Levsey v. Callegus Mun. Water Dist.

Filed 5/2/07 Levsey v. Callegus Mun. Water Dist. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Salwa Levsey appeals a summary judgment granted in favor of respondent Callegus Municipal Water District (Callegus) on her employment discrimination action under the California Fair Employment and Housing Act (FEHA). (Gov. Code,  12940 et seq.)[1] Born in Egypt and of Egyptian ethnic descent, she asserted causes of action for ethnic discrimination and hostile work environment against Callegus.[2] The trial court ruled that Levsey did not suffer an adverse employment action and that there was no evidence of harassment sufficiently severe and pervasive to constitute a hostile work environment. We agree and affirm.

FACTS

We summarize the evidence in the light most favorable to Levsey. (Morris v. De La Torre (2005) 36 Cal.4th 260, 265.) In 1997, Callegus hired Levsey to work in its finance department. All of Levsey's performance reviews were positive throughout her employment with Callegus. In 2001, Callegus hired Monica Boyd as a receptionist. Boyd's duties included assisting and supporting the finance department. The two employees were not personally compatible. Previously, Levsey had no interpersonal problems at work.

In July 2001, Levsey asked Boyd to do some filing, and Boyd responded, "I'm not your little Oriental girl. I'm not going to be doing everything for you." Levsey identified the prior receptionist as Japanese. Levsey did not report the comment at the time.

Supervisors were aware of tension between Levsey and Boyd, but did not yet know about Boyd's ethnic remark. In a meeting in late September of 2001, the supervisors urged Levsey and Boyd to air their personal differences over lunch. In a meeting in late September of 2001. Levsey and Boyd did have a lunch, at which Boyd read from a list stating that Levsey was "rude," "mean," "nasty," and "impolite," and stating that "[y]ou people are horrible." Because of the proximity to 9/11, Levsey understood the remark to mean that Arabs are mean people, and that Levsey was just like them. Levsey and Boyd did not resolve their differences at the lunch, but did agree to minimize contact with each other by communicating through email and in writing whenever possible. From September of 2001 through September 2002, relations between Levsey and Boyd were cordial, with "silent friction."

Racial tension resurfaced in 2002. In a staff meeting Boyd mocked Levsey's pronunciation of the word "shit," as "sheet," and laughed. Supervisor Mary Jo Fisher was present, and told Levsey that if it bothered Boyd that Levsey says "shit" in the workplace then Levsey should say the word in Arabic.

In a September 23, 2002, working meeting with their supervisors, Boyd complained about Levsey and screamed that nobody liked Levsey or wanted to work with her. Levsey was surprised and asked what specifically offended Boyd. Boyd responded that she felt a "bad vibe" from Levsey. In response, Levsey complained that Boyd "mocks [her]" and "puts [her] down," but she did not mention the ethnic comments. Levsey apologized and Boyd said she would try to work with Levsey. At the end of the meeting, Levsey understood that the issues between herself and Boyd had been resolved, and that she and Boyd would move forward and work together. Three days later, Levsey wrote a letter to Boyd, seeking to improve their relations.

On September 27, 2002, Boyd formally complained that Levsey treated her with disrespect. Levsey received a written reprimand. On September 28, 2002, Levsey submitted a written response, in which she reported the "Oriental girl" comment (from July, 2001), and reported that Boyd "makes fun of my accent and cultural differences in the presence of others." This was the first time Levsey told her supervisor that Boyd made fun of Levsey's accent and cultural differences. Levsey may have mentioned the "I'm not your little Oriental girl" comment to her supervisor previously, but in deposition neither she nor her supervisor could identify when that would have been.

Levsey's supervisor forwarded Levsey's September 28 response to the human resources manager. Levsey's supervisor told Levsey to report any further incidents. Within a week, Boyd mocked Levsey's pronunciation of "Hurley & Company." Levsey told her supervisor about the "Hurley & Company" incident.

On October 15, 2002, Levsey made a typing error and said "shit" in the presence of Boyd and another employee. Boyd mocked Levsey's pronunciation of the word "shit" and stated, "Oh, she can't even type," and "[r]emember what she grew up with. They didn't have typewriters where she grew up." Boyd and the co-employee laughed. Levsey reported this incident to the human resources director, stating that Boyd was mocking her and putting her down again.

On October 24, 2002, management took responsive measures. Levsey's supervisor reprimanded Boyd for mocking Levsey. There were no further mocking incidents with Boyd.

