Singer v. Spelling Television

Filed 5/2/07 Singer v. Spelling Television 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Victor Person, Judge. Affirmed.

Craig T. Barnes for Plaintiff and Appellant.

Morgan, Lewis & Bockius, LLP, Julie E. Liebenberg; and Nicole A-J. Gustafson for Defendants and Respondents Spelling Television, Inc. and North Shore Productions, Inc.

Joseph B. Scudiero and Scott A. Bishop for Defendants and Respondents SCIE, LLC and Manpay, LLC.

_____________________________________________

The trial court granted defendants motion for summary judgment in this action for employment discrimination based on religion. We conclude defendants have shown plaintiff cannot establish a prima facie case of discrimination and, even if he could, he cannot defeat defendants evidence of legitimate, nonretaliatory reasons for his termination.

FACTS AND PROCEEDINGS BELOW

After eight seasons George Singer was laid off from his employment as a grip on the television show 7th Heaven, the story of a Christian minister and his family. Singer, who identifies himself as a born-again Christian, worked as a grip on the 7th Heaven set from 1996 to August 2004. He was laid off ostensibly because he was often late for work, was not a team player, and was insubordinate. Singer maintains the true reason he was let go was, ironically, in retaliation for complaints about religious harassment he made to his immediate supervisors and those persons fears he would take his complaints to higher levels of management.

Through his discovery responses Singer produced the following evidence of conduct he considered religious harassment over the more than eight years he worked on the show. Singer heard a coworker refer to another coworker as a fucking Jew. On another occasion a coworker who was reading a sexually-oriented magazine told Singer he should not be reading his Bible at work. At numerous times other workers on the set used evil profanity. Singer complained about these incidents to his supervisors in April and May 2004.

Notwithstanding these complaints, Singer was rehired for the ninth season of the show. After beginning work on the ninth season Singer was laid off in August 2004 and not rehired.

Singer brought this action alleging discrimination, including harassment, because of his religion, failure to accommodate his religious practices, retaliation for complaining of religious harassment, wrongful termination in violation of public policy and failure to prevent religious discrimination.

The trial court granted the defendants motions for summary judgment as to all causes of action. Singer filed a timely notice of appeal from the final judgments. He limits his appeal to the contentions the trial court erred in granting summary judgment on his causes of action for retaliation and failure to prevent retaliation. We find no error in the trial courts rulings and affirm the judgments.

DISCUSSION

When the moving party is the defendant it must show the plaintiff cannot establish one or more elements of the cause of action or there is a complete defense.[1] The defendant does this either through evidence which conclusively negates an element of the plaintiffs cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence.[2] Only if the defendant meets its burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense.[3]

In urging the existence or nonexistence of a triable issue of material fact a party is not confined to its own evidence but may also rely on the evidence submitted by the opponent.[4] In construing the evidence the moving partys showing is strictly scrutin[ized] while the opposing partys showing is viewed liberally.[5] Any doubts about whether the motion should be granted should be resolved in favor of the party opposing the motion.[6]

We review the trial courts summary judgment ruling de novo to determine whether the moving party met its burden of showing there is no triable issue as to any material fact and that it is entitled to judgment as a matter of law.[7]

It is an unlawful employment practice [f]or any employer . . . or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the Fair Employment and Housing Act (FEHA)].[8] Among the practices FEHA forbids is harassment because of religious creed.[9]

In order for Singer to make out a prima facie case of retaliation based on opposition to an unlawful employment practice he must be able to show (1) he opposed an unlawful practice, (2) his employer subjected him to an adverse employment action, and (3) a causal link exists between his opposition to the unlawful practice and the adverse employment action.[10]

Defendants do not dispute being laid off from a job is an adverse employment action. They do contend, however, Singer cannot establish the two other prongs of a retaliation cause of action. We agree.

It is well established a claim of retaliation may be based on the employees complaints to a supervisor about conduct the employee reasonably believes to be discriminatory.[11] This rule applies even if a government agency or a court later determines the conduct complained of was not actually a violation of the FEHA so long as the employee reasonably and in good faith believed the conduct was unlawful.[12]

In the context of alleged religious discrimination, we do not make a determination about the verity of Singers religious beliefs, e.g., whether profanity is a sin.[13] Our inquiry is limited to the question whether a reasonable person could believe the conduct Singer complained about constituted harassment because of religion.

We conclude no reasonable person would believe the incidents Singer complained about constituted harassment because of religious creed. Neither the Jew remark nor the profanity was directed at Singer and Singers discovery responses provided no evidence the person making the Jew remark, or the persons uttering the profanity, knew Singers religious beliefs or knew their remarks would offend his religious tenets. Nor would a reasonable person believe that by reporting the isolated Jew remark he was opposing the harassment of a Jewish worker. Similarly, a reasonable person would not believe a coworkers isolated comment the Bible should not be read at work constituted harassment because of religion. Our Supreme Court has held a person in a workplace is expected to know the difference between harassment and course and vulgar language or conduct that merely offends.[14] A reasonable person, upon hearing the remarks Singer described, might take them as rude, uncouth or uncivil but not as harassment because of religion.

Assuming, however, Singer reasonably could have believed he was complaining to his superiors about religious harassment he cannot show a causal connection between his complaints and his termination.

Singer relies entirely on the proximity between his complaints to management in March and May 2004 and his lay off in August 2004 to raise an inference his complaints caused his lay off.[15] Singers reliance is misplaced for two reasons.

