Williams v. Sun Microsystems

Filed 8/7/07 Williams v. Sun Microsystems CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I.                   Introduction

Plaintiff Carl Williams sued his former employer Sun Microsystems, Inc., alleging causes of action for employment discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.), violation of Labor Code section 202 et seq., breach of implied contract, emotional distress, defamation, and invasion of privacy. Plaintiff alleged that he had been disciplined, denied a promotion, raises, bonuses, and stock options based upon his sexual orientation and in breach of an implied-in-fact contract, and that he had been defamed and suffered false-light invasion of privacy by defendants publishing untrue statements about his conduct and behavior with coworkers.

The trial court granted defendants motion for summary adjudication of the FEHA, emotional distress, and Labor Code causes of action. Trial of the remaining contract and tort claims resulted in a defense verdict. Plaintiff appeals. He challenges the trial courts summary adjudication decisions. He also claims that the trial court erred in excluding certain evidence at trial and that it improperly rejected his special instruction pertaining to the tolling of the statute of limitations for the tort claims.

We reject plaintiffs claims of error relating to summary adjudication of the Labor Code causes of action and to the rulings made at trial. We agree that the trial court erred in granting summary adjudication of the FEHA cause of action. Accordingly, we reverse.

II.                Facts[1]

Plaintiff began his employment with defendant in or about 1992. In 2000, he held a lead position as a network engineer. Plaintiff reported directly to Stephen Harpster who, in turn, reported to Lisa Pavey. Up until 2000, plaintiff had received favorable performance reviews and routine promotions, bonuses, and pay raises. On or about March 8, 2000, Harpster prepared a promotion plan for plaintiff and sent it to him to review. The plan directed plaintiff to continue to lead his team and deliver his assignments on time and to [c]ontinue to keep [Harpster] and Jim Paugh apprised of schedules and status. The plan stated that plaintiff had been successful in making Steve Glass, a remote team member, feel like a local team member by constantly keeping him in the loop and up to speed. Other comments remarked favorably upon plaintiffs marketing skills, among other things. The plan concluded with the following: [Plaintiff] has been doing staff engineer work for the past couple of months. He very simply needs to continue what hes currently doing in order to be promoted.

On March 30, 2000, Harpster received a call from Pavey who was attending a conference in Adelaide, Australia. Pavey told him that one of plaintiffs team members, Samita Chakrabarti, had complained to her about a comment plaintiff had made. Chakrabarti had been having a casual conversation with plaintiff when she mentioned that she felt unsafe in large cities. Plaintiff replied that he always felt safe because he carried a gun. This evidently bothered Chakrabarti and she complained to Pavey about it. Pavey also told Harpster about Chakrabartis complaint that plaintiff had borrowed money from her in the past and took three months to pay it back, causing some tension between the two.

During this same trip to Australia, Pavey, Chakrabarti, and Carolyn Obata had gathered in a hotel restaurant. According to Obata, who related the conversation to plaintiff many months later, plaintiffs name had come up and Pavey stated, Oh my God, hes gay. Pavey then told the others that another male employee was uncomfortable because plaintiff had been coming on to or hitting up on him and that the matter was being handled by the human resources department. There is no evidence that the content of this conversation was repeated to anyone prior to Obatas retelling of it to plaintiff about 18 months later. (Pavey and Chakrabarti both deny that Pavey made the comments Obata attributed to her.)

Back in California, Paveys report of Chakrabartis complaints about the borrowed money and the carrying-a-gun remark prompted Harpster to ask other members of plaintiffs team about plaintiffs performance. Paugh told him that plaintiff did not include him in meetings and that plaintiff is interested in his own gain, and not the projects gain. Glass reported that plaintiff panics when things start to slip and that he loses track of details and should have more technical depth. Harpster interviewed Chakrabarti when she returned from vacation at the end of April 2000. In addition to the complaints she had shared with Pavey, Chakrabarti told Harpster that plaintiff had instructed her not to talk with Harpster or Dave Comay but to speak only with plaintiff since he was the project lead.

On or about April 28, 2000, Harpster spoke with plaintiff and told him to stop bullying and intimidating members of his team. Harpster refused to tell plaintiff who had complained about him because Chakrabarti had asked him not to use her name. Harpster also instructed plaintiff to give him and Paugh constant status updates. Harpster followed up with a written reprimand on May 1, 2000. In the written reprimand, Harpster stated: When in a leadership position such as yours, it is not appropriate to bully and intimidate other employees. Furthermore, every employee in this organization is free at any time to talk to other employees or to management. They do not need to go through you. After suggesting that plaintiff attend a training program in leadership skills and listing the performance expectations for persons in plaintiffs job classification, Harpster closed by saying, [P]lease be aware that further display of hostile or unprofessional behavior may result in disciplinary action up to and including termination. (Plaintiff disputed the truth of this assessment of his performance.)

On July 6, 2000, Harpster again talked to plaintiff about status updates. Because he concluded that plaintiff had not been providing timely status information, Harpster started a biweekly status meeting.