In October of 2002, while Levsey was at Callegus' car wash, two Callegus field workers said, "Why don't you get the fuck out of the country?" Levsey explained she is a refugee, she does not condone what was done on September 11, she is a Christian and she is not a Muslim. Levsey said, "they also keep on bombing our churches over there." Levsey also described discrimination by Muslims against Christians in Egypt. Levsey testified that the field workers responded by saying, "Really? We didn't know that," and left her alone after that. While they were talking, the supervisor of the field workers approached and asked what was going on. Levsey told him everything was fine and that they were just talking. The group dispersed. Levsey reported the incident to her supervisor, who reported it to the human resources director. Levsey would not disclose the names of the field workers, but may have indirectly acknowledged which employees they were. Levsey told the human resources director she wanted a general statement made to employees and did not want any further action to be taken. The human resources director did make a general statement to employees.

In December of 2002, Boyd made another ethnic remark to Levsey at a holiday luncheon. Levsey was on medical leave at the time for ankle surgery, but attended the holiday luncheon. Levsey was preparing food with her hands and another co-worker teased her about this. Boyd interjected, "What do you expect, they eat with their hands in her country." Levsey did not report this remark to management.

On January 6, 2003, Levsey returned from medical leave and complained that Boyd was falsely accusing Levsey of making errors in the office. That same day, the general manager moved Boyd to a different department to minimize contact, and transferred another employee to take over Boyd's finance duties. Levsey continued to complain about uncooperative conduct by Boyd. The general manager agreed not to have Boyd perform any finance duties so that Levsey would not have to work with Boyd.

From March 2003 forward, Levsey and Boyd did not work on any projects together. They worked in two different parts of the office and had very little contact. Levsey saw Boyd in passing when she picked up her mail or when she sent a fax. Levsey had no complaints of discriminatory conduct in March or April of 2003.

On March 17, 2003, Boyd filed a written sexual harassment complaint against Levsey. Levsey contends this complaint was malicious and false. In it, Boyd claimed that Levsey had touched Boyd's thighs in August of 2002. The human resources director provided a copy of the complaint to Levsey. On March 19, 2003, Levsey submitted a written response, in which she described the continuing animosity between Boyd and herself, and also complained that there had not been a formal investigation in response to Levsey's September 2002 complaint of ethnic harassment. Callegus immediately commenced a formal investigation of the complaints of both parties.

Levsey went out on initial stress leave on March 21, 2003. The evidence does not suggest that her job was imperiled. While she was out, the general manager called her to tell her he wanted her to come back, that she had her job at the district until retirement, that she could finish her tenure at the district, and that the district needed her.

On March 24, 2003, Callegus provided a draft report of its investigation to Levsey. The draft report was inconclusive. It recommended communication counseling for both parties, one year probation for each, and termination of both in the event of further complaints "without regard to who was at fault . . . ." Levsey responded to the draft with a letter in which she thanked Callegus' employees for their effort, time and professional conduct in the investigation, and expressed her disagreement with the recommended resolution. On March 25, 2003, Callegus issued its final report. The final report did not recommend termination regardless of fault in the event of further complaints, but did recommend that both employees be required to attend communication seminars, be placed on one year probation, and be warned that "if friction and animosity between the two individuals continues unabated, and if the District is unable to determine which of the two persons instigates the incidents, the District may opt to terminate both employees."

The final report determined that Boyd's complaint of sexual harassment could not be corroborated by a third party, and that there was no evidence that friction between Boyd and Levsey was ethnically or racially based. The report stated that "no conclusion can be drawn as to who was right or wrong," and "[a]ll of the grievances outlined relate to the inability of Ms. Boyd and Ms. Levsey to communicate in an effective and professional manner."

The final report with its warnings was relayed to both employees on about April 1, 2003. Levsey interpreted the final report as a threat that she would be terminated if she complained further about Boyd's harassment. It is undisputed that after warnings were given on about April 1, 2003, the human resources director did not receive any complaints by Levsey regarding discrimination by Boyd.

On May 21, 2003, Levsey again left on stress leave and, aside from helping with payroll shortly thereafter, she did not return. Levsey complains that her job duties had been reduced, and that her work conditions changed between the end of March 2003 and May 20, 2003. Callegus had hired a new head of finance on March 5, 2003, replacing Levsey's former supervisor. This new head of finance did institute some changes that affected Levsey. Levsey was removed as an authorized signer on one investment account. This improved internal controls by making the second signer a manager and not a person who prepared the form. Levsey continued to sign on the account as a preparer, but not as the authorized second signer. Levsey continued as an authorized signer on Callegus' remaining seven investment accounts. Also, the new head of finance transferred the payroll function from finance to human resources, and finance became more involved in general ledger analysis. This change became official on May 20, 2003. The new head of finance also announced that all employees could not take "comp" time and would be required to receive pay for overtime. There was no other evidence of change in the conditions of Levsey's employment.

