Opinion
A151171
09-05-2019
LEILANI VIANA, Plaintiff and Appellant, v. KQED, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC15549593)
Plaintiff Leilani Viana sued her employer, defendant KQED, Inc., alleging race discrimination, race harassment, and retaliation in violation of California's Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.). The trial court granted KQED's motion for summary judgment. On appeal, Viana argues summary judgment was (1) erroneously granted on her harassment claim because she presented ample evidence of a racially hostile work environment; and (2) erroneously granted on her discrimination and retaliation claims because she presented sufficient evidence of an adverse employment action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following undisputed facts are taken from the parties' briefing on KQED's motion for summary judgment.
After interviewing with Ernie Neumann, Director of KQED's Television Broadcast Operations, Viana, a Filipina-American, began working for KQED as a temporary "Master Control Engineer" (MCE) in 2000. In brief, MCEs are responsible for ensuring television programs are broadcast.
In 2004, KQED hired Viana as a full-time MCE. As she had since 2003, Viana continued to work on the weekends. In 2007, Neumann selected Viana for promotion to "Master Control Lead Engineer" (MCLE) at KQED. Typically, there are one or two MCLEs among the MCEs; MCLEs are the highest paid MCEs who have additional duties.
From 2012 to 2015, KQED employed six to eight full-time MCEs. Per a collective bargaining agreement between KQED and the National Association of Broadcast Employees and Technicians ("Union"), KQED had discretion to schedule work shifts for MCEs without taking employee seniority into account. Various factors affect MCE scheduling, such as the skills of each MCE, the skills needed for particular shifts, and restrictions on use of temporary employees. Neumann and Alice Miller, manager of Television Broadcast Operations, both supervised KQED's MCEs during the time period at issue in this case.
A. Viana's Initial Schedule Change Request in 2012/2013
In 2012, three of KQED's eight MCEs had weekends off. Those three had been with KQED for many years and were of various racial backgrounds, namely, Djovida was an African-American/Filipino MCLE, Chiu was a Chinese MCE, and Borao was a part Latino MCE. In December 2012, Djovida—who worked a weekday evening shift and had weekends off—announced his retirement. Upon learning this, Viana twice asked Neumann to give her weekends off although she also indicated she did not want to work evenings. Another MCE, Elizabeth Medina, who is Latina, also requested weekends off.
Neumann denied both Viana's and Medina's requests in January 2013. Neumann believed there was no flexibility in the schedule to grant the requests in part because other long-time MCEs, including Chiu and Borao who were the remaining two MCEs with weekends off, negotiated special schedules and would file a grievance or lawsuit if KQED altered them. He also thought the department needed one MCLE to work weekends and the other to work weekday evenings plus be willing to do overtime. Neumann understood that Viana did not want to work evenings or overtime. Viana, however, was never told she would have to work evenings if she wanted weekends off.
Viana disputes KQED's proffered fact that KQED managers believed they needed a highly skilled MCE to work weekends to help the other MCEs by citing to evidence that weekend shifts tended to have more stable and predictable work. But the stability and predictability of weekend work does not mean KQED managers did not believe they needed a highly skilled MCE to help the others on the weekends. We do not see a genuine factual dispute.
In the same month, KQED hired a new MCLE, Mannion, who was Caucasian, to take over Djovida's shift. By the end of 2013, Borao, who had weekends off, also retired, leaving only Mannion and Chiu with weekends off.
B. Viana's Second Schedule Change Request in 2014
In October 2014, Viana and two MCEs—Chandler who was Caucasian and hired around the same time as Viana, and Medina who also had a lengthy career with KQED—asked to have weekends off. Viana again told Neumann she would prefer to work mornings. In her email request, Viana asserted that she "paid [her] dues" unlike the other MCLE who had weekends off and the least seniority, that weekend workers had to use more of their vacation time to have weekends off and end up missing out on social time, and that "an attempt at some equality and fairness should be considered." Neumann denied the requests of all three employees in November 2014 for the same reasons as before. After learning of his decision, Viana emailed Union representative Santangelo and said she told Neumann, "I can't believe the amount of inequality that goes on around here."
