Tuason v. Regents

Filed 4/19/07 Tuason v. Regents CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Esterina Tuason's lengthy employment in the University of California's University Office of Education Abroad Program (UOEAP) ended with a medical separation on May 15, 2003. She sued the Regents of the University of California and her supervisors on various employment discrimination and wrongful termination theories. The trial court granted respondents' motion for summary judgment. She contends the trial court erred because there are disputed issues of fact. We affirm.

Facts

Appellant worked for the University of California in various administrative support positions for 19 years, the last 8 of them at the UOEAP. Respondent Steven Hollander became her direct supervisor in January 2000. Before that time, appellant consistently received good performance evaluations, promotions and merit pay increases. Appellant alleges that Hollander discriminated against, harassed and retaliated against her on the basis of her gender, race/national origin (Asian-American/Filipino) and disability (work-related stress), because he unfairly criticized her work, refused to reclassify her position or give her a higher salary, failed to hire her for either of two new positions he created, moved her to an undesirable office, transferred her position from human resources to the finance department, and terminated her after she took a leave of absence due to stress.

Reclassifications and Salary Increases

In late 1998, shortly after Hollander began working with the UOEAP, a long-term employee of the office retired. Hollander assigned to appellant two of the retiring employee's duties: supervising the mail room and reception areas, and coordinating office moves. Appellant asked Hollander to reclassify her position in light of the new duties. He did not because they did not significantly change appellant's job and because appellant was already paid a higher salary than was the employee who retired. However, Hollander reclassified appellant's position three times between October 1999 and January 2001. As a result, appellant's salary increased by nearly 25 percent, from about $3,200 per month to $4,100 per month.

In connection with the February 2000 pay increase, Hollander advised appellant to take university classes to learn more human resources functions. Appellant complained that she should have received a bigger raise and that her present position should have been reclassified to the higher level of Management Services Officer (MSO). Hollander's response was, appellant testified, "something to the effect, it wasn't because my hair wasn't blonde." Appellant never took the classes because she did not feel that the specific task Hollander wanted to train her to perform "was a duty of the

department . . . ." She did not want to learn the new responsibilities as long as she was working at the department level.

The Transfer Decision

In March 2002, Hollander decided to transfer appellant's position to the UOEAP finance department rather than having her train to perform more human resources tasks. The transfer would have allowed appellant to continue performing her same job duties with a different direct supervisor. Appellant did not respond when Hollander asked to meet with her to discuss the transfer. Instead, she complained about Hollander to his supervisor John Marcum. Marcum talked with Hollander about the matter and agreed with his decision. Appellant eventually met with Hollander and Alex Ramires, the director of budget and finance, to discuss the transfer. She later requested a pay increase for the new position. Hollander denied the request.

Hiring Decisions

Hollander created a new MSO position in early 2001 and held an open recruiting for the position. About 25 percent of the duties assigned to the MSO Position were duties that appellant had been performing, including supervision of the mail room and reception area and space management. The other 75 percent were tasks that appellant had not been performing. Appellant asked Hollander what the qualifications were for the position. He told appellant that he "wanted someone more professional . . . ." Hollander did not explain what he meant by that comment nor did appellant ask for an explanation. She did not apply for the job or tell Hollander she was interested in it. Hollander hired a Caucasian man for the position at a salary that was higher than appellant's. When she complained about the difference in pay, Hollander explained that the position paid more than hers because it had greater responsibilities.

In June 2002, Hollander created a Human Resource Coordinator/Principal Personnel Analyst I position (PPA I). He expected this employee would perform professional-level human resources duties and would take over his position when he retired. Appellant was not qualified for the position. Hollander hired a Caucasian woman to fill it. Appellant complained that the new employee was paid more than she was. Hollander explained that they did not perform any of the same duties.

The Office Move

In June 2001, many UOEAP employees, including appellant, moved their offices to new, additional space one floor below their prior offices. Appellant was assigned a small interior office that was outfitted with old furniture. There were some holes in the walls and it needed painting. Appellant felt humiliated by the move and concluded it was a sign that Hollander wanted to fire her.