In mid-September 2000, Harpster gave plaintiff a written evaluation of his overall performance for the year ending June 30, 2000. This evaluation gave plaintiff an M rating, which signified that his performance required improvement. On September 29, 2000, Harpster placed plaintiff on a performance improvement plan, which required plaintiff to have only professional and non-intimidating communication with his peers, to provide Harpster with detailed, weekly status reports, and to be present in the office between 10:00 a.m. and 4:00 p.m. in order to be available to his team.

Plaintiff complained about the evaluation to Lisa Pepper, defendants human resources business partner, who investigated. On October 3, 2000, presumably in response to Peppers inquiry, Harpster sent her a memo detailing the things Ive talked with [plaintiff] about during FY00. The list notes that, in August 1999, Harpster had spoken with plaintiff about the quality of some code plaintiff had written and, in October 1999, he had counseled plaintiff about the need to better prioritize his work. The list goes on to note that, on March 23, 2000, Pavey had expressed concern that plaintiff did not share information with his team and that he went off and did things on his own without involving other team members or relevant departments such as marketing and public relations. The list mentions the call from Pavey on March 30, 2000, Harpsters subsequent interviews with Chakrabarti and other members of plaintiffs team, his oral and written reprimand of plaintiff, and the September 29, 2000 performance improvement plan. Harpster closed by noting, This is all I have explicitly documented but I know Ive talked with him more about giving me status updates and his working hours.

Pepper recommended that, although there were performance deficiencies, Harpster should upgrade the M rating to G because Harpster had not documented all of the deficiencies over a period of time. Harpster changed the rating but opted not to approve a performance-based bonus or merit-pay increase. In the revised written performance evaluation dated November 28, 2000, Harpster wrote: [Plaintiff] has had some behavioral problems this past year towards his fellow employees. When under pressure, [plaintiff] has bullied and intimidated members of his team. [Plaintiffs] behavior has improved in the last couple of months, but he must maintain a professional and courteous nature as a project lead. The evaluation goes on to note that plaintiff remains elusive with his project status and that Harpster and the product lead repeatedly feel out of the loop on issues and this will need to change.

In or about November 2000, another Sun employee, John Weeks, needed people to work on a project that involved responding to customer inquires. Harpster selected plaintiff for the project due to his strong external customer relations experience. For the first eight months plaintiff worked on loan to the Weeks project about 10 to 20 percent of his time. He began working full-time on the project in July 2001. Plaintiff was very unhappy with the assignment and let his feelings be known. He felt that the assignment was a demotion, even though it did not involve a decrease in pay or benefits, because it did not involve any networking responsibilities and it deprived him of the project lead status.

Around the same time plaintiff was assigned to the Weeks project, Pavey left the organization. Before leaving she promoted Harpster. Harpster hired Mimi Wong as first-level manager so that Wong became plaintiffs direct supervisor. Wendy Jones took Paveys place as plaintiffs second-level manager.

Sometime in early 2001, defendant instituted a performance evaluation system that ranked employees relative to their peers. Under this evaluation tool plaintiff was ranked at or below the fifth percentile, a relative underperformer. In April 2001, Wong placed plaintiff on an action plan. Among the concerns listed in the action plan was the perception that plaintiff played favorites with certain team members while ignoring others. Further, his grudging acceptance of the Weeks assignment did not reflect a positive approach and the willingness to be flexible, traits defendant expects from a mature engineer.

Plaintiff resigned in September 2001, taking a position with another company that paid about $40,000 more than his position with defendant had paid.

III.             Procedural Background

Plaintiff filed his complaint on September 27, 2002. His first amended complaint, filed January 13, 2004, contained six causes of action: (1) breach of contract, (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, (4) violation of the FEHA, (5) defamation, and (6) false light invasion of privacy. The gist of the claims was that Pavey and Harpster had repeatedly harassed plaintiff, made false statements about him, and set out on a course of action to force him to resign. Plaintiff, who is gay, complained that Paveys comments about his hitting up on another male employee showed that Pavey was biased against him on account of his sexual orientation. Plaintiff also complained that statements concerning his performance deficiencies, particularly that he had been bullying and intimidating his coworkers, were untrue. He alleged that defendant had wrongfully disciplined and demoted him and breached its obligation to give him a merit pay increase, bonus, and stock options.

Defendant moved for summary judgment or, in the alternative, summary adjudication of all six causes of action. The trial court granted the motion as to the FEHA and emotional distress claims but denied it as to the contract, defamation, and invasion of privacy causes of action.

Plaintiffs second amended complaint added three causes of action for violation of Labor Code sections 202, 204, and 216, subdivision (b). The new causes of action alleged that defendant had breached its obligation to pay plaintiff the raise and bonus he had failed to receive following the unfavorable performance evaluation in 2000. Defendant moved for summary adjudication of the Labor Code claims, submitting evidence that it had no obligation to pay the compensation plaintiff claimed. The trial court granted this motion.