DISCUSSION

We review an order granting summary judgment de novo. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) Viewing the evidence in the light most favorable to Levsey, we determine whether any genuine issue of material fact exists. (Morris v. De La Torre, supra, 36 Cal.4th at p. 265.)

The FEHA prohibits an employer from discriminating against or harassing an employee on the basis of his or her race or national origin. ( 12940, subds. (a) & (j).) "[N]ot every utterance of a racial slur in the workplace violates the FEHA or Title VII." (Aguilar v. Avis Rent A Car Systems, Inc. (2000) 21 Cal.4th 121, 130.)

Ethnic Discrimination

It is unlawful to discriminate against an employee, on the basis of race or national origin, in the "terms, conditions, or privileges of [their] employment." ( 12940, subd. (a).) To prove discrimination, "the plaintiff must provide evidence that (1) [she] was a member of a protected class, (2) [she] . . . was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz v. BechtelNational, Inc. (2000) 24 Cal.4th 317, 355.)

Here, Levsey's case falls short on the third and fourth elements: adverse employment action and discriminatory motive. The first two elements were satisfied. Callegus does not dispute that Levsey belongs to an ethnic minority and that she was performing competently in the position she held. However, Levsey experienced only minor changes to her job duties which were not adverse, and no circumstances suggest discriminatory motive.

An adverse employment action is one that materially affects the terms and conditions of employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1036, 1054.) "A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." (Akers v. County of San Diego(2002) 95 Cal.App.4th 1441, 1455.) The change must be "reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." (Yanowitz, at p. 1054.) The standard is objective. "Minor 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 employee's job performance or prospects for advancement or promotion falls within the reach of " the FEHA. (Id. at pp. 1054-1055.) We do not doubt that Levsey was genuinely unhappy with the changes in the finance department. However, it would be unreasonable to conclude that those changes were likely to impair Levsey's job performance or prospects for advancement or promotion.

There is also insufficient evidence to raise a triable issue of fact on the issue of discriminatory motive. No evidence links Boyd's racial hostility with the changes implemented by the new head of finance. Furthermore, Callegus offered sufficient evidence to demonstrate that the changes in the finance department were made for legitimate, nondiscriminatory reasons, and Levsey did not offer evidence that the proffered reasons were pretextual, or offer other evidence of discriminatory motive. (Guz v. BechtelNational, Inc., supra, 24 Cal.4th at p. 356.) The plaintiff must do more than simply show the employer's decision was wrong, mistaken, or unwise. (McRae v. Dept. of Corrections (2006) 142 Cal.App.4th 377, 389.) Levsey points to the temporal proximity between the finance department changes and the issuance of the investigation report. To show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer's motives. (Vasquez v. County of Los Angeles(9th Cir. 2003) 349 F.3d 634, 642.) [3] Levsey has not done so here.

Hostile Work Environment

It is unlawful for an employer to harass an employee, on the basis of race or national origin. ( 12940, subd. (j).) "Harassment" includes "[v]erbal harassment, e.g., epithets, derogatory comments or slurson a basis enumerated in the Act." (Cal. Code Regs., tit. 2,  7287.6, subd. (b)(1)(A).) To support a claim under the FEHA, the harassment must be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment . . . ." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

The derogatory comments in this case were made by non-supervisory co-employees. "Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." ( 12940, subd. (j)(1)) There is no right to recovery for failure to investigate where no harassment actually occurred. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)

To determine whether conduct is sufficiently severe or pervasive to constitute a hostile work environment, the court looks at all the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. (Harris v. Forklift Systems (1993) 510 U.S. 17, 23.) "The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended." (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal. App. 3d at pp. 609-610.) Properly applied, these standards will filter out complaints based on ordinary tribulations, occasional teasing, and utterances that engender offensive feelings. (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788; Etter v. Veriflo (1998) 67 Cal.App.4th 457, 464.)

The FEHA is not a general civility code. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.) An employee "cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." (Id. at p. 283.) "[W]hen the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions." (Id. at p. 284.) To be actionable, the working environment must be both objectively and subjectively offensive. (Ibid.) A hostile environment is not created by sporadic use of abusive language, gender-related jokes, and occasional teasing. (Faragher v. City of Boca Raton, supra, 524 U.S. at p. 788.)

