Ng v. Jacobs Engineering Group

Filed 10/16/06 Ng v. Jacobs Engineering Group CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed.

Schuler & Brown, Daniel E. Hoffman and Sam D. Ekizian for Plaintiff and Appellant.

Seyfarth Shaw, Raymond R. Kepner, Donald C. Potter, John A. Van Hook, and Laurie E. Barnes for Defendant and Respondent.

________________________

In this case, we hold that an employer did not violate state law by terminating an employee who, in disobedience to company policy and specific admonitions not to do so, persisted in using company equipment and facilities for religious proselytizing. Edna Yuen Man Ng (plaintiff) appeals from an adverse judgment entered after the trial court granted summary judgment to Jacobs Engineering Group (defendant) in this employment discrimination action. She argues there are triable issues of material fact precluding summary judgment on her cause of action for religious discrimination based on defendant’s failure to accommodate her religious beliefs and practices. She also claims there are triable issues of material fact as to defendant’s failure to prevent discrimination and as to defenses raised by defendant. Based on these arguments for reversal of the judgment, plaintiff contends the award of costs also must be reversed.

We conclude that plaintiff is not entitled to the accommodation she claimed. Plaintiff has abandoned her other causes of action by failing to present argument on them in her opening brief. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Plaintiff was hired by defendant in November 2001 as a process engineer assigned to its Long Beach facility. She describes herself as an evangelical Christian, whose religious beliefs compel her to share her “religious beliefs with [her] co-workers in an effort to bring them to a saving faith in Jesus Christ.” Plaintiff testified in deposition that she went through an employee orientation and was given copies of defendant’s e-mail policy (exhibit 19) and anti-harassment policy.

In December 2001, plaintiff conducted a lunchtime Christmas party for other employees in one of defendant’s conference rooms. Using company equipment and computers, she sent e-mail invitations to coworkers without knowing their religious beliefs. She did not seek and had not received permission for the e-mail or the event from her supervisors, nor did she tell them that she was inviting her pastor to speak about Christmas as a religious holiday. The minister set up a keyboard, microphone and amplifiers in the conference room and religious Christmas carols were sung. There were complaints about the loud music. In an e-mail to a family member, plaintiff described the Christmas party and said that her pastor and the pastor’s husband led the “caroling, praying, and sharing.” She said that coworkers told her this was the first time they had “a Christmas party so special and unique like this.”

Plaintiff also held a Christian-based Easter event at the office. She brought 9 to 10 dozen doughnuts for breakfast, then sent an e-mail to everyone “I met in the company, including management” to join the Easter celebration. She displayed 20 copies of a Christian tract with a religious message and an Easter card with the word “Jesus” on a table at the breakfast. As before, she neither sought nor obtained permission to distribute religious pamphlets, or to hold a religious Easter celebration at work. Her goal was to convert people to evangelical Christianity.

After the Easter party, Greg Rumford, a manager for defendant, met with plaintiff. He told her that she should not distribute religious literature at work because other Jacobs employees might be made uncomfortable if they did not share plaintiff’s religious views. Plaintiff was told not to engage in this kind of activity in the future.

Plaintiff followed the meeting with an e-mail to Rumford thanking him for explaining the company policies. She explained her strong Christian belief and said, “I don’t mind to risk myself to preach the gospel and witness Christ in any circumstances of my life.” She expressed her hope that Jacobs would allow more ministries at the office like the Christmas party. Plaintiff referred to the prospect of increased revenues for her former employer after she and others began a prayer ministry there.

Rumford replied with an e-mail memorializing their conversation. He reiterated that plaintiff was not to use e-mail for personal messages addressed to large numbers of employees; not to use a large part of the coffee room for non-work purposes; and not to present or distribute controversial materials in the office. He stressed that Jacobs had to be considerate of the beliefs of all its employees, and not allow plaintiff to push her beliefs on others.

Plaintiff responded with another e-mail to Rumford, thanking him for clarifying policy and informing him she had requested an appointment with Carol Charron, the company’s human resources manager. According to plaintiff, Charron told her that Jacobs did not want anything to do with religion and in order to make other employees comfortable, no Christian material was to be displayed. Plaintiff agreed to abide by these guidelines. Charron followed the meeting with an e-mail to plaintiff reiterating that the display of religious materials, and use of company space and e-mail for religious purposes was inappropriate.

Several weeks later plaintiff sent an e-mail to Charron asking for permission to hold a prayer event in a company conference room during the lunch hour on the National Day of Prayer. Charron denied the request, reiterating that company facilities, including stairwells, could not be used for prayer meetings because of the company policy to provide a neutral work environment. Charron suggested that plaintiff explore the use of cafeterias located near the Jacobs facility. Plaintiff admitted that she never checked to see if any of those cafeterias had private meeting rooms.