Only the first cause of action for breach of contract and the fifth and sixth causes of action for defamation and false light invasion of privacy remained to be tried. Following a 10-day trial, the jury returned a verdict in favor of defendant. The jury found that plaintiff and defendant did have a contract pertaining to promotions or discipline and that defendant had breached the contract, but that plaintiff had suffered no pecuniary loss as a result. As to the defamation and invasion of privacy claims, the jury found that defendant had not published the statement that plaintiff had been hitting on a coworker. The remaining statements, which involved plaintiffs job performance, were published but plaintiff was barred from recovery by the statute of limitations.

IV.              Discussion

A.                 The Summary Adjudication Motions

                                                                                                                                          1.                     The FEHA Cause of Action

The gist of plaintiffs FEHA cause of action is that the temporal link between Paveys alleged discussion of his sexual orientation, her report of Chakrabartis complaint, and Harpsters subsequent adverse employment actions, raises the inference that the actions were the result of Paveys discriminatory animus. The trial court granted summary adjudication of this cause of action because it concluded that defendant had shown a legitimate, nondiscriminatory reason for the adverse employment actions and that plaintiff had failed to raise a triable issue on the point. Plaintiff contends that this conclusion was erroneous.

a.      Legal Framework and Standard of Review

The FEHA recognizes and declares that freedom from employment discrimination on account of sexual orientation is a civil right. (Gov. Code, 12921.) It is unlawful [f]or an employer, because of the . . . sexual orientation of any person, to . . . discharge the person from employment . . . , or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Id., 12940, subd. (a).)

The elements of a prima facie case of unlawful discrimination vary depending upon the facts of the case. Generally, the plaintiff must prove that he or she (1) was a member of the protected class, (2) was performing competently, (3) suffered an adverse employment action, and (4) some other circumstance that suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)

In the context of a summary judgment or summary adjudication proceeding, where the employer is the moving party, the employer has the initial burden. (Code Civ. Proc., 437c, subd. (p).) The employer must present admissible evidence showing either that one or more element of plaintiffs prima facie case is lacking or that the adverse employment action was based on legitimate, nondiscriminatory factors. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) Where the employer has presented evidence of a legitimate, nondiscriminatory reason for the action, the burden shifts to the plaintiff to produce substantial evidence that the employers stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

Proof of intentional discrimination is rarely proved by direct evidence. (Guz, supra, 24 Cal.4th at p. 354.) Thus, we may expect a plaintiff to rely upon inferences to create a factual dispute on the element of motive. (Cucuzza v. City of Santa Clara(2002)104 Cal.App.4th 1031, 1038 (Cucuzza).) In order to raise an issue as to the employers credibility, the employee must set forth specific facts demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence. (Hersant v. Department of Social Services, supra,57 Cal.App.4th at p. 1005.)

On appeal from summary judgment, our review is de novo. (Cucuzza, supra, 104 Cal.App.4th at p. 1039.) We apply exactly the same process as the trial court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) After identifying the elements of plaintiffs prima facie case of discrimination as contained in the pleading, we look first at the moving partys evidence to see if the moving party has established facts that negate one or more elements of plaintiffs case or establish a complete defense. If so, we then determine whether plaintiff has set forth specific facts to show that a triable issue of one or more material facts exists. (Code Civ. Proc., 437c, subd. (p)(1); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 582-583.) The moving partys evidence is strictly construed, while that of the opponent is liberally construed. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) [A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, supra, 24 Cal.4th at p. 361.)

b.      Analysis

In his first amended complaint, plaintiff alleged that he is a gay male, that he was performing competently, that he suffered discipline in the form of written reprimands, unfavorable performance evaluations, and demotion, and that he was denied a promotion, a raise, a bonus, and an award of stock options, based upon his sexual orientation. Plaintiffs evidence of discriminatory intent was Paveys alleged anti-homosexual comments to Chakrabarti and Obata in March 2000.

In its first summary adjudication motion, defendant produced evidence attacking the fourth element of plaintiffs prima facie case--the existence of a circumstance that suggests a discriminatory motive. Defendants evidence showed that Harpster, who was gay himself, took the actions he did without knowing plaintiffs sexual orientation. Pavey did not have a negative attitude toward gay people as evidenced by the fact that she had hired and promoted Harpster knowing he was gay. Further, even if Pavey did harbor an unlawful intention, she did not take any adverse actions against plaintiff. Harpster took the initial action and Wong took the later action.

In addition to attacking the illegal-motive element of plaintiffs prima facie case, defendant showed that it had a legitimate, nondiscriminatory reason for the challenged actions. Defendant showed that Harpster took the actions based upon his observations of plaintiff and negative reports from coworkers that Harpster had personally investigated. Wongs actions were taken after plaintiffs performance had been ranked in the bottom 5 percent. Wong was particularly concerned with plaintiffs vocal discontent with his assignment to the Weeks project.

Plaintiff did not produce any evidence to show that either Harpster or Wong had any intent to discriminate. His only evidence of discriminatory intent was the statements Pavey allegedly made while in Australia in March 2000. Plaintiff characterizes Paveys comments about defendant hitting up on another male employee as direct evidence that Pavey harbored and perpetuated the unflattering stereotype of homosexual men as being out-of-control, promiscuous sexual deviants.

