Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-05-440258
Marchiano, P.J.
Plaintiff Dejalma Crossley sued the City and County of San Francisco (City), and Robert Majoulet and John Mercurio, employees in the City Distribution Division (CDD) of the City Water Department (Department) under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for employment discrimination (Gov. Code, § 12940, subd. (a)), retaliation (Gov. Code, § 12940, subd. (h)), and harassment (Gov. Code, § 12940, subd. (j)(1)) arising out of plaintiff’s employment as a provisional 7463 Utility Plumber Apprentice (apprentice) at the CDD from March 31, 2003 to August 20, 2004. Plaintiff appeals from the judgment entered for defendants after their motion for summary judgment was granted. We conclude that plaintiff raised no triable issue as to any material fact in support of his causes of action, and affirm the judgment.
I. FACTS
Plaintiff is African-American and a third generation plumber; his father and grandfather worked as plumbers for the City. As an apprentice, plaintiff worked under the immediate supervision of journey-level utility plumbers (journeymen) installing and maintaining water mains, pipes, meters, fire hydrants, gates, and valves.
Background facts set forth in this paragraph are undisputed. The hierarchy among workers at the CDD starts with laborers and moves up through apprentices, journeymen, and plumber supervisors to the general foreman. This hierarchy is “strictly followed.” Supervisors have authority over all journeymen, who have authority over all apprentices. An apprentice is assigned as a helper to a particular journeyman who serves as his or her direct supervisor and mentor, but apprentices are expected to take instructions from all journeymen. Because CDD plumbers generally work in crews, their ability to work with others is “extremely important.” Apprentices are required to closely follow instructions from journeymen to ensure that the work is performed safely and efficiently.
Plaintiff confirmed in his deposition that, as an apprentice, he was “there to help the journeyman plumber out,” and “was basically there at his disposal.” Plaintiff said that his work depended “on [how] the journeyman . . . felt . . . . If he didn’t feel like jack hammering, I would jack hammer. If he didn’t want to spade, I would spade. If he didn’t want to dig, I would dig.”
Plaintiff was assigned to journeyman Andre Reynolds for four to six months, beginning around July 2003; in his declaration in opposition to the motion for summary judgment, plaintiff stated that his problems at CDD did not begin until after he was transferred from Reynolds to another journeyman. However, plaintiff testified in his deposition that, within three months of starting at CDD, he had started complaining to defendant Majoulet, a CDD supervisor, that “I would be doing all the work and other employees wouldn’t be doing anything. I even told him of an incidence where guys were complaining about we were going to have to work late. [¶] And I said: If you guys stopped standing around and talking and actually got in here and started doing some work, we wouldn’t be having to work late.”
Plaintiff received a “performance appraisal report” on July 30, 2003, four months after he was hired, indicating that he had a problem working with others. In the report, he was rated on a scale of 1 (“unacceptable”) to 5 (“outstanding”) in eight categories: attendance and punctuality; knowledge of job; quantity of work performed; quality of work performed; effectiveness in working with others; adaptability to work situation; use of materials and equipment; and safety. He received an overall rating of 3 (“competent and effective”), and 3 in every category except that of effectiveness in working with others, where he received a 2 (“development needed”) and the comment “[c]ontinuing effort required.”
According to a memo later prepared by defendant Mercurio, who was one of plaintiff’s supervisors and Majoulet’s subordinate, Mercurio received numerous complaints about plaintiff from coworkers, beginning in July 2003, on subjects “rang[ing] from [plaintiff’s] unwillingness to take instruction from his Journeyman, being argumentative, and making racial comments and having a bad attitude.”