July 2001 Letter of Concern

In July 2001, Hollander had an e-mail exchange with appellant in which he was critical of her job performance and did not approve her request to take a three-week vacation in August. In one e-mail, which he referred to as a "letter of concern," Hollander told appellant he would not approve the vacation request unless she first completed a number of outstanding assignments. He asked appellant to schedule a meeting with him to discuss these issues. She never did. Eight days later, appellant e-mailed a response in which she told Hollander that his e-mail made her feel "harassed and stressed." Later, she sent another e-mail complaining about the difference between her pay and that of other workers in the office. Appellant took a disability leave for the period of time during which she had requested vacation.

June and July 2002 E-Mail Exchange

In June 2002, as the new PPA I was about to start work and Hollander was about to retire, Hollander asked appellant to complete her July payroll duties and help the new employee get oriented before appellant transferred to the finance department. Appellant asked for a temporary reclassification and pay increase, to compensate her for the training duties. She later asked Hollander to draw up a specific training plan for her to follow with the new employee and to approve her temporary reclassification and pay raise.

Hollander denied these requests by e-mail on June 19, 2002. His response stated, "My earlier Letter of Concern to you is precisely about this kind of persistent obstructionist behavior. As your supervisor, I am explicitly telling you that a duty you must perform this coming month in a professional manner is to explain to [the new employee] what you do. Also, as for any new employee, you are to answer questions as they arise for her. If you do not perform these duties fully, I will consider it a possible act of insubordination and consider appropriate action."

Appellant went on a stress leave of absence on July 22, 2002. She never returned to work. In May 2003, she was medically separated from her employment with the UOEAP. Her appeal of that decision was denied.

During the time that she worked under Hollander's supervision, appellant never complained to him, or to anyone else, that Hollander was discriminating against her based on her race, ethnicity or gender. Hollander never made any comments to appellant about her race, ethnicity or gender. He never made any sexual advances toward her, never touched or assaulted her and never prevented her from moving or leaving a room. He did not display offensive posters, cartoons or drawings. He did not use obscene language or make disparaging comments or slurs about race or gender. Appellant also admitted that neither Marcum nor Ramires ever engaged in similar racially or sexually discriminatory conduct against her.

Standard of Review

The trial court properly grants summary judgment "only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c); see also id.,  437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden of showing the court that the plaintiff 'has not established and cannot reasonably expect to establish, a prima facie case . . . .' [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) When the defendant meets this burden, the burden shifts to the plaintiff to establish by admissible evidence that a triable issue exists. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Campanano v. California Medical Center (1995) 38 Cal.App.4th 1322, 1327.)

We independently review the trial court's order granting summary judgment, applying the same legal standard as the trial court. (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285; Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Miller v. Department of Corrections, supra, 36 Cal.4th at p. 460.)

Discussion

Harassment Based on Sex and Ethnicity

The Fair Employment and Housing Act (FEHA), Government Code section 12900, et seq., "explicitly prohibits an employer from harassing an employee on the basis of race, sex, or other specified grounds. (Gov. Code,  12940, subd. (h).)"[1] (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464.) In her first and secondcauses of action, appellant alleged that respondents harassed and discriminated against her based on her gender and her Filipino race or ethnicity. The trial court concluded respondents were entitled to judgment on these claims because, "[t]he uncontroverted evidence . . . reveals that neither defendant Hollander nor any other University employee engaged in any unwanted sexual advances, verbal, visual or physical harassment of any kind towards plaintiff, nor was her ancestry or race ever referenced by anyone. The conduct plaintiff complains of involved personnel decision[s] made by Hollander . . . . Such actions do not constitute harassment, though they may be found to be discriminatory if based on improper motive. There is no evidence of such motive in the evidence presented . . . ."

Appellant contends there are triable issues of fact because: (a) Hollander said that his failure to give her a bigger pay raise "wasn't because her hair wasn't blonde[;]" (b) he said he wanted someone "professional" for a new position; (c) he criticized appellant's work in e-mails; (d) he assigned appellant a small office; and (e) he decided to transfer her position to the finance department. This is insufficient.