Evidence of Paveys comments is contained in the transcript of Obatas deposition testimony.[2] Obata testified that, when Pavey, Chakrabarti, and Obata were chatting in the restaurant in Australia, Pavey said that [plaintiff] is gay, and he was coming on to one of the members of his project team. That it had been reported. Counsel asked her what had been reported and Obata replied, That there were issues within the project team that there was--a project member was uncomfortable because of this reason, that he felt uncomfortable because he thought that--well, I guess thats my assumption--because [plaintiff] was coming on to him, and she gave the example of the sitting in the empty chair as an example of his comfort level.

The inquiry proceeded:

Q. So if I understand you, Ms. Pavey stated [plaintiff] is gay; correct?

A. In paraphrase form. There could have been more words, but in general that was the message.

Q. And that she also stated with words to the effect if not exactly that [plaintiff] was coming on to one of the members of his project team?

A. That it was reported or something like that. Allegations. There are reports.

Q. Did Ms. Pavey indicate who the allegations came from?

A. No, not necessarily. More that it was an issue which was being addressed by HR.

Further along in the deposition, counsel asked Obata, Was it like [Paveys] very supportive of gay people, and, oh, my God hes gay? Was she disgusted by it? Was it some other emotion? Obata replied, I cannot tell.

The quoted passage does not directly prove that Pavey had a negative attitude about gay people. Even Obata could not say what Paveys attitude was. However, it is circumstantial evidence of Paveys view that, in plaintiffs words, gay men are promiscuous.

Defendant argues that even if the evidence is sufficient to raise an inference that Pavey harbored discriminatory intent, the adverse employment actions were not motivated by it because Pavey did not take the actions of which plaintiff complains; Harpster and Wong took the challenged actions. There can be no discriminatory intent where the person making the challenged decision was unaware of the plaintiffs membership in the protected class. (Cf. Morgan v. Regents of University of California(2000) 88 Cal.App.4th 52, 70 [in retaliation case, plaintiff must prove that employer was aware of plaintiffs protected activity].) Plaintiff cites Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves), in support of the argument that Paveys motive may be imputed to Harpster and Wong.

In Reeves,the plaintiff, a grocery store employee, had made several reports to the store manager that female employees were being sexually harassed by certain male employees. The store manager seemed resentful and sought to trivialize the complaints. (Reeves, supra,121 Cal.App.4th at p. 100.) Several months after the plaintiff made the first of such reports, he was involved in an unrelated pushing incident with another employee. The same store manager who had rebuffed the plaintiffs earlier reports of sexual harassment took a report from the employee who had been pushed and had the incident investigated and reported to the district manager. (Id. at pp. 102-104.) The district manager decided that the incident warranted dismissal. (Id. at p. 104.) The trial court granted summary judgment to the defendant on the ground that the district manager had no knowledge of the plaintiffs prior reports of sexual harassment and, therefore, could not have terminated him for the unlawful reason the plaintiff alleged. This court reversed, holding that, although the district manager did not know of the plaintiffs prior reports of sexual harassment, her ignorance did not conclusively negate the illegal-motive element of plaintiffs case. The district managers decision was little more than ratification of the recommendation flowing from the store managers referral. Thus, the person who made the final decision was not the only actor who materially contributed to the plaintiffs discharge. (Id. at p. 110.)

In the present case, Pavey allegedly transmitted Chakrabartis complaints to Harpster about the same time Pavey revealed her awareness of plaintiffs sexual orientation. If a jury were to interpret Paveys comments as reflecting a negative opinion of gay men, the temporal relationship between her remarks and her call to Harpster could raise the inference that the telephone call was motivated by that negative opinion. Further, it is undisputed that Paveys telephone call to Harpster precipitated the investigation that led Harpster to rescind the favorable evaluation he had issued just a few weeks prior to the telephone call and to issue the unfavorable evaluations and compensation decisions that plaintiff challenges here. This evidence is sufficient to support a finding that Paveys telephone call from Australia was a but-for cause of the adverse employment actions. (Reeves, supra,121 Cal.App.4th at p. 108.) It is also sufficient to allow a reasonable jury to conclude that defendants legitimate reason for the actions--concerns about plaintiffs job performance--was pretextual. Further, although Pavey claims she never made the remarks Obata attributed to her and did not know of plaintiffs sexual orientation until this lawsuit was filed, this too was an issue of fact for the jury. Thus, the trial court erred in granting the summary adjudication motion as to the fourth cause of action for violation of the FEHA.

                                                                                                                  2.                     The Emotional Distress Causes of Action

The trial court also granted summary adjudication of the emotional distress causes of action, finding that they were barred by the exclusive remedy provisions of the Workers Compensation Act. (Lab. Code, 5300 et seq.) That basis for the ruling was proper only in the absence of a triable FEHA claim. (See Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812 [workers compensation exclusive remedy does not apply if motive behind injurious acts violates fundamental public policy].) Since we have found the courts ruling on the FEHA cause of action to have been error, its ruling on the emotional distress claims must have been erroneous as well, unless there is another basis for it. There is. As defendant maintains, the emotional distress causes of action are barred by the statute of limitations.