Plaintiff next wrote to Noel Watson, Jacobs’s chief executive officer, asking that he review Charron’s decision. After expressing some of her religious beliefs, plaintiff wrote: “I must obey the authority of this company. That is why I request again and again for a conference room during lunch time. It is a MAJOR issue for you to decide. ‘Go’ or ‘No Go.’” Plaintiff promised profit gains if her prayer meetings were approved, although she acknowledged complaints from other employees. She mentioned that her former employer had stopped her workplace religious activities. Plaintiff said: “If I pray outside area of the company, I rather pray at home.”

John Prosser, a senior vice president for Jacobs, responded to plaintiff’s request. He said, “As you know, it is the policy of the Company to provide a work environment free of discrimination or harassment. Accommodating your request might create a scenario where the Company would be viewed as condoning a violation of its own policy, which is something that we cannot allow to happen.” Plaintiff responded by e-mail that she was disappointed, but promised to adhere to the final decision and company policy. She wrote: “What I mean ‘by taking the full responsibility’ is that after I have a chance to hear and understand the reasons of any accusations against me and to be able to reconcile with the accuser, if he or she insists not to reconcile with me, you or other managers then have the right to take any necessary disciplinary actions such as terminating my job at Jacobs for this cause. I will accept whatever the manager decided in that case without a word of complain. This is my promise to you all again in writing.”

Plaintiff broke this promise the next month, beginning what she characterized as an e-mail ministry at the office, and holding unauthorized weekly prayer meetings in company conference rooms. Her e-mails quoted biblical Scripture. Plaintiff said that she had prayed about the situation after her request was denied, and had decided to have “talking” meetings rather than “prayer” meetings. She offered to take full responsibility for any consequences. A series of e-mails on the company system followed, in which plaintiff exhorted coworkers to attend the weekly meetings, asking the others: “Let’s call out to God for the needs. Wait and see the amazing testimony! Don’t miss out on the opportunity! We will talk to God to bless our particular projects and all our needs. Come to His presence today!” Plaintiff also e-mailed religious materials to about 30 other employees.

Plaintiff was counseled about these activities on September 9, 2002 by Charron and one of plaintiff’s supervisors, Israel Milstein. In a written warning, plaintiff was advised to cease her activities and (1) to use company e-mail for business purposes only; (2) to obtain approval of a supervisor for any e-mail sent to “everyone” or “group,” and (3) to discontinue use of company space for activities involving prayer or religious meetings. The warning advised plaintiff that her failure to abide by these conditions “will result in further disciplinary action up to an[d] including termination of employment.”

The next day, plaintiff sent an e-mail over the office system addressed: “Greeting to my Most Wonderful Brothers/Sisters in Christ and Friends.” She announced that meetings would be held off the work site, and asked each addressee to reply, indicating whether he or she wanted to continue receiving her e-mails. Plaintiff said that she was only allowed to send the e-mails to interested parties, and offered to send the e-mails to a home address if this was the preference. She wrote: “Remember, I may send a prophetic message that may save you and your family out of catastrophe like 911. Many times God uses me to warn people. I have a higher calling. I tell you honestly that I also don’t mind any more to risk my job and my life for any of you because God and I love you very much.” The e-mail also quoted Scripture.

Other religious-themed e-mails were sent by plaintiff at work in September and October 2002. Plaintiff was counseled about her violations of company policy again in October. The next day she sent another unauthorized religious e-mail over the work system. Plaintiff quoted Scripture and asked the addressees to pray for her e-mail ministry and to be a partner of her prayer ministry.

In early November, plaintiff again sent religious e-mails containing biblical quotations over the office system. Her employment was terminated on November 13, 2002. She understood that it was for improper use of company e-mail. Plaintiff was advised that her employment was terminated for insubordination, based on her continued use of the e-mail and company facilities for religious purposes. In her deposition, she said she had stopped the long e-mails, trying to keep them short to accommodate company policy. She continued to send religious e-mails to employees at defendant’s facility after her termination.

Plaintiff sued Jacobs for violation of the California Fair Employment and Housing Act (Gov. Code, § 12940 (FEHA)),[1] wrongful termination in violation of public policy, and breach of the covenant of good faith and fair dealing. She alleged that defendant failed to accommodate her religious beliefs and terminated her because of her religious practices. The trial court granted defendant’s motion for summary judgment and sustained defendant’s evidentiary objections to large portions of plaintiff’s declaration in support of her opposition. The trial court found that plaintiff was prohibited from proselytizing in the workplace by company policies on anti-harassment and e-mail usage. Although defendant told plaintiff she could use her private e-mail account to send messages to willing recipients, and that she could conduct her religious activities outside of its building, plaintiff refused those suggestions.