Harassment within the meaning of the FEHA includes unwanted sexual advances, unwanted touching and other forms of physical assault, the use of slurs or obscene or derogatory language, and "visual" harassment in the form of derogatory posters, cartoons and other visually offensive materials. (Etter v. Veriflo Corp., supra, 67 Cal.App.4th at p. 464; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63-64; Cal. Code Regs., tit. 2,  7287.6, subd. (b)(1).) Appellant presented no evidence that Hollander or any other individual respondent subjected her to such conduct. The alleged harassment involved managerial or supervisory acts such as criticizing appellant's job performance, moving her to a particular office, or transferring her position to another supervisor's department. These actions do not constitute harassment under FEHA as a matter of law. "[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluation, 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." (Janken, v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 64-65.)

Discrimination and Retaliation

1. Statute of Limitations

Appellant alleged that these same employment decisions discriminated against her on the basis of her gender and ethnicity, in violation of FEHA. The trial court concluded that four of her claims were time-barred because the employment actions occurred more than one year before appellant filed her complaint with the Department of Fair Employment and Housing (DFEH). Appellant contends the trial court erred because the continuing violation doctrine applies. She is incorrect.

An employee must file an administrative complaint with the DFEH before filling a civil action for damages under the FEHA. ( 12965, subd. (b).) The DFEH complaint must be filed within one year of the alleged FEHA violation. ( 12960.) Under the continuing violation doctrine, "a complaint arising under FEHA is timely if any of the discriminatory practices continues into the limitations period." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349.) In determining whether an employer's conduct over a period of time is a continuing violation, we consider whether "the employer's actions are (1) sufficiently similar in kind . . . , (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1041.) An employer's actions are sufficiently "permanent" to start the limitations period running when "an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation" to end discriminatory practices or employment actions "will be futile." (Richards v. CH2M Hill, Inc, supra, 26 Cal.4th at p. 832.)

Appellant filed her DFEH complaint on November 4, 2002. Four of the discriminatory employment actions she alleges became permanent more than one year earlier. The February 2000 reclassification and merit pay increase became permanent that same month, when Hollander failed to respond to appellant's complaints that both were inadequate. The failure to hire appellant for the MSO position became permanent when the position was filled by someone else, in April 2001. The office move occurred in June 2001 and never changed. Hollander sent appellant the "letter of concern" e-mail in July 2001 and did not thereafter withdraw his criticisms or change his decision to deny appellant's vacation request. These actions became permanent at the very latest, when appellant took her three week disability leave in August 2001. Appellant's discrimination claims with respect to these actions are time-barred because she filed her DFEH complaint more than one year after they became permanent. ( 12960, 12965, subd. (b).)

2. Legitimate, Nondiscriminatory Actions

Appellant did not demonstrate the existence of a triable issue of fact on the question whether she was discriminated against in the employment actions that occurred within the limitation period: the decisions to transfer her position to the finance department, to hire someone else for the newly-created PPA I position, and to send the June and July e-mails concerning appellant's obligation to train the person hired for that position. As the trial court correctly concluded, appellant presented no evidence these actions were based on race or gender bias.

To establish a prima facie case of discrimination in violation of FEHA, appellant must "provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action . . . and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If appellant makes out the prima facie case, respondents then bear the burden to demonstrate a legitimate, nondiscriminatory reason for the employment action. (Id. at pp. 355-356.) Once that showing has been made, appellant can prevail on summary judgment only "by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Id. at p.357.)

Here, the trial court correctly concluded that respondents demonstrated legitimate, nondiscriminatory reasons for each employment action taken with respect to appellant. Transferring appellant's position to the finance department was consistent with the fact that her job duties focused on salary transfers and were therefore more closely related to finance and accounting than to human resources. Appellant was not hired for the PPA I position because she did not apply for it and lacked the education and training needed to perform its duties. The June and July 2002 e-mails concerned appellant's job duties and performance, specifically her duty to train the newly hired PPA I. They contain no reference to appellant's gender or ethnicity, nor is there any other evidence indicating Hollander sent them for an improper purpose. We conclude, as did the trial court, that appellant failed to raise a triable issue of fact that these actions were the product of gender or racial bias.

Retaliation

Appellant's eighth cause of action alleges that respondents retaliated against her for complaining about "pay inequities between herself and male and non-Asian counterparts," in violation of section 12940, subdivision (h). The trial court granted respondents' judgment on this cause of action, concluding that appellant "has not presented evidence that any of these actions were motivated by a discriminatory or retaliatory motive." Appellant contends she raised an issue of fact on this claim because the adverse employment actions described above occurred in close proximity to her complaints about inadequate pay. We are not persuaded.