Plaintiff filed his complaint on September 27, 2002. At the time, the statute of limitations for personal injury claims was one year. (Former Code Civ. Proc., 340, subd. 3.)[3] Plaintiff does not dispute that he filed his complaint more than a year after the cause of action for intentional infliction of emotional distress accrued. He claims, however, that because he filed his administrative complaint with the Department of Fair Employment and Housing (DFEH) within the year, the running of the statute should have been tolled while the administrative claim was pending. The same argument was rejected by Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1189-1190 (Mathieu). Plaintiff maintains that Mathieu was wrongly decided and urges this court to disagree with it. We decline to do so.

Mathieu held that the statute of limitations for a common law cause of action for termination in violation of public policy was not tolled while the plaintiff awaited completion of the DFEH process. Mathieu reasoned that since the Supreme Court had held that a cause of action for wrongful termination was an independent, common law alternative to a FEHA claim that did not require exhaustion of any administrative remedy (Rojo v. Kliger (1990) 52 Cal.3d 65, 86 (Rojo)), there was no reason the employee could not proceed directly to court on the common law claims. (Mathieu, supra,115 Cal.App.4th at p. 1189.) Indeed, as Rojo observed, since there was no exhaustion requirement attached to the common law cause of action, the employee may pursue both the administrative and the judicial avenues, either sequentially [citations] or simultaneously, in the latter case amending his or her complaint to join the FEHA cause of action once the Department has issued the right-to-sue letter. (Rojo, supra,52 Cal.3d at p. 88.) Mathieu concluded that a plaintiff is not disadvantaged by having to file a nonstatutory claim before receiving a right-to-sue letter from the DFEH and, therefore, there is no basis for recognizing equitable tolling.

Plaintiff argues that Mathieusanalysis is wrong and that we should decide the issue by analogy to Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093 (Downs). Downs held that an on-going Equal Employment Opportunity Commission (EEOC) investigation tolls the statute of limitations on a FEHA claim. Downs found that EEOC and FEHA procedures and remedies are wholly integrated and related and that the practical relationship between the two acts, embodied in a work sharing agreement between the EEOC and the DFEH, provided a basis for application of the equitable tolling doctrine. (Downs, supra,58 Cal.App.4th at p. 1101, citing Salgado v. Atlantic Richfield Co. (9th Cir. 1987) 823 F.2d 1322, 1325-1326.) The court further found that tolling the one-year statute satisfied the policy considerations of providing notice to defendants without imposing the costs of forfeiture on plaintiffs, avoiding the hardship of compelling plaintiffs to pursue several duplicative actions simultaneously, and lessening the costs by giving the parties the opportunity to settle the matter during the administrative conciliation process. (Downs, supra,58 Cal.App.4th at p. 1102.)

While plaintiff urges us to apply similar policy considerations in the present case, in our view, this case is more like Johnson v. Railway Express Agency, Inc. (1975) 421 U.S. 454. In that case,the Supreme Court of the United States held that filing a discrimination charge with the EEOC did not toll the statute of limitations applicable to a court action under section 1981 because the two claims provided for separate and independent legal remedies. (Id. at pp. 460-461.) The court recognized the policy concerns courts use to justify application of the equitable tolling doctrine: Conciliation and persuasion through the administrative process, to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commissions efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some circumstances, the administrative route may be highly preferred over the litigatory; under others, the reverse may be true. We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted, as, for example, a proscription of a [section] 1981 action while an EEOC claim is pending. (Id. at p. 461.)

We conclude that equitable tolling does not apply here. Although plaintiffs discrimination and emotional distress claims arise from the same set of circumstances, their procedures and remedies are not wholly integrated and related. It is true that the claims are common law actions and are not statutorily prescribed as the section 1981 action is. Nevertheless, by enacting the FEHA, the Legislature provided a plaintiff with a choice of remedies for employment wrongs. There is no suggestion in the California statute that the Legislature intended a plaintiff to complete FEHAs administrative process prior to instituting a judicial action on common law claims. If the common law tort of wrongful termination for violation of public policy is an alternative to a statutory FEHA claim (Rojo, supra,52 Cal.3d at p. 86), the torts of negligent and intentional infliction of emotional distress must also be viewed as alternatives. Since plaintiff did not file his complaint until after the one-year statute had expired, the trial court did not err in granting summary adjudication of the causes of action for infliction of emotional distress.

                                                                                                                               3.                     The Labor Code Causes of Action

Plaintiffs second amended complaint added causes of action for violation of Labor Code sections 202, 204, and 216, subdivision (b). The gist of all three causes of action was that defendant was obligated to pay salary increases and bonuses for the year 2000 and its failure to do so was a violation of the Labor Code provisions. Defendant moved for summary adjudication of the new causes of action, submitting evidence in the form of a declaration from Lisa Pepper, showing that defendant had no obligation to pay the salary increases and bonuses plaintiff claimed. Rather, raises and bonuses were discretionary decisions left up to the employees first-line manager.