In Vasquez v. County of Los Angeles, supra, 349 F.3d 634, derogatory racial comments by a senior co-worker were insufficient to constitute a hostile work environment. The co-worker said Vasquez had a "'typical Hispanic macho attitude'" and should take a job in the field because "'Hispanics do well in the field.'" (Id. at p. 638.) Vasquez' supervisor later reprimanded and transferred Vasquez. The abusive co-worker did not make the transfer decision, there was no evidence that the supervisor's proffered reasons for the transfer were pretextual, and the co-worker's conduct was not sufficiently severe and pervasive to violate Title VII. Here too, Boyd was not a decision maker and her ethnic comments, while offensive, were not severe and pervasive.

In Manatt v. Bank of America, N.A. (9th Cir. 2003) 339 F.3d 792, an American citizen of Chinese descent suffered negative racial comments and gestures by co-workers and a supervisor, but she could not prevail on her hostile work environment claim as a matter of law because her employer's response was effective. Manatt's co-workers used the words "'China man,'" and "'rickshaw'" in jokes, pulled their eyes back with their fingers, mocked Manatt's pronunciation of words, and said, "'China woman get your butt over here.'" (Id. at p. 795.) Manatt's supervisor said, "'I've had the worst kind of trouble with your countrymen.'" (Ibid.) When Manatt complained, the supervisor held a staff meeting and the comments and jokes stopped. (Id. at p. 796.) Manatt was later transferred but could not show the proffered reasons for the transfer were pretextual. As in this case, "the conduct of Manatt's co-workers and supervisor--while offensive and inappropriate--did not so pollute the workplace that it altered the conditions of her employment." (Id. at p. 798.)

This court held in Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, that one ethnic slur by plaintiff's supervisor, combined with other evidence of verbal abuse, could sustain a claim for hostile work environment based on Filipino ancestry. This case is not like Dee because in this case there is no evidence of supervisorial misconduct. In Dee we observed that "[i]n many cases, a single offensive act by a coemployee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different." (Id. at p. 36.)

Where the abuse is by co-workers only, and the employer responds promptly and effectively, the result is different. In Woodland v. Joseph T. Ryerson & Sons, Inc. (8th Cir. 2002) 302 F.3d 839, an African American worker's hostile work environment claim failed under Title VII and Minnesota state anti-discrimination law because the employer took effective measures in response to the incidents of racial harassment that were reported, and the behavior stopped. The court found that "the sporadic racially-motivated misconduct by [plaintiff's] co-workers was "'neither severe or pervasive enough to create a hostile work environment.'" (Id. at p. 844.)

In this case, Boyd, a receptionist, made sporadic racial remarks to Levsey, a senior financial analyst. Boyd's remarks were utterances of ethnic epithets which engendered offensive feelings in Levsey, but were not sufficient to establish a hostile work environment. (Faragher v. City of Boca Raton, supra, 524 U.S. at p. 787.) "'[S]imple teasing,' [citation], offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" (Id. at p. 788.)

The absence of any triable issue of fact on the hostile environment claim is fatal to the constructive discharge claim. "Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job." (Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 930.) To constitute constructive discharge, the "conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246, overruled on other grounds in Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498.)

Even if the harassment were sufficiently severe and pervasive to support a claim against Boyd, the employer's liability runs only from the time it knew or should have known about the conduct and failed to stop it. (Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1192.) Here, Callegus effectively removed Boyd from Levsey's work environment within a month of Levsey's first report of offensive conduct. The harassment had stopped before Levsey took her final leave.

We also reject Levsey's claim that Callegus engaged directly in harassment by investigating Boyd's allegedly false sexual harassment claim. Where an employee makes a harassment complaint, the employer is under a duty to take prompt, reasonable and efficacious remedial action in response. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1184.) Callegus' actions related to both employees' complaints were appropriate.

DISPOSITION

The judgment is affirmed.

Costs on appeal to be awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

William Q. Liebmann, Judge

Superior Court County of Ventura

______________________________

Law Offices of Joseph M. Lovretich, Joseph M. Lovretich, D. Aaron Brock for Plaintiff and Appellant.

Daley & Heft, Neal S. Meyers, Sylvie P. Snyder for Defendant and Respondent.

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[1]All statutory references are to this code unless otherwise stated.

[2]Levsey asserted a further cause of action for intentional infliction of emotional distress only against individual defendant Monica Boyd. The trial court denied Monica Boyd's motion for summary judgment. Levsey and Boyd reached a settlement and Levsey dismissed her claims against Boyd.

[3]Title VII cases provide guidance when interpreting the FEHA. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 278.)