Journeyman Reynolds stated in his declaration in support of the motion for summary judgment: “When [plaintiff] was assigned to be my helper, I often found him difficult to work with. He did not take instruction well. He would constantly question my instructions, requiring me to ask him several times to do a task before he would do it. He often responded to my instructions with comments like, ‘Why do I have to do that?’ or ‘Why don’t you do it?’ This occurred on a regular basis and made the workday feel very long. [¶] [G]enerally . . . he would eventually do what he was told to do, but it was often a struggle to get him to do it. [¶] . . . [¶] [Plaintiff] described himself as a ‘third generation plumber’ who considered himself more skilled than most of the workers. Yet, he had worked for the City for only a few months. . . . [¶] During my tenure as a journeyman plumber and plumber supervisor, I have worked with every helper who has been employed at CDD. I have asked them to perform a large variety of tasks related to our jobs. [Plaintiff] is the only one I can remember who would question my instructions. I regularly tried to talk to him about his apparent problems with authority and the difficulties I had working with him. I told him that several plumbers had complained about him to me. I wanted him to do well at CDD because he was a talented plumber. But his behavior did not change.”
In his declaration, plaintiff stated that he and Reynolds worked “very well” together, and that he “never heard any complaints from him or anyone else about our working relationship or my ability to work with him.” However, plaintiff acknowledged in his deposition that Reynolds “was always coming to me with the negative information about what everyone else was having to say about me and things like that.”
Plaintiff said he understood from Reynolds “that my fellow co-workers were basically talking behind my back about my work ethics, the way I performed. They didn’t like it. They thought I was making them look bad. I was different. They’re at—if you were to put it at a pace, they were at a four. I was running at a seven. And there are a couple of guys down there that run at sevens. But for the majority of the guys, they run at threes and fours. And they didn’t like that, here I am, the new young guy, who has picked up the trade very well, because I did everything a journeyman did, from running the mains to tapping them and everything else. And I knew how to do it, and they knew I knew how to do it. And they didn’t like that, because a lot of them would struggle that had been there five or ten years on simple things. [¶] And I would get in there and do it, I would be: Hey, what’s going on? [¶] It was a thing where everyone was joking: Oh you’re taking so long. [¶] But when they heard it from me, they took it personal and took offense and got mad. It was like, I don’t know if it was because I look young or whatever, because they always thought I was a little kid. [¶] I would tell them, I’m a grown man with two kids and a wife at home. . . .” Reynolds advised him to slow down and “[r]elax. It gets done when it gets done. There’s no need to show that you’re getting frustrated because we are taking too long, longer than we should be taking.”
On October 23, 2003, under disputed circumstances, plaintiff argued with journeyman Eamon Corry on a job Corry was supervising. Corry told Mercurio on that date that he no longer wanted to work with plaintiff.
On December 2, 2003, plaintiff was reprimanded for violating CDD policy by talking on his cell phone while flagging traffic around a worksite. Mercurio twice told plaintiff to stop talking on the phone on that day, and cursed at plaintiff when he found him on the phone the second time. Plaintiff received and signed a “letter of instruction” acknowledging that he had been at fault in talking on the phone, but complained to Majoulet about the language Mercurio used to discipline him. In his declaration, Mercurio admitted telling plaintiff “to ‘get the fuck off the phone.’ I had just told him to stop talking on the phone and it really made me angry to see him back on the phone only ten minutes later. He was creating an unsafe situation. I am not proud of the language I used, but it had nothing to do with [plaintiff’s] race or national origin. Furthermore, on these job sites, it is common practice to use profanities and I have used similar language when talking to other plumbers of all races.”
A memorandum had been distributed to Department employees in September 2003 stating that cell phones should not be used “while ‘flagging,’ ‘digging,’ and sitting in the truck.”
Plaintiff testified in his deposition that “a couple hours went by” between the times he was caught talking on his cell phone.
Plaintiff testified that Mercurio spoke little to him after he complained about the cursing, and that Reynolds had warned him, even before the cell phone incident, that Mercurio did not like him: “Q. And then the incident on the cell phone, do you think that was relating to your race, or what do you think was going on there with John? [¶] A. He just didn’t like me, and he had it out for me, because I was told prior to that that he had it out for me. [¶] Q. Who told you that? [¶] A. Andre Reynolds told me that he had it out for me and—[¶] Q. Did he explain what he meant? [¶] A. That he said John didn’t like me. [¶] Q. With no explanation? [¶] A. No explanation. [¶] And that once John doesn’t like you, you know, you got to be on your Ps and Qs because he’s gunning to get you. He always said: John is a miserable person, and he gets his jollies out of making other people’s life miserable.”