Peppers declaration attached a copy of the FY01 Focal HR Guide (HR Guide). The HR Guide contains guidelines for paying the bonuses and merit-based raises plaintiff claims he should have received in 2000. As to the particular bonus plaintiff claims was withheld, the HR Guide states, All employees who meet the eligibility criteria are eligible for a bonus based on performance level. The HR Guide also states: Managers may adjust an individuals bonus award downward based upon his/her participation in other variable pay plans . . . . The target bonus for employees in plaintiffs job classification having a performance rating of G was 3 to 5 percent of actual wages. This target amount was contained in a table prefaced with the following: The following table provides a guide to managers to differentiate bonus awards based upon performance. However these are guidelines to aid managers in making decisions and should not be interpreted as strict rules. With respect to wage increases, the table in the HR Guide shows that only employees with a performance rating of G or better were eligible for a salary increase of 3 to 4 percent.

Pepper explained that plaintiff was one of two eligible employees in his department who did not receive the bonus for 2000 but that plaintiff received more than $15,000 in other bonuses that year, nearly $10,000 more than he had received the year before. As to the merit pay increase, Pepper explained that managers were to consider not only the employees performance but also the total compensation the employee received. The HR Guide recommends minimal to no increases for employees at the top of the compensation range. Plaintiffs total 2000 compensation was more than $111,000, which placed him in the mid to top quartile of the range for that year. Further, like the bonus, the merit pay increase was a decision that was left to the discretion of the employees first-line manager.

Plaintiff did not submit any evidence to controvert the preceding facts. He argued that the HR Guide showed that since he was given a G rating and, therefore, that he was eligible for the additional compensation, defendant was contractually bound to pay it. He further argued that since the trial court had already found that there was a triable issue of fact pertaining to plaintiffs breach of contract cause of action, the court was bound to reject defendants attempt to summarily adjudicate the Labor Code claims.

The trial court granted the motion, specifying that Peppers declaration and the attached HR Guide showed that plaintiff could not establish his Labor Code claims. On appeal, plaintiff argues that the court was bound by its prior ruling on the contract cause of action and, further, that the evidence demonstrates that he was entitled to the extra compensation. We reject the second argument first. The HR Guide shows that plaintiff was eligible for the compensation. It unquestionably does not show that he was entitled to it. Both the narrative language of the HR Guide and Peppers declaration show that the decision was left to the discretion of the first-line manager. Thus, defendant had no obligation to pay the compensation. Since plaintiff could not controvert these facts, the trial court correctly concluded that plaintiff could not establish an essential element of his Labor Code claims and properly granted summary adjudication of those claims.

With respect to his primary argument, plaintiff cites Code of Civil Procedure section 1909, which provides: Other judicial orders of a court or judge of this State, or of the United States, create a disputable presumption, according to the matter directly determined, between the same parties and their representatives and successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity. Plaintiff argues that under this code section, the trial courts prior order denying summary adjudication of the breach of contract cause of action directly determined the issue raised in connection with the Labor Code causes of action, i.e., that wages and bonuses were owed under an implied contract. This is not correct.

Plaintiffs cause of action for breach of implied contract alleged that defendant had demoted him and placed him on a progressive disciplinary program without good cause, denied him a raise, stock options, bonuses, and a promotion, and lied about his job performance in breach of an implied-in-fact contract. Defendants first summary adjudication motion sought to defeat this cause of action by showing that plaintiff was an at will employee. The trial court found this evidence insufficient to meet defendants initial burden. Therefore, the court denied the motion, which simply means that the first cause of action was not summarily adjudicated, i.e., nothing was directly determined.

B.                 The Motion in Limine Pertaining to Evidence of an Implied Contractual Obligation

Plaintiff next argues that the trial court erred in excluding evidence that defendant had an implied contractual obligation to give plaintiff a merit pay increase and annual bonus. The argument has its source in the summary adjudication rulings pertaining to the contract and Labor Code causes of action. In the first ruling, the trial court held that there was a triable issue of fact as to the existence of an implied-in-fact contract. In the second ruling, the trial court summarily adjudicated plaintiffs Labor Code claims, finding the evidence undisputed that defendant had no contractual duty to pay plaintiff raises or bonuses. Relying upon this second ruling, defendant brought a motion in limine to exclude any evidence of a contract to give plaintiff raises or bonuses. The trial court granted the motion finding that the summary adjudication of the Labor Code claims had been based upon the absence of any contract for payment of bonus or increased wages and, therefore, that plaintiff was precluded from introducing any evidence of such a contract. The court permitted evidence of a contract not to demote or discipline without good cause.

Plaintiffs counsel conceded that the summary adjudication rulings eliminated any claim for breach of a contract to pay a bonuses or raises. He argued, however, that he ought to be able to present evidence of the damages element of the claim relating to a contract not to demote or discipline without good cause. The court responded that the summary adjudication ruling, removed these items of damages from this case, Im so ruling.

Later in the trial counsel again asked the court for permission to introduce evidence of the loss of pay and bonuses that plaintiff claimed resulted from improper discipline. As counsel pointed out, Harpster had admitted in discovery responses that it was because of plaintiffs behavior that Harpster refused to give him bonuses, salary increases, or stock options.[4] The court again responded, Rightly, wrongly, [the law and motion judge] threw that out in terms of the bonuses and raises. Its out, its out. Plaintiff was allowed to introduce evidence that his base salary was approximately $96,000 and that, had he been given a promotion in August 2000, he would have received a pay increase of 15 percent of his base pay, roughly $15,000. But no evidence pertaining to potential merit pay increases or bonuses for 2000 was introduced.