The trial court found no evidence that defendant applied its policies in an inconsistent manner or that other employees were permitted to engage in religious proselytizing in the workplace. Complaints from plaintiff’s coworkers regarding her proselytizing activities in the workplace exposed defendant to potential liability for religious harassment claims by the coworkers if plaintiff were allowed to continue her proselytizing. The court concluded that each of plaintiff’s causes of action failed based on these undisputed facts, and because defendant was not required to permit an employee to impose her religious views on other employees or to allow its facilities to be used for religious purposes.

Plaintiff moved for reconsideration on procedural grounds. She argued that Charron’s deposition was not taken until the day before plaintiff’s opposition was due, and therefore could not be incorporated in her opposition. Defendant pointed out that plaintiff waited nearly nine months after filing her complaint, and more than six weeks after the summary judgment motion was filed, to notice Charron’s deposition. Plaintiff conducted no other discovery. Defendant also pointed out that plaintiff had failed to request a continuance of the summary judgment hearing under Code of Civil Procedure section 437c, subdivision (h). No mention of the Charron deposition was made by plaintiff’s counsel during oral argument on the summary judgment motion. The trial court denied the motion to reconsider because the evidence was not newly discovered, there had been no request for a continuance to obtain the transcript of the deposition, and the allegedly new evidence did not change the legal conclusion that defendant owed no duty to allow plaintiff to proselytize in the workplace. Plaintiff appealed from judgment in favor of defendant.

DISCUSSION

I

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

II

The first cause of action is for religious discrimination in violation of FEHA on the theory that defendant failed to accommodate plaintiff’s religious practices. Section 12940, subdivision (a) makes it an unlawful employment practice “[f]or an employer, because of the . . . religious creed . . . of any person, . . . to discharge the person from employment . . . .”

California law imposes a duty on an employer to accommodate an employee’s religious belief or observance. It is an unlawful employment practice to discharge a person “because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer . . . demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer . . . . Religious belief or observance, as used in [section 12940], includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.” (§ 12940, subd. (l).) As defined in FEHA, “‘Religious creed,’ ‘religion,’ ‘religious observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, observance, and practice.” (§ 12926, subd. (o).)

Plaintiff alleged that although she requested accommodation of her religious practices, defendant “responded by narrowing all her options and by gradually denying her any right to acknowledge her religion. She was denied the right to schedule a conference room or lunch room for any religion related activity. When she and her fellow Christians would meet together for lunch in a vacant conference room, she was told to cease. Ng and her fellow employees were denied the opportunity to pray together in a stairwell. She was not allowed to pass along personal messages to her colleagues via e-mail. And finally Ng was terminated for sending e-mails to interested employees from her home.”

“There are three elements to a prima facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement. (Friedman v. Southern Cal. Permanente Medical Group [(2002)] 102 Cal.App.4th [39] at p. 45 [125 Cal.Rptr.2d 663].) Once the employee establishes a prima facie case with sufficient evidence of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.]’ (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 [58 Cal.Rptr.2d 747].)” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1011. )

Defendant does not question the sincerity of plaintiff’s religious beliefs, nor does it claim it was unaware of them. Instead, defendant contends that plaintiff cannot establish that her religious beliefs conflicted with an employment requirement. Defendant argues that plaintiff’s duties as a process engineer did not conflict with her desire to proselytize, in part because it was plaintiff’s choice to conduct these activities in the workplace instead of off-site or outside work hours.

We think defendant takes too narrow a view of what constitutes an employment “requirement” in this context. (See Friedman v. Southern Cal. Permanente Medical Group, supra, 102 Cal.App.4th at p. 45.) All employees have two kinds of work requirements: those defined by the particular duties of their position, and those defined by the general policies of the employer. Here, defendant had an anti-discrimination and anti-harassment policy which provided in pertinent part: “[W]e want to maintain an environment that fosters employee respect and promotes harmonious, productive working relationships. That means that those relationships must be free of harassment or any other form of discrimination. Any harassment, therefore, be it based on . . . religion . . . , will not be tolerated and should be immediately reported to the EEO officer.” Plaintiff’s proselytizing activities directly conflicted with this anti-harassment policy.

Defendant argues, nevertheless, that it was entitled to summary judgment because no accommodation of plaintiff’s proselytizing was possible without undue burden. It cites Chalmers v. Tulon Co. of Richmond (4th Cir. 1996) 101 F.3d 1012. Chalmers was an evangelical Christian who believed she should share her religious convictions. To that end, she wrote a letter to her supervisor at his home advising him that God was not pleased with his conduct and suggesting that he find salvation in God. (Id. at p. 1015.) Unfortunately, the letter was received by the supervisor’s wife while he was away and she became distraught at the thought that the reference to misconduct meant adultery. The resulting marital discord caused the supervisor to recommend that Chalmers be fired because he could no longer work with her. During the ensuing investigation, the employer learned that Chalmers had sent a letter to another employee implying that her unwed motherhood had caused her illness. (Id. at p. 1016.) Chalmers was terminated for disrupting the workplace, negatively impacting working relationships, and invading the privacy of other employees. (Id. at p. 1017.) Chalmers sued under title VII (42 U.S.C. § 2000e-2) on the theory that her letter writing constituted protected religious activity which should have been accommodated by a lesser punishment.