Reynolds told Mercurio on December 21, 2003, that he no longer wanted to work with plaintiff. After his period helping Reynolds, plaintiff was assigned to journeyman Mark Radovich. Plaintiff criticized Radovich for being lazy. In his deposition, plaintiff said that Radovich would loaf on jobs talking to other members of the crew, and then “come over [and say]: You ain’t done yet? What’s taking you so long? [¶] And I would straight say: Maybe if you got over and helped me a little bit, we would get this done a whole lot faster than sitting over and talking with them. [¶] They didn’t like that.” Plaintiff did not think that he was required to carry Radovich’s workload. Radovich told Mercurio on January 23, 2004, that he no longer wanted to work with plaintiff.
In a January 30, 2004, performance appraisal report, plaintiff was rated a 3 (competent and effective) in all categories except effectiveness in working with others and adaptability to work situation, where he received a 2 (development needed) and comments that he had difficulty taking instructions from journeymen and foremen. His overall evaluation was a 2, with the comments: “1. skill level exceeds standards,” “2. development needed working with co-workers.”
After Radovich, plaintiff was assigned to journeyman Sean Cavan who, according to plaintiff, “didn’t know what he was doing.” Plaintiff testified that he “clashed” with Cavan “every day,” because he would tell Cavan that he was not doing his work correctly and Cavan “didn’t like hearing that from me, and he would get mad and he would straight tell me: I’m the journeyman. You’re the apprentice. I don’t want to hear nothing you have to say. Let me figure it out for myself. [¶] . . . [¶] He said: You’re cocky. You think you know everything. [¶] I would tell him: I don’t think I know everything, but this is how it’s supposed to be done. This is how they showed me. You’re sitting here taking 40 minutes doing something that should only take five. I’m sorry that I’m trying to help you and you’re getting frustrated. [¶] I’ve kind of learned in my eight years of doing this now that a lot of people, when they’re in a higher position than you and you’re in a lower one, they don’t like to hear you tell them what to do if they don’t know what they’re doing. If that was wrong of me, then I was wrong.”
Plaintiff said that he disregarded advice to avoid instructing Cavan: “[S]ometimes guys would tell me: Jalma, sit back. Let him do it. Just don’t say nothing. If he’s having problems, let him struggle. [¶] But I wasn’t raised that way. You guys tell us we’re a team, I’m going to treat us like a team. I’m not going to sit back and see my co-worker struggle and not say nothing. . . . [¶] . . . [¶] [A]nd I can’t help that I’m knowledgeable of what I’m doing and this person wasn’t. . . . [¶] [A]nd it was only when I was put with the people that were lacking in the knowledge or in the physical skills to get the job done that there was problems . . . .” Cavan told Mercurio that he did not want to work with plaintiff.
After Cavan, plaintiff was assigned to journeyman Jim Kazarian, and plaintiff had an incident with Kazarian and Mercurio on March 5, 2004. According to Mercurio, plaintiff did not return to a job after lunch, Kazarian reached plaintiff on his cell phone, plaintiff told Kazarian where he was, Kazarian told plaintiff they would pick him up, but they could not find him. According to plaintiff, the job was completed before lunch, he went for a walk in the direction of the CDD yard while Kazarian went to lunch, Kazarian promised him a ride to the yard, but never picked him up, so he had to walk approximately two hours back to the yard.
Kazarian told Mercurio that he did not want to work with plaintiff. Plaintiff testified that Kazarian was lazy and incompetent, and that he “would have to work with him and carry him and sit there and watch him make mistakes. And when I would say something to him about it, he would jump on me. And being that him and Mercurio, John Mercurio, were best friends, buddy-buddies, he would go to John Mercurio about it, I guess. And then I was moved from being with him.”