In November 2014, the Union filed a grievance concerning this denial of the schedule requests on behalf of Viana, Medina, and Chandler. Neither Viana nor Medina ever told anyone at KQED or the Union at the time they filed this grievance that they believed the denial of their requests was racially motivated. In April 2015, after meetings between the Union and KQED about the grievance, the Union agreed to prepare a proposed schedule and the grievance was put on a "joint hold." No one told Viana or Medina about the hold.
Viana tries to dispute KQED's proffered fact that there is no evidence either she or Medina informed KQED or the Union at the time their grievance was filed that they believed their shift change requests were denied because of their race. But the evidence Viana cited to in response to the separate statement does not support a genuine dispute. Specifically, Viana cited to irrelevant deposition testimony, and irrelevant emails from 2015, i.e., the year after the grievance was filed.
Viana does cite to the aforementioned 2014 email request she sent to Neumann, where she used the words "equality and fairness," as well as the email she sent to Santangelo after her schedule change request was denied saying she told Neumann, "I can't believe the amount of inequality that goes on around here." These emails, however, did not specify Viana was talking about racial inequality. Viana herself testified when she said, "the amount of inequality that goes on around here," she was most likely referring to the fact that Mannion, the newest hire, had weekends off, and that she did not tell any KQED managers, or recall telling anyone at the Union, that she believed she was being discriminated against because of her race. Santangelo testified he did not understand Viana to be talking about racial inequality; he thought she was talking about seniority and loyalty. Medina testified she only ever told Santangelo about her concerns of disparate treatment or harassment, and she did not tell him she believed her schedule change requests were being denied due to her race.
C. Viana's Third Schedule Change Request in 2015
In June 2015, Mannion, who had been hired in 2013 to work the weekday evening shift (with weekends off) resigned, and KQED hired a new Caucasian MCLE, Blosser, who took over that shift. Blosser offered to switch shifts with Viana, but Viana tentatively declined, stating she would wait to see what management would do.
Then, in August 2015, two MCEs—including Chiu, the only other MCE with weekends off—announced their retirement. Viana and Medina again requested weekends off. Neumann responded to them both that management and human resources would make final decisions concerning staffing and scheduling. According to Neumann, Miller, and a member of KQED's human resources staff, KQED wanted to hire replacements before settling on schedules. Viana complained about the response to Union representative Santangelo stating, "The inequality around here is so absurd."
Meanwhile, Miller tried to craft a schedule accommodating the requests of Viana, Medina, and Chandler. Miller presented proposed schedules at a meeting in September 2015 with Neumann and other KQED officials, but they were rejected because they required more temporary employees on weekends. Those present at the meeting agreed it would be best to hire new MCEs before setting individual schedules.
D. KQED's New Hires in late 2015 and Schedule Changes
In late 2015, KQED hired three new MCEs, all of whom were Caucasian. One new hire, North, was initially assigned to work on weekdays with weekends off pending training and development of a permanent schedule. As early as December 18, 2015, Miller began planning a schedule to give Viana weekends off, a plan she finalized on January 14, 2016. In February 2016, Viana was given weekends off. KQED did not alter the schedules of Medina and Chandler, who had also filed the aforementioned grievance.
Viana and Medina filed suit against KQED on December 23, 2015. Neumann and Miller learned of this on February 3, 2016. Around July 2016, the Union provided KQED a proposed schedule to address the grievance.
E. The Complaint and the Motion for Summary Judgment
Viana's and Medina's complaint against KQED alleged causes of action for race discrimination, racial harassment, and retaliation in violation of the FEHA (Gov. Code, § 12940). KQED moved for summary judgment. The following is a summary of additional evidence presented to the trial court in support of, and in opposition to, the motion for summary judgment.