Singer neglects to mention he complained about profanity on the set twice before, in 1987 and 2001, and each time was rehired for the following season of the show. Likewise, notwithstanding his complaints in March and May 2004, Singer was rehired for the next season of the show. Intervening events generally break the causal chain between the employees complaints and the employees dismissal,[16]especially where, as here, the intervening event is a positive one from the employees perspective.[17]

The causal connection is also defeated by the fact Singer was laid off by the same person who hired him, the key grip Bob West. West hired Singer for the first season of the show in 1996 and rehired him for every season thereafter including the ninth season when Singer was laid off. When the employee is hired and fired by the same person a strong inference arises there was no retaliatory motive.[18]

Even if Singer could establish a prima facie case of retaliation, summary judgment for defendants was proper because Singer failed to present substantial responsive evidence defendants legitimate, nonretaliatory reasons for his lay off were pretextual.

West, Singers immediate supervisor, testified he let Singer go for a combination of a lot of reasons which had continued over a number of years. According to Wests testimony, Singer had a tendency to run late in the morning [and] even more of a tendency to run late after lunch. . . . He would come in five minutes late, ten minutes late, 15 minutes late. Being on time to the set, West added, is something thats really important. Singer did not get along with the other grips and wasnt a team player, West testified. West stated he had received numerous complaints about Singer from the present as well as past grip crews. The last incident occurred when Singer became upset over criticism by the camera operator about the way he had lit a set. West testified, George turned around on this ladder, looked at me and he says, This is bullshit. Im not going to put up with this. This is wrong. Singer then came down the ladder and started yelling at West. This incident took place while the actors, including some children, were on the set finding their marks and getting ready for a take. George was very upset, West testified. I didnt know what to do with him. And when I thought about it later that day . . . I thought I have to make a change with George.

Singer admitted being late to work in the morning and late returning from lunch about four times and he acknowledged this meant other grips had to cover his work. He also concedes he was not a team player, and he testified he did not recall the incident on the ladder. He contends, however, defendants cite these incidents as grounds for his termination as a pretext to cover up their true retaliatory motive.

As evidence of defendants pretext Singer points to the fact West originally testified at his deposition he terminated Singer because the production was downsizing. Later in the same deposition session West changed his testimony and stated: Georges layoff was about his behavior and the complaints that Ive stated in the past. It wasnt about downsizing. Singer also argues Wests team player rationale is not plausible because West testified Singers lack of cooperation with his fellow workers had been a problem since he first hired Singer nine years ago. If his inability to get along and cooperate with his fellow grips was a reason for his termination it is not credible, Singer argues, West would have put up with this behavior for nine years when he could have fired Singer at any time along the way. As a final point, Singer notes West did not include the bullshit incident in the list of reasons he wrote following Singers termination.

Summary judgment for the employer is appropriate where, given the strength of the employers showing of legitimate, nondiscriminatory reasons for the employees termination any countervailing circumstantial evidence of discriminatory motive is too weak to raise a rational inference that discrimination occurred.[19] Such is the case here.

West never testified downsizing was the only reason why Singer was terminated. He testified one of the reasons that Mr. Singer was laid off was due to lack of work from downsizing. Singers performance problems were the other reasons he decided to let Singer go. West later clarified his testimony regarding downsizing. He stated he told Singers union Singer was laid off due to downsizing so that Singer would go on the list of people available for work. Thus the evidence suggests the downsizing explanation was not a nefarious pretext but an effort to help Singer find new employment. In any case Wests downsizing explanation is not inconsistent with the other reasons given for Singers termination. This is not a case like Smith v. International Brotherhood of Electrical Workers in which the employers first explanation suggested age and disability discrimination then, when litigation began, the employer changed its reason to one which did not relate to age or disability.[20]

The fact Singer was an at-will employee who could have been terminated for poor performance prior to his complaints does not controvert defendants legitimate reasons for his termination. The fact West continued to make an effort with Singer is not evidence of unlawful retaliation. It is, at most, evidence West was willing to work with Singer, perhaps for too long.[21]

No reasonable juror could conclude Wests failure to mention the bullshit incident when writing down his original list of reasons for Singers termination is evidence West terminated Singer in retaliation for his complaints. The most that can be inferred from this evidence is the incident did not happen the way West later remembered it or West initially did not assign the incident the importance he assigned it upon later reflection.

For the reasons explained above we conclude defendants were entitled to summary judgment.[22]

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J. WOODS, J.

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[1] Code of Civil Procedure section 437c, subdivision (p)(2).

[2]Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.

[3]Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th at page 850.

[4] In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the [admissible] evidence set forth in the papers . . . . (Code Civ. Proc., 437c, subd. (c).)

[5]Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.

[6]Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.

[7]Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.

[8] Government Code section 12940, subdivision (h).

[9] Government Code section 12940, subdivision (a).

[10]Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. (Yanowitz)

[11]Yanowitz, supra, 36 Cal.4th at page 1043.

[12]Yanowitz, supra, 36 Cal.4th at page 1043.

[13]California Fair Employment & Housing Com. v Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1013.

[14]Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at page 295.

[15] See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.

[16]Tenkku v. Normandy Bank (8th Cir. 2003) 348 F.3d 737, 742.

[17]Manatt v. Bank of America (9th Cir. 2003) 339 F.3d 792, 802 [between the time of the employees complaint and the employers adverse employment action the employer gave the employee a pay raise and a prestigious assignment].

[18]Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1158.

[19]Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 362.

[20]Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1656.

[21] Compare Brown v. LKL Associates, Inc. (D. Utah 2005) 403 F.Supp.2d 1044, 1053-1054 [employers putting up with employees poor performance when it could have fired her does not controvert employers legitimate reasons for her eventual termination].

[22] Singers cause of action for failure to prevent retaliation (Gov. Code 12940, subd. (k)) cannot stand in light of our affirmance of the trial courts ruling on the retaliation claim itself. (Carter v California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)