After Kazarian, plaintiff worked as a “floater” for a different plumber each day, and was given other tasks such as making manifolds, which are installed as meters for fire extinguishers, and manning the security station at the entrance to the CDD yard to prevent contractors from removing materials from the yard. Majoulet stated that the floater arrangement was implemented to avoid having to assign plaintiff to work with plumbers who had complained about him. Mercurio stated that plaintiff was given the manifold and guard station assignments when he was not needed in the field because he had difficulties working with others and he could perform these jobs alone.
Plaintiff testified that he objected to his third guard station assignment, telling Majoulet that he was claustrophobic and asking if there was something else he could do. When Majoulet would not change the assignment, he asked if he could take a sick day, and Majoulet told him that he could go home and take sick pay. He went home, but never received sick pay for the day. In his declaration, Majoulet stated that he did not give plaintiff permission to go home. When plaintiff said that he was claustrophobic and did not want to work as a “security guard,” Majoulet replied that the guard station had two windows and a door, and told plaintiff that he would be considered insubordinate if he left. In his complaint form for this May 14, 2004 incident, Majoulet wrote, “[plaintiff] is constantly combative. Recommend termination.”
The next incident occurred on May 18, 2004, when plaintiff was attending a class on hazardous materials. The teacher, Nancy Crane, complained to Majoulet that plaintiff and a coworker had disrupted the class by arguing, swearing, and talking over other people, and by persisting in that behavior after being told to stop. In his deposition, plaintiff recalled Crane telling him that he was disrupting the class, but he denied swearing and arguing as Crane reported. In his deposition and declaration, he said Crane objected when he played with toys she had brought to the class, and he immediately stopped playing with the toys when she told him to.
In July 2004, Majoulet spoke with Kevin Barry, CDD’s Division Manager, about the problems he and others were having with plaintiff, and Barry consulted with Michael De Bellis, a Senior Personnel Analyst in Human Resource Services with the City, about terminating plaintiff’s employment. De Bellis advised Barry that under City Civil Service Commission rules plaintiff was a provisional employee who could be released at any time. In his declaration, Barry stated that he told De Bellis on August 4, 2004, that he wanted to fire plaintiff “because of his repeated misconduct. I believed that he was undermining the CDD operation. Teamwork is very important at CDD because plumbers are assigned to work in crews. Based on reports that I had received about [plaintiff’s] inability to take instructions or to get along with co-workers, as well as his disregard for Department procedures, as evidenced by the incident in which he talked on his cell phone while flagging traffic, I determined that releasing him was warranted.”
On August 19, 2004, De Bellis informed plaintiff that his employment was being terminated. De Bellis “briefly explained to [plaintiff] that he was being released because of problems in his work performance, including incidents in which he was AWOL and had refused to take instruction from his journeymen, as well as his general inability to get along with co-workers. I informed him that he should gather his belongings, leave the premises and not return to the CDD facility.”
The next day, plaintiff went to the office Majoulet shared with Mercurio and asked Majoulet for a copy of his personnel files. In his declaration, Majoulet stated that he told plaintiff that he would have to “go through personnel” to get his files. While plaintiff and Majoulet were talking, Mercurio entered the room and had an argument with plaintiff. According to Mercurio, he told plaintiff to leave the office, plaintiff told him to “get the ‘fuck’ out of the office,” and he responded by cursing at plaintiff before he and Majoulet left the office to avoid further confrontation. According to plaintiff, Mercurio came into the office and asked him “[w]hat the hell” he was doing there. When plaintiff said, “I’m not talking to you,” Mercurio demanded that he leave, and swore at him, saying things like “You don’t have to be a fucking asshole. And if you weren’t such an asshole, you would still have your job here.” In his declaration, Mercurio admitted that “my language was not appropriate for a supervisor, but I responded to him the way he responded to me. I did not talk to him this way because he is African American, only because I was angry.” Plaintiff obtained his personnel files from another City office the next morning.