F. Additional Evidence Regarding Viana
During the course of her long career with KQED, Viana had never been the subject of racial epithets, had never heard racial slurs directed at any employees, and had never seen any racially charged images at work. No one ever physically mistreated or made offensive gestures towards her. Viana had never heard Miller utter a racial slur. When asked if she ever heard Neumann say a racial slur, Viana asserted she was unsure it qualified, but recounted a single incident when Neumann walked into the master control room and saw Ye, the MCE "on the board"—meaning responsible for monitoring what is being transmitted over the air to viewers from the feed for six different television stations—reading a Chinese newspaper and asked: "Why on earth is he reading a Chinese newspaper?" With regard to this incident, it was undisputed MCEs are generally not allowed to read while "on the board."
Viana described her relationship with Neumann in the last five years as "cordial." She testified she had never been disciplined at work, and neither Miller nor Neumann ever told her she needed to improve her performance. Instead, they repeatedly praised her, and Viana believed both appreciated her and thought she was skilled and talented. Although Viana tried to dispute that Miller and Neumann "repeatedly" praised her in writing, she cited no supporting evidence in her response to the undisputed fact in the separate statement, and the record plainly contains numerous emails that do in fact praise Viana.
Yet, Viana also testified that Miller "always tries to shut me down. [¶] She tries to talk over me when I'm trying to explain something to her. Her tone is not a friendly tone. . . . [¶] [S]he turns her back on me while she's talking to me, and she's walking away as she's talking to me." Viana believed Miller enthusiastically referred to several Caucasian employees that showed up for the afternoon shift as the "A-team" because of their race. While KQED did not dispute that Miller at times called several Caucasian employees the "A-team," Viana testified she could not specify how many times Miller called them the A-team, just that it happened "on a regular basis," though not daily. Viana felt Miller's reference to these MCEs as the "A-team" implied her own work "was not that good."
With regard to Neumann, Viana testified that sometimes Neumann did not look her in the eye when talking to her, and she felt like he brushed her off with responses he sent her. Viana also took issue with the way that Neumann responded to her vacation requests. Specifically, in 2013, Neumann took two days to acknowledge her vacation request but he acknowledged the request of Mannion, the Caucasian MCLE, on the same day. Viana also testified that aside from the 2013 incident, "a long time ago," there were a "few times" where Neumann had misplaced her hard copy vacation requests, and he would respond at the last minute. Additionally, in 2014, when Viana asked for time off around Thanksgiving, Neumann tentatively denied the request, citing KQED's rule that only two MCEs be out at a given time. Viana complained to Union representative Santangelo this was "favoritism," and testified Neumann had allowed Mannion as a third person out that same year, and Chiu, a Chinese MCE, as a third person out the prior year. Neumann later approved the request at the last minute.
Viana also testified that more than once she was given additional work to do before vacation so that Mannion would have a lighter load. It was undisputed that she was always able to complete the extra work within regular working hours. Moreover, in her declaration submitted in support of her opposition to the motion for summary judgment, Viana asserted she witnessed Miller reprimand Medina in front of others for an error that was actually an equipment failure, and she was aware most of Medina's requests for additional training were denied, while many newly hired Caucasian employees had multiple opportunities to engage in training. Viana testified she did not receive training because she is an MCLE and did not require any training.
G. Additional Evidence Regarding Medina
Although Medina is not an appellant, we summarize the evidence about her briefly as it appears probative as to Viana's harassment claim.
Like Viana, Medina had never been the subject of racial epithets, had never heard racial slurs directed at any employees, and had never seen any racially charged images at work. Evidence was presented that Medina was denied training that she requested—some of which she wanted so she could be more "valuable" and "have the flexibility to be moved around on the schedule"—while Caucasian employees were provided training. Medina testified she was always able to do her job without the requested training. Moreover, Medina testified she was denied a request for personalized business cards while a Caucasian new hire was given personalized business cards.