By special verdict, the jury found that there had been an implied contract between the parties regarding promotions or discipline, that defendant had breached the contract, but that plaintiff did not suffer financial harm because of the breach.

Plaintiff now argues that the trial court erred in excluding evidence of a contract to pay a bonus or merit increase because the trial courts refusal to summarily adjudicate the contract cause of action presumptively established the contract claim. This is not correct. As we explained above, denial of a summary adjudication motion determines nothing other than that the issue must be tried. Plaintiff also argues that the trial courts ruling prevented him from presenting evidence of damages flowing from the breach of the contract not to demote or discipline without good cause. We agree that, to the extent the ruling barred evidence pertaining to an element of the unadjudicated contract cause of action, it was error.^[5]

The summary judgment statute (Code Civ. Proc., 437c) permits a trial court to summarily adjudicate one or more causes of action. (Id., subd. (f)(1).) At trial, a cause of action that has been summarily adjudicated shall be deemed to be established, and the case shall proceed as to the cause or causes of action . . . remaining. (Id., subd. (n)(1).) A grant of summary adjudication as to one or more causes of action does not bar other causes of action as to which summary adjudication has been denied. (Id., subd. (n)(2).) And no one may comment on the grant or denial of a summary adjudication motion to a jury. (Id., subd. (n)(3).) (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1124 (Raghavan).)

In Raghavan, supra,the trial court had granted summary adjudication of the plaintiffs defamation cause of action, concluding that the accusations contained in a written reprimand issued by the plaintiffs employer were true. At trial, the defendant moved in limine to preclude the plaintiff from litigating the truth of those allegations in connection with his remaining wrongful termination claims. The trial court granted the motion and instructed the jury that the statements were true. (Raghavan, supra,133 Cal.App.4th at p. 1134.) The appellate court held that this was error.

Raghavan observed that prior to 1990 it had been acceptable to summarily adjudicate separate issues in a case but the statute no longer permitted such piecemeal adjudication. (Raghavan, supra,133 Cal.App.4th at p. 1135.) The 1990 amendment, however, limited summary adjudication motions to the disposition of one or more causes of action, affirmative defenses, claims for damages, or issues of duty. (See Stats. 1990, ch. 1561, 2, p. 7331; Code Civ. Proc., 437c, subd. (f)(1).) As DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 418-421 clarified, the only claim for damages that may be summarily adjudicated without disposing of a cause of action is a claim for punitive damages under Civil Code section 3294.

The express legislative purpose of the 1990 amendment was to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense. (Stats. 1990, ch. 1561, 1, p. 7330, italics added.) Subsequent amendments have only reinforced this intent. (See Stats. 1992, ch. 1348, 1, subd. (m), p. 6702, adding that when a motion for summary adjudication is granted, the action shall proceed as to the cause or causes of action . . . remaining; and Stats. 1993, ch. 276, 1, subd. (m)(3), p. 1973, adding that the granting of a motion for summary adjudication shall not operate to bar any cause of action. . . to which summary adjudication was either not sought or denied; see also, Code Civ. Proc., 437c, subd. (n)(1), (2).)

The foregoing series of amendments to Code of Civil Procedure section 437c express[es] a unifying theme that summary adjudication shall have no preclusive effect during the subsequent trial. (Raghavan, supra,133 Cal.App.4th at p. 1137.) Facts are not summarily adjudicated. To be sure, in ruling upon a summary judgment or summary adjudication motion, the trial court makes no findings of fact. (Soto v. State of California (1997) 56 Cal.App.4th 196, 199.) With this understanding of the law in mind, Raghavan held that, even though summary adjudication had eliminated the defamation cause of action based upon the truth of the defamatory statements, the wrongful termination cause of action should have proceeded unaffected. (Raghavan, supra,133 Cal.App.4th at p. 1136.) The truth of the allegations contained in the employees personnel file was an issue for the jury to decide. (Ibid.) It follows that the trial courts decision to exclude any evidencepertaining to bonuses and raises was erroneous because it effectively allowed summary adjudication of the Labor Code causes of action to conclusively adjudicate facts material to the unadjudicated contract claim. That said, the error was not prejudicial.

The jury found that defendant had breached a contract regarding promotions or discipline but that plaintiff had not suffered any pecuniary damage. Since there was uncontroverted evidence that, if plaintiff had been promoted as promised, he would have received a raise of around 10 percent of his base pay, the jury impliedly found that the breach involved discipline and not promotion. The verdict, therefore, could reflect a finding that defendant had breached the contract by transferring plaintiff to the Weeks project, an action plaintiff insisted was disciplinary in nature. If the jury so found, it correctly determined that plaintiff suffered no pecuniary damages because the evidence was undisputed that the transfer did not affect plaintiffs pay or benefits.