Plaintiff went to the CDD yard in the early morning on September 1, 2004, and took photos of what he identified as a “white power” symbol on Mercurio’s Department truck. Plaintiff was arrested later that day for trespassing at the yard, but the charges were eventually dismissed. In his deposition, plaintiff described the symbol on Mercurio’s truck as an “SS Nazi symbol . . . the high arch SS, which was Hitler’s elite Nazi task force . . . he had a sticker of that on his Water Department truck.” In his declaration, Mercurio stated, “I was unaware that this sticker was on the license plate and have no idea when and how it was put on the truck. I did not place it there and do not know what the symbol displayed on the sticker means. At the instruction of the Department, I removed the sticker from the truck in February 2006. [¶] [I] am in no way associated with, nor have I ever been associated with, any groups that espouse beliefs in the superiority of the Caucasian race, the inferiority of any other race, or that have any association with Nazis, skinheads or any other hate or white supremacy group.”
Plaintiff’s evidence in opposition to the motion for summary judgment consisted of his declaration, and that of Anastasia Maxwell, an African-American woman who was employed by the City as an apprentice at the CDD from August 21, 2000 to August 21, 2006, when she was terminated for allegedly “removing scrap copper without authorization.” Maxwell described plaintiff as “an excellent plumber and . . . an exemplary employee” who had “a good working relationship with fellow employees and got along quite well with everyone.” She said that she had been the only African-American female plumber employed by the City, that Andre Reynolds was the only African-American supervisor employed by CDD, and that plaintiff was replaced by a white male when he was terminated. The court found no foundation for Maxwell’s assessment of plaintiff’s job performance because she identified no specific instances when she observed his work.
Plaintiff acknowledged in his deposition that he did not hear Mercurio or anyone else make racial comments when he worked at the CDD. Mercurio, Majoulet, Barry, and De Bellis, as well as journeymen plumbers Eamon Corry, Dan Godfrey, and Colm Conefrey who filed declarations attesting to the difficulties they had working with plaintiff, all denied taking any actions toward him that were motivated by his race Journeyman Reynolds declared: “As an African American supervisor, I would like to see more African Americans advance up the chain of command at the Water Department. I wanted [plaintiff] to succeed here. However, based on my experience working with [plaintiff], I do not believe that he was released from his position because he is African American. I believe that he was terminated because he was one hard guy to get along with.” De Bellis stated that a white apprentice had been terminated from the CDD in April 2005 for “being AWOL.”
Plaintiff stated in his deposition that “[w]hen I was put in the guard shack, no white employees were put in there.” According to Majoulet, most CDD apprentices were at some point assigned to the guard station, and all CDD plumbers were periodically assigned to make manifolds. Plaintiff said at one point in his deposition that he and Maxwell were required to make manifolds, but he could not recall any white employees getting that assignment. At another point in his deposition, plaintiff stated that white employees who were asked to make manifolds could go home after finishing four or five of them, but when he made manifolds he was required to remain at the yard until 3:30 p.m. Plaintiff remembered a day he was assigned to make manifolds when Mercurio called him and told him that he had eight minutes left in his lunch hour and needed to return to the yard to avoid being written up for abandoning his post. Majoulet stated that plaintiff complained about work assignments, but never about racial discrimination against him or anyone else at CDD.
Plaintiff stated in his deposition that all white employees were allowed to take their two weeks of vacation back-to-back, but that he was not allowed to take two weeks together. Instead, he took one week off, and was paid for the other week when he was terminated. Plaintiff said that Majoulet and Mercurio were in charge of his vacation time, and that he requested vacation from Mercurio. Mercurio denied preventing plaintiff from taking vacation, stating that, “While [plaintiff] may have complained to me regarding his vacation schedule, I was not responsible for scheduling vacations and I have no personal knowledge about when [plaintiff] was allowed to take vacation. The vacation schedule was Utility Plumber Supervisor Pat Holland’s responsibility. Furthermore, vacations were scheduled according to seniority.” In his declaration, plaintiff admitted that Mercurio told him Holland was in charge of vacations, and he did not claim to have approached Holland on the subject.