"To establish a prima facie case of retaliation, the 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 between the protected activity and the employer's 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." (Akers v. County of San Diego(2002) 95 Cal.App.4th 1441, 1453; see also California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018.)

Filing or threatening to file a discrimination complaint is a protected activity. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp., supra, 122 Cal.App.4th at p. 1019.) "Informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger the prohibition against retaliation." (Id. at p. 1018.) Appellant first complained about sex and race discrimination in July 2002, after she'd left work on a stress-related leave of absence. Before that time, appellant complained that her pay and classification were inadequate but these complaints are not protected activities because it is undisputed that appellant never told respondents she was being treated differently or unfairly because of her gender or race.

The July 2002 letter could form the basis for a prima facie case of retaliation if appellant presented evidence showing a causal link between the letter and her termination. She did not. It is undisputed that appellant left work on a stress-related leave of absence and remained medically unable to return to work.[2] She was medically separated after she exhausted all of her leave and was unable to return to work. Moreover, appellant's inability to perform her job is a legitimate, nondiscriminatory reason for terminating her employment. Appellant presented no evidence creating an issue of fact on question whether that reason was a pretext. (Id. at p. 1020.)

Equal Pay

Appellant contends the Regents of the University of California violated the federal and state equal pay acts by paying her less than male employees who performed equal or like duties. (29 U.S.C.A.  206, subd. (d); Lab. Code,  1197.5.) As the trial court correctly concluded, however, the undisputed facts demonstrate that the employees to whom appellant compares herself either performed different job duties or were paid less money than appellant.

Civil Rights Conspiracy

Appellant's sixth and seventh causes of action allege that the individual respondents conspired with one another to deprive appellant of the equal protection of the laws by refusing to promote her and to pay her on an equal scale with her male, non-Asian counterparts and that each respondent intentionally failed to protect her from the wrongful conduct of the remaining respondents. A civil conspiracy requires, at a minimum, an agreement among defendants to commit a tort. If the conduct complained of does not amount to a tort, then an agreement to engage in that conduct is not a civil conspiracy. (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511; Unruh v. Truck Ins. Exchange (1972) 7 Cal.3d 616, 631.) Appellant's conspiracy claim fails for this reason. She did not show a triable issue on the underlying FEHA claims so her conspiracy claim fails as a matter of law.

Intentional Infliction of Emotional Distress

The trial court properly granted respondents' motion with respect to her cause of action for intentional infliction of emotional distress because the conduct described above is not extreme or outrageous enough, as a matter of law, support a claim for intentional infliction of emotional distress. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, 80; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155.)

Wrongful Termination

Appellant's ninth cause of action alleged that the Regents terminated her employment in violation of public policy because their conduct toward her constituted "sex discrimination, discrimination based on race and national origin, discrimination based upon disability, creation of a hostile work environment, [and] harassment . . . ." The trial court sustained the Regents' demurrer to this cause of action without leave to amend because it concluded that, as a matter of law, this common law cause of action cannot be alleged against a public entity such as the Regents. We agree.

As the court explained in Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, " 'Except as otherwise provided by statute: []  (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' ([Gov. Code,]  815, subd. (a).) The Regents is a public entity. ([Gov. Code,]  811.2.) . . .  [] Because the 'classic Tameny [v. Atlantic Richfield Co. (1980) 27 Cal.3d 167] cause of action' is a common law, judicially created tort [citations] and not authorized by statute, it is not properly asserted against the Regents." (Id. at p. 909.)

Conclusion

The judgment is affirmed. Costs to respondents.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Denise DeBellefeuille, Judge

Superior Court County of Santa Barbara

______________________________

Law Office of Robert M. Baskin, Christopher A. Fortunati, for Appellant.

Karen K. Peabody; Nye, Peabody & Stirling, for Respondents.

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

[2]Appellant testified in her deposition that her medical providers told her she needed to remain off work and never advised her that she could return to work. Appellant also testified at her deposition that she had not returned to work anywhere and did not "feel ready" to apply for another job. In light of this testimony, the trial court properly ignored her declaration which stated: "I would have returned to work, if Defendants would have accommodated my needs, and not transferred me to finance." (Prillman v. United Airlines (1997) 53 Cal.App.4th 935, 961.)