There was undisputed evidence that from approximately August to October 2010, Miller would go into the room where Medina was, and address her rudely by saying things like, "what are you doing? Who told you to do that? You're not supposed to be doing this." Miller would then go get coffee, come back, and be okay. After one incident around October 2010, during which Miller used profanity towards Medina, Medina testified Miller apologized, and afterwards her behavior subsided until one last incident in March 2011. During that 2011 incident, Miller yelled at Medina in front of others, including Viana, blaming her for what was actually an equipment failure. Medina testified she was the only person who was yelled at when that specific piece of equipment failed, even though it failed on Viana, Ye, Chiu, and Perry, an African-American. Medina testified that after Miller apologized for the 2011 incident (though insincerely), things improved. Miller never yelled at her directly again, but there were times when Miller stood in the back of the room Medina was in and shouted into the air that someone did not do something they were supposed to.
On this point, KQED's separate statement cited to deposition testimony from Medina, in which she stated that the verbal abuse occurred primarily on Monday mornings in the summer of 2010, and ended around October 2010. KQED also cited to copies of Medina's journals, in which Medina recounted these incidents occurred only on Monday mornings beginning around August 2010.
Medina tried to dispute KQED's proffered fact "as to vagueness of the time references, frequency and pattern of harassing conduct based on race." Medina, however, cited only to her declaration submitted in support of the opposition to the motion for summary judgment; the portion of the declaration she cites to concerning these 2010 incidents indicates they occurred in the summer.
Relatedly, Medina testified she also noticed occasions when Miller would shout into the air that something is wrong rather than directly address two other Asian MCEs, Ye and Chiu. In one of her journal entries, Medina asserted that Miller "tends to speak loudly into the air" rather than speak to Medina, Viana, Ye, or Chiu directly. Medina's journal also stated that on more than one occasion she witnessed Miller try to talk over Viana when Viana tried to explain something work-related, but Viana would not give in and the situation became tense and loud until Miller backed down.
Although KQED filed an evidentiary objection to Medina's journal entries, the trial court failed to rule on it and KQED has not renewed that objection here. Therefore, we may consider the entries. (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 100.)
Medina never heard Miller raise her voice at any of the Caucasian MCEs hired after 2013. Miller referred to several Caucasian MCEs as the A-team about a dozen times but Medina had not heard her do so for over a year preceding her June 2016 deposition. Further, there were occasions when Miller and Neumann would call the room Medina was in and speak to other MCEs (such as Viana) rather than simply speak directly to Medina, Ye, Chiu, and more recently, Chandler, who is Caucasian.
Medina testified that Miller and Neumann treated her like she was invisible. Sometimes Medina would cry at work or at home after work, and during the summer prior to her mid-2016 deposition, she saw Viana crying at work on multiple weekends. When asked why the two cried at work, Medina said it was because of things that occurred in the past and that were ongoing, people getting hired and getting weekends off before them, and their discussions about filing a lawsuit.
H. Ruling on the Motion for Summary Judgment and Appeal
The trial court granted summary judgment in favor of KQED. With regard to the harassment claims, the court found summary judgment was warranted because the evidence was undisputed that Viana and Medina were not subjected to severe or pervasive comments based on race. Neither was subjected to racial epithets by supervisors; the only comments about race were isolated and sporadic; and there was no evidence that Miller's yelling at Medina was motivated by racial animus. As for their discrimination and retaliation claims, the court found there was no evidence KQED took an adverse employment action against Viana or Medina.
Viana filed a notice of appeal, but Medina did not. After an opening brief was filed on behalf of both Viana and Medina, this court granted KQED's motion to dismiss Medina's appeal.
DISCUSSION
A. Standard of Review
A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) "The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case.' " (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller).) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review an order granting summary judgment de novo. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.)
B. Evidentiary Issues
Initially, we note KQED renews several evidentiary objections that the trial court did not rule on. Viana argues we should overrule the objections.
Neither party presents argument about the appropriate standard of review. Although the Supreme Court has not conclusively decided the issue, it previously applied a de novo standard where, as here, the court failed to rule on evidentiary objections. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535; see Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451.) Hence, we will do the same.