In his declaration, plaintiff stated that “[a]t all times during my . . . employment, I performed all of my assigned and related duties in an excellent manner while cooperating and working harmoniously with my fellow plumbers relative thereto.” In response to Reynolds’ declaration that he constantly questioned Reynolds’ instructions, plaintiff declared that “[a]n apprentice plumber cannot learn unless he or she asks many questions concerning the jo[b] at hand.” In his deposition, however, plaintiff said that he got little instruction from journeymen and that little was required because the work was so easy. When he was asked whether he was instructed on how to perform his work he answered, “No. Because it’s black and white. It’s very simple. After about a month of being there, you know your job and you know your assignment because the only thing that changes is the scenery. And where you’re at, it’s a very basic thing we do down there. I mean, my nine-year-old son can do it. It’s very simple. It doesn’t take a lot of brains and it doesn’t take a lot of mechanical knowledge to do it. And everyone knew that I knew how to do it.”
In his declaration, plaintiff stated that, when he was assigned to Reynolds, “I had learned that many of my white supervisors and coworkers resented my marriage to a white woman.” In his deposition, plaintiff said that he was not invited to join the baseball team the Department formed while he worked at the CDD. He was told there was no room on the team while new white journeymen were being asked if they wanted to join. When asked at his deposition to explain why he thought his firing was a racist act, plaintiff answered: “Just everywhere, the way I was treated. White employees are still working there, you know. I did everything that any other employee of good standing would do there. I never turned down overtime. I came in when I wasn’t supposed to come in. I bent over backwards for the Water Department to be part of the team. And I was shunned in every aspect of the way and felt like an outsider. Just like they said, I was always told I wasn’t fitting in, and everything else. They never told any of the white employees that. And I was the only black apprentice.”
This last statement overlooks Maxwell, and another African-American apprentice who plaintiff said in his deposition was hired “maybe a month and a half before I was fired.”
Although plaintiff claimed in this testimony to have “bent over backwards . . . to be part of the team,” he admitted elsewhere in his deposition that he objected to work assignments and challenged instructions. He said he was admonished by Reynolds that he needed to be friendlier in order to get along with his coworkers, but he did not profess to have taken that advice. Plaintiff testified that he was singled out for ridicule, but conceded that disrespect of apprentice plumbers was part of the culture at CDD: “Q. Generally, you feel that all of the culture there was people not treating other people respectfully? [¶] A. Right. [¶] Yourself and other plumber apprentices. And then you would stand up, speak up about it? A. Right.” Defendant said that, as opposed to other apprentices like John Cruz, he would object to poor treatment:
“He used to tell me: You wear your feelings on your shoulder. People can see how you feel without you even saying anything. He goes like: Man, don’t you know, people says things to you here just to—excuse my French, but this is what he said—just to fuck with you. People say things to you down here because they know they can get under your collar. . . . [¶] . . . [¶] . . . He would say: In the morning, man, you need to come in and you need to smile more. You need to say good morning to everybody. When you come in, sometimes you say good morning, but you don’t smile. You know, you just sitting there. [¶] I go: What do I need to smile for? It’s seven something in the morning. I just dealt with the baby and everything else. I’m tired. You know, I’m here. I’m on time. What else do you need from me? [¶] That’s not it, Jalma. You’re not getting it. You need to play the game if you want to fit in down here . . . everybody needs to be your friend, whether you like them or not. . . .”
“[T]he ones that did get treated like that wouldn’t say anything about it, would just, you know, deal with it. Because like Cruz would tell me all the time: Don’t say nothing, dude. Just let it go. Just deal with it. [¶] No, man. This ain’t right. We shouldn’t have to deal with it. [¶] There would be many times we would be on a job, and a guy would say something foul or flip to me or something that was just derogatory. And Cruz would just look at me and like shake his head. [¶] And, you know, me, maybe I shouldn’t have, I would say something: Man, you don’t have to talk to me like that. I’m doing my job just like you are. Give me the respect that I’m giving you. And that you’re giving everyone else. Don’t belittle me, basically. [¶] You know, it was seen by other employees, you know, it was seen. But I just, I’ve always been one to speak up for myself. And maybe that hasn’t been helpful. But I have, because I feel that there has to be a change and someone has to make it. And we’ve c[o]me too far as a people and in this country not to say something when wrong is being done. And that’s the problem with the world today is that people don’t speak up when they’ve been wronged and when something wrong is being done.”
