suggests the contrary).

Moreover, Wood transferred out of the department shortly thereafter. He did not return for approximately two years. For this reason the vast majority of the acts about which appellants complain were suffered at the hands of someone else entirely

primarily Sergeant Serrano, but also Sergeants Cohen and Brokaw. Appellants evidence in support of their prima facie case consisted of a series of unrelated actions, taken by a variety of different people, over the course of several years.[31] Appellants presented no evidence to raise an inference Wood directed or encouraged Sergeant Serrano and the others to retaliate against them for their protected activity.[32]

More importantly, appellants presented no evidence from which one could reasonably infer any action perceived to be adversetaken by either Wood or Sergeant Serranowas as a result of having complained about Woods discriminatory comments in 1993. Appellants relied for this inference on rumor, suspicion, or supposition. This is not the same as circumstantial evidence from which reasonable inferences may be drawn. Suspicions or rumors ungrounded in fact are insufficient substitutes for facts to suggest the necessary causal link.[33] Nor can their personal beliefs unsupported by facts suffice to establish the causal nexus otherwise absent on this record.[34]

In sum, on this record we conclude appellants evidence is insufficient to establish a causal link between their protected activity and any adverse action adequate to state a prima facie case for retaliation against Wood. We thus further find the trial court properly granted summary judgment in favor of Wood on appellants claim for retaliation.

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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[1] The trial court expressly declined to provide written rulings on the parties evidentiary objections. The court cited the decision in Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 57 for the proposition it is presumed in ruling on motions for summary judgment trial courts do not consider irrelevant or incompetent evidence. Relying on this presumption was inappropriate. However, the parties did not press the issue, believing it would have been futile in the circumstances. Generally, when a trial court fails to rule on objections to evidence presented in conjunction with a summary judgment motion, the objections are deemed forfeited on appeal. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1; Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 623.)

[2] We deny Woods request to augment the appellate record to include copies of the motions regarding costs because they are irrelevant to any issue raised in this appeal.

[3]Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.

[4] Code of Civil Procedure section 437c, subdivision (c); Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240.

[5] Appellants contend the summary judgment should be reversed on procedural grounds. They point out Wood failed to comply with California Rules of Court, former rule 342, now rule 3.1350(d), by failing to repeat, verbatim each cause of action, claim and affirmative defense and each supporting material fact claimed to be without dispute with respect to each in his separate statement. Without citation to applicable authority appellants claim this failure is fatal to the judgment. (Compare Wilson v. Blue Cross of Southern California (1990) 222 Cal.App.3d 660, 671 [the summary judgment had to be reversed as to certain defendants who were not even mentioned in the defendants separate statement of undisputed material facts].)

The failure to provide any statement of undisputed material facts could in some circumstances be sufficient to deny judgment. (See, e.g., Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087.) However, we are aware of no case holding a summary judgment must be reversed for deviating from the format of the separate statement specified in the California Rules of Court, as opposed to the imposition of some other appropriate sanction. The court could have denied the motion with leave to reconfigure the separate statement to conform to the Rules of Court. Alternatively, the trial court had the discretion to ignore the procedural defect.

[6] Government Code section 12940, subdivision (a), italics added.

[7] Government Code section 12940, subdivision (h), italics added.

[8] Government Code section 12921, subdivision (a).

[9] Government Code section 12993, subdivision (a).

[10] Government Code section 12926, subdivision (d).

[11] Government Code section 12940, subdivision (j)(1), italics added.

[12] Government Code section 12925, subdivision (d) [Person includes one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.].

[13]Reno v. Baird (1998) 18 Cal.4th 640, 663.

[14]Reno v. Baird, supra, 18 Cal.4th 640, 644-645; Government Code section 12940, subdivision (a).

[15]Reno v. Baird, supra, 18 Cal.4th 640, 644-645; Government Code section 12940, subdivision (j)(1).

[16]Reno v. Baird, supra, 18 Cal.4th 640, 663 [we conclude that individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.].

[17]Reno v. Baird, supra, 18 Cal.4th 640.

[18]Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55.

[19]Reno v. Baird, supra, 18 Cal.4th 640, 645-647, quoting Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, 63-65.

[20]Reno v. Baird, supra, 18 Cal.4th 640, 647, quoting Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, 65.

[21]Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1137.

[22] Compare Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 [supervisors single racial slur directed at the plaintiff, immediately following her objection to his requests she steal documents from a coworker and lie about it, when viewed with the facts he constantly called the plaintiff a bitch and constantly used profanity in her presence, suggested the single racial slur was not an isolated event; thus the evidence in combination was sufficient to defeat summary judgment on the plaintiffs claim of a hostile work environment].

[23]Taylor v. City of Los Angeles Department of Water and Power (2006) 144 Cal.App.4th 1216.

[24]Taylor v. City of Los Angeles Department of Water and Power, supra, 144 Cal.App.4th 1216, 1237; see also, Walrath v. Sprinkel, supra, 99 Cal.App.4th 1237, 1242 [Reno v. Baird is not controlling as to retaliatory actions under the FEHA].

[25] The decision in Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028 does not assist Woods position. In Yanowitz the employee sued her former employer. The court thus had no occasion to consider the employees supervisors liability for retaliation.

[26]Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028, 1042.

[27]Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028, 1052.

[28]Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028, 1054, footnote omitted.

[29]Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028, 1054-1055, footnote omitted.

[30]Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th 1028, 1052 and footnote 11.

[31] See, e.g., McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 390 [what the plaintiff contended was a continuous course of conduct was in fact a series of events, each bearing little relationship to the others, and at least some of which clearly were not the result of unlawful retaliation].

[32] Compare, Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325-1328 [second-tier supervisor is not personally liable for harassment, unless the second-tier supervisor participated in the supervisors harassment, or encouraged or assisted the harassment].

[33]Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668, 672 [a party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of material fact].

[34]Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614 [if the nonmoving party rests merely on conclusory allegations, improbable inferences or unsupported speculation, summary judgment may be appropriate even where intent is at issue]; Schuler v. Chronicle Broadcasting Co., Inc. (9th Cir. 1986) 793 F.2d 1010, 1011 [subjective personal beliefs do not raise a genuine issue of material fact].