One ground of the Chalmers court’s decision affirming summary judgment for the employer was its conclusion that Chalmers’s conduct was “not the type that an employer can possibly accommodate, even with notice.” (Chalmers v. Tulon Co. of Richmond, supra, 101 F.3d at p. 1021.) The court observed that the typical religious accommodation suit involves “religious conduct, such as observing the Sabbath, wearing religious garb, etc., that result in indirect and minimal burdens, if any, on other employees. Cf. Wilson v. U.S. West Communications, 58 F.3d 1337, 1342 (8th Cir. 1995) (accommodation required when employee wore a religious button that bothered co-workers indirectly). An employer can often accommodate such needs without inconveniencing or unduly burdening other employees.” (Chalmers v. Tulon Co. of Richmond, supra, 101 F.3d at p. 1021.)

The Chalmers court distinguished situations in which the religious practice of an employee imposes “personally and directly on fellow employees,” invading their privacy and criticizing their personal lives. (Chalmers v. Tulon Co. of Richmond, supra, 101 F.3d at p. 1021.) In such situations, the employer “is placed between a rock and a hard place.” (Ibid.) If the employer condoned Chalmers’s letters, it would be subject to possible suits by the recipients on the grounds of violation of their religious freedom or religious harassment. (See also Wilson v. U.S. West Communications (8th Cir. 1995) 58 F.3d 1337, 1342 [“We reiterate that Title VII does not require an employer to allow an employee to impose his religious views on others. The employer is only required to reasonably accommodate an employee’s religious views.”].)

In this case, as in Chalmers and Wilson, plaintiff’s conduct had an impact on other employees. Plaintiff’s activities were specifically directed at coworkers whom she hoped to convert to her religious beliefs. She does not dispute that coworkers complained about her proselytizing. The problem this presented to defendant was not merely hypothetical, as plaintiff asserts. Defendant’s anti-harassment policy is consistent with public policy embodied in FEHA. If we were to require defendant to accommodate proselytizing in the workplace, as plaintiff suggests, it would violate its own policy and be subject to claims by other employees desiring to use company facilities to share their own religious beliefs.

Plaintiff argues: “The point of antidiscrimination laws is to open up employment opportunities for individuals in spite of differences. Allowing co-workers to stifle the religious beliefs of others (often resulting in the termination or constructive discharge of the religious employee) is antithetical to these principles, and results in a burden being placed on religious employees because of their religion.” She asserts that the objections of fellow employees do not constitute undue hardship for the employer. In support of her claim, plaintiff cites Cummins v. Parker Seal Company (6th Cir. 1975) 516 F.2d 544, vacated on rehearing, Parker Seal Co. v. Cummins (1977) 433 U.S. 903. Apart from the questionable precedential value of the case, it is distinguishable because it involved accommodation of an employee’s Sabbath observance rather than direct proselytizing activities such as those engaged in by plaintiff.

We conclude that defendant is entitled to judgment on the first cause of action because accommodation of plaintiff’s proselytizing would have worked an undue hardship. This disposes of plaintiff’s related claim that defendant failed to take reasonable steps to prevent discrimination in violation of section 12940, subdivision (k).[2] The record establishes that defendant adopted an anti-harassment policy consistent with this statutory mandate. Its failure to allow plaintiff to impose her religious beliefs on coworkers did not constitute a violation of that duty.

Plaintiff argues in her reply brief that there are triable issues of material fact as to a disparate treatment theory of religious discrimination. Since she made no argument on this theory in her opening brief, we do not consider the claim as raised in her reply brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)

III

Plaintiff’s second cause of action is for wrongful discharge in violation of public policy, and her third is for breach of the covenant of good faith and fair dealing. In her appellate briefing, she presented no argument with respect to either cause of action. “Courts will ordinarily treat the appellant’s failure to raise an issue in his or her opening brief as a waiver of that challenge. [Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) We follow the accepted approach and treat these claims as abandoned.

Because we affirm summary judgment based on the first cause of action, and treat the other causes of action as abandoned, there is no basis for reversal of the award of trial court costs to defendant, as urged by plaintiff.

DISPOSITION

The judgment is affirmed. Defendant is to have its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA

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[1] All statutory references are to the Government Code unless otherwise indicated.

[2] Section 12940, subdivision (k) makes it an unlawful practice “[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”