II. DISCUSSION
A. Scope of Review
“The rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. [Citation.] We review the record and the determination of the trial court de novo. [Citations.]” (Shin v. Ahn (2007) 42 Cal.4th 482, 499 (Shin).)
B. Discrimination
To establish a prima facie case of unlawful discrimination, the employee must show: “(1) he was a member of a protected class, (2) he was . . . performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, . . . and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) If a prima facie case is established, the employer must identify a “legitimate, nondiscriminatory” reason for the adverse action. (Id. at pp. 355-356.) In this context, “legitimate” reasons “are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Id. at p. 358.) To avoid summary judgment, the employee must then “offer substantial evidence that the employer’s 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, 1004-1005 (Hersant).) “ ‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. . . .’ ” (Id. at p. 1005.)
We will assume that plaintiff has established a prima facie case of discrimination with respect to the termination of his employment. Defendants have identified legitimate, nondiscriminatory reasons for releasing plaintiff, namely, his inability to take instructions from his supervisors and get along with his coworkers. Plaintiff was therefore required to “ ‘[d]emonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [the] proffered legitimate reasons for [the] action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.” [Citations.]’ ” (Hersant, supra, 57 Cal.App.4th at p. 1005.)
For purposes of the motion for summary judgment, plaintiff effectively disputed the circumstances of most of the specific incidents that preceded his termination (Shin, supra, 42 Cal.4th at p. 499 [evidence is viewed most favorably to party opposing the motion]), but he effectively conceded the validity of defendants’ charges that he could not work well with others.
Plaintiff’s testimony confirmed that in the CDD’s “strict hierarchy” apprentices were at the bottom of the totem pole and were not expected to challenge the authority of the journeymen. However, plaintiff did not refrain from questioning journeymen’s competence and objecting to their instructions if he thought they were wrong. Plaintiff admitted that he had difficulty working for many of the journeymen. He said that “a lot” of journeymen who had “been there five or ten years” “struggle[d]” with “simple things,” and that he had problems working with people he considered incompetent. Plaintiff rocked the boat by complaining about journeymen’s laziness and inefficiency, and he found that “they took it personal and took offense and got mad” when he did so. However, he did not think they reacted that way because he was African-American; the problem, he said, was that he “look[ed] young” and was viewed as “a little kid.”
Plaintiff also objected to the disrespect journeymen displayed toward apprentices. Although apprentices were evidently expected to put up with a certain amount of mistreatment from journeymen, plaintiff protested the poor treatment others tolerated—he thought it was important to do so. But while plaintiff’s grievances may have been real and his motives in objecting to them may have been laudable, there is no evidence that he was singled out for mistreatment because he was African-American. To the contrary, he said that a culture of disrespect prevailed at the CDD toward apprentices in general.
Plaintiff viewed himself as a valuable employee who did not deserve to be released. There is no question that he was a talented plumber. Crediting his evidence as we must on summary judgment, he alleged he was forced to work for people who were incompetent, lazy, and abusive, and his only deficiency as an employee, apart from an instance of improper cell phone use, was his inability to tolerate those failings in others. Nonetheless, his admitted behavior was not calculated to endear him to his supervisors, and no evidence calls into question the veracity of the principal reason given for his termination—that he was a difficult person to work with.
Plaintiff cannot manufacture a triable issue of fact on this subject with his declaration or that of Maxwell to the effect that he always got along well with everyone at the CDD when the thrust of his deposition testimony was to the contrary. (See, e.g., Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [admissions during discovery prevail over contrary declarations lodged on a motion for summary judgment].)