The verdict might also reflect a finding that defendant breached the contract by wrongfully issuing the May 2000 written reprimand or the unfavorable evaluation of September 2000. (Since plaintiff resigned in September 2001, he claimed only damages flowing from defendants 2000 breach.) If the jury had found the reprimand and performance review were a breach of contract, the jury could not have assigned damages because there was no evidence of damages relating to this alleged breach. However, the evidence plaintiff proposed to introduce would not have corrected this problem.

The excluded evidence is Harpsters acknowledgment that, given his concerns about plaintiffs performance, he chose not to recommend [plaintiff] for a pay raise, bonus, or stock options. The jury would have had no way to tell from this evidence whether plaintiff would have received a raise or a bonus and, if so, how much it would have been. This uncertainty highlights one of the problems that can arise in cases where an employee complains of adverse actions short of demotion or termination. Our Supreme Court had presumed that such problems would minimize the risk that courts would become involved in this type of managerial decision making. In responding to an employers argument that by permitting wrongful demotion actions the court would open the floodgates of litigation, the Supreme Court stated: [W]e find implausible [the employers] claim that employees will bring their employers to court over the more minor matters that [the employer] predicts--such as changes in work rules, reprimands or other intermediary forms of discipline--for the simple reason that in such cases, even if the promises are sufficiently definite to permit enforcement, courts will be unable to grant any significant relief. An employers alleged violation of these minor contract terms will likely not give rise to ascertainable damages. It is fundamental that [contract] damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) Absent a definable loss, a party is entitled only to nominal damages. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 473, disapproved on other grounds in Guz, supra,24 Cal.4th 317, 352, fn. 17.) There is no definable loss in this case.

Damages could not be ascertained from the HR Guide, as plaintiff maintains. The HR Guide unequivocally vests the first-line manager with discretion to determine whether to award merit increases or bonuses and how much to award. It is impossible to tell from Harpsters statement or the HR Guide what plaintiff might have received if defendant had not issued the written warning and poor evaluation. That is, damages for this breach, if, indeed, the jury had determined this action to have been a breach, were not ascertainable. Therefore, any error in excluding the evidence was harmless. (Cal. Const., art. VI, 13.)

C.                 Refusal of Plaintiffs Estoppel Instruction

Plaintiff alleged that certain statements about his performance on the job, which were part of the May 2000 written warning, the September 2000 performance review, and the April 2001 action plan, were defamatory. Plaintiff acknowledged that he was aware of the statements at the time they were made, much more than a year before he filed this case on September 27, 2002. Since the statute of limitations for defamation is one year (Code Civ. Proc., 340, subd. (c)), plaintiffs cause of action based upon the initial publication of these statements was barred. However, plaintiff presented evidence to show that when he was first presented with the statements in 2000, he was told that the statements would not be seen by anyone other than his manager and a human resources representative. It was not until after he filed the lawsuit that he learned that Harpster had published the earlier statements to second-line managers, Pavey and Jones, and that Wong had forwarded her April 2001 plan to Harpster. Plaintiff admitted that he had given documents containing the allegedly defamatory statements to Pavey, Jones, and Pepper sometime in the fall of 2000. Nevertheless, plaintiff argued that his defamation and false light causes of action did not accrue until he learned of the republication sometime after he filed the lawsuit. Accordingly, plaintiff urged the trial court to give the following special instruction:

[Defendant] contends that [plaintiff] cannot recover for his defamation or false light claims because he knew, or should have known, that the statements were published more than one year before he filed his lawsuit. [] However, [defendant] cannot rely on this defense if it concealed information from [plaintiff] that, had it not been concealed, would have prompted [plaintiff] to file a defamation/false light lawsuit. [] If you find that [defendant] concealed from [plaintiff] facts that would have led [plaintiff] to discover the publication of the alleged defamatory/false light statements, then it does not matter whether the lawsuit was filed within one year of the time that the statements were published.

The trial court rejected the instruction, concluding that there was no evidence that defendant had fraudulently concealed any of the republications. Plaintiff argues that this was error. We disagree. It is, of course, axiomatic that a party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory. (Bains v. Western Pacific R.R. Co. (1976) 56 Cal.App.3d 902, 905.) Neither requirement was met here.

Plaintiffs special instruction purported to describe the theory of fraudulent concealment. (Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 321.) The fraudulent concealment principle works like the discovery rule. Under the discovery rule, the accrual of a cause of action may be delayed when the defendants actions, whatever they are, hinder the plaintiffs discovery of the defamatory publication. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.) The same principle applies when the defendant has fraudulently concealed the cause of action. The running of the statute of limitations is tolled, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it. ([Sanchez v. SouthHooverHospital(1976)18 Cal.3d 93, 99].) . . . Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an otherwise diligent plaintiff in discovering his cause of action. (Id. at p. 100, italics omitted; see also Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 231-232.) (Ibid.) Thus, the discovery rule and the principle of fraudulent concealment are close cousins. (Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 99.) Some courts have referred to the two concepts as equivalent. (See Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029, fn. 8.) Indeed, the only material difference between them is that with fraudulent concealment, the delayed discovery mus