This difficulty was identified shortly after plaintiff started working at the CDD, and there is no evidence that he ever tried to modify his behavior to get along better with his coworkers. Arguably, he should not have been required to. But the question is not whether defendants were “wrong or mistaken” in releasing plaintiff (Hersant, supra, 57 Cal.App.4th at p. 1005), it is whether they did so because of his race, and insofar as it appears from the evidence any apprentice who acted like plaintiff would have suffered the same fate. Plaintiff at most “raised triable issues concerning whether the actions of [defendants] were reasonable and well considered. A trier of fact could find either they were or they were not. What a trier of fact could not reasonably conclude, however, was that [defendants] stated reasons were implausible, or inconsistent or baseless; it would not be reasonable to conclude they were pretextual and used merely to veil an act of [race] discrimination.” (Ibid.)
Accordingly, we conclude that summary judgment was correctly granted as to the discrimination claim.
C. Retaliation
“[I]n order to establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) “Protected activity” means opposition to practices forbidden under the FEHA or participation in a proceeding under the FEHA. (Gov. Code, § 12940, subd. (h).) If a prima facie case is established, the employer must offer a “legitimate, nonretaliatory” reason for the adverse action, and the burden then shifts back to the employee to prove intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Here, while plaintiff objected to what he perceived as incompetence, lack of diligence, and disrespectful attitudes exhibited at the CDD, there is no evidence that he complained of racial discrimination or any other employment practice made unlawful by the FEHA. Since plaintiff did not engage in protected activity, summary judgment was properly granted on the retaliation claim.
D. Harassment
The FEHA prohibits harassment of an employee because of race (Gov. Code, § 12940, subd. (j)(1)), and “harassment” is defined by regulation to include “[v]erbal harassment, e.g., epithets, derogatory comments or slurs . . . .” (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A)). To recover for racial harassment, the plaintiff must prove “ ‘that the racial conduct complained of was sufficiently severe or pervasive to alter the conditions of employment. In order to find that racial harassment is “sufficiently severe or pervasive[,]” the acts of racial harassment cannot be occasional, isolated, sporadic, or trivial. . . .’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465-466.) Relevant factors include: (1) the frequency of the racial conduct; (2) the severity of the racial conduct; (3) whether the racial conduct was physically threatening or humiliating, or a mere offensive utterance; and (4) whether the racial conduct unreasonably interfered with the plaintiff’s work performance. (Id. at p. 466.)
Plaintiff’s evidence showed that he and other apprentices were poorly treated by the journeymen as a group, but to the extent that plaintiff can be taken to claim that such treatment constituted actionable harassment, the claim fails for lack of evidence that the conduct was racially motivated.
We will assume arguendo that the “white power” symbol on Mercurio’s truck, without more, supported a reasonable inference that his individual harassment of plaintiff constituted racial conduct; a trier of fact might reject Mercurio’s unrebutted declarations that he did not know the sticker was on the car or what the sticker symbolized. However, plaintiff identified no conduct on the part of Mercurio that might qualify as harassment other than the two episodes of cursing at him, the phone call saying that his lunch hour was ending, and some teasing about safety glasses he wore. On the latter subject, plaintiff stated in his declaration that “[o]n occasions, when I came to work in the morning wearing Water Department supplied safety glasses, Mercurio would begin harassing me about wearing said glasses, asking mockingly, ‘is it too bright in here for you? Are you hung over or something’ implying negative conduct by me and encouraging negative attitudes toward me.”
The foregoing conduct of Mercurio scarcely demonstrates that it was racially motivated or racially directed at plaintiff, and was not sufficiently frequent or severe to alter the conditions of plaintiff’s employment or unreasonably interfere with his job performance. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131 [“ ‘a concerted pattern of harassment of a repeated, routine or a generalized nature’ . . .” is required]; compare e.g., Snell v. Suffolk County (2d Cir. 1986) 782 F.2d 1094, 1098, 1102-1103 [recovery for harassment supported by evidence of “constant racial derision,” including daily racial slurs, and displays of racially offensive cartoons and photographs].) Summary judgment was therefore warranted on the harassment allegation.
III. CONCLUSION
The judgment is affirmed.
We concur: Stein, J., Swager, J.