Turning to the objections, first, KQED objects to the statements in Viana's declaration that "the M-F shift could have been assigned to anyone, including me" and that Neumann "could also have accommodated my request to be assigned to a weekend [sic] shift." KQED also objects to a statement in Medina's declaration that KQED "refused to hire qualified minorities." We sustain KQED's objections that the declarations did not establish personal knowledge for these statements. (Evid. Code, § 702; Code Civ. Proc., § 437c, subd. (d).)
Second, KQED objects to the statement in Viana's declaration that Chiu told her "a few years ago . . . Neumann had falsely accused Chiu of pushing him." We conclude the statement is inadmissible to the extent Viana included it in her declaration to prove the truth of the matter asserted. (Evid. Code, § 1200.)
We will not consider the foregoing evidence as part of our review.
C. The Decision to Grant Summary Judgment
1. Racial Harassment
Viana challenges the grant of summary judgment on her harassment claim, arguing there was ample evidence that KQED created a hostile work environment for her. We reject the argument for the reasons set out below.
(a) Waiver
Although our standard of review is de novo, still "[t]he appellant has the burden of showing error occurred" and "must support [her] argument in the briefs by appropriate references to the record, which includes providing exact page citation." (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140; see Cal. Rules of Court, rule 8.204(a)(1)(C) ["Each brief must: . . . [¶] Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).)
Here, Viana's argument is unaccompanied by adequate record citations. Over the course of the 10 pages in which Viana's opening brief advances this argument, there are scant citations to the evidence in the record. True, there are some additional record citations to evidence in the opening brief's statement of facts and several in Viana's reply brief. But these do not clarify what evidence Viana is relying on to support her harassment claim. We need not guess at what Viana might be relying on (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16), and find the claim waived.
In any event, as discussed below, the evidence in the record provides no basis for overturning the summary judgment.
(b) Governing Law
Under the FEHA, it is unlawful for an employer to harass an employee on the basis of race. (Gov. Code, § 12940, subd. (j)(1).) "To establish a prima facie case of a racially hostile work environment, [a plaintiff is] required to show that (1) [s]he was a member of a protected class; (2) [s]he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with [her] work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [defendant] is liable for the harassment." (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
"Harassment" includes, but is not limited to, verbal harassment (e.g., epithets, derogatory comments, slurs), physical harassment (e.g., physical interference with work or movement), and visual harassment (e.g., derogatory posters) on a basis enumerated in the FEHA. (Cal. Code Regs., tit. 2, § 11019, subd. (b).) " '[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.' " (Reno v. Baird (1998) 18 Cal.4th 640, 645-646; see Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 (Roby) ["discrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace"].) That said, "some official employment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. [Citation.] . . . . Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus." (Roby, at p. 709.)
Harassment should not be confused with discourtesy or rudeness. (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787.) "[T]he FEHA is 'not a "civility code" and [is] not designed to rid the workplace of vulgarity.' " (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295 (Lyle).) "[T]he law does not exhibit 'zero tolerance' for offensive words and conduct." (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467 (Etter).)
Where harassment occurs, it is actionable only if it is " ' " 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " ' " (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.) Whether harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment must be assessed under the totality of circumstances including " 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' " (Miller, supra, 36 Cal.4th at p. 462.) "With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." (Lyle, supra, 38 Cal.4th at p. 283.)
"To be actionable, 'a[n] . . . objectionable environment must be both objectively and subjectively offensive . . . .' [Citation.] That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff's position, considering all the circumstances, would not share the same perception." (Lyle, supra, 38 Cal.4th at p. 284.) In order for a plaintiff to be successful in a claim for hostile work environment, " '[t]he plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.' " (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131 (Aguilar).) " '[W]hile an employee need not prove tangible job detriment to establish a . . . harassment claim, the absence of such detriment requires a commensurately higher showing that the . . . harassing conduct was pervasive and destructive of the working environment.' " (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)
Evidence of an employer's harassment of others may establish a hostile work environment only if the plaintiff either witnessed the third-party incidents or knew that they occurred. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.) " '[C]onduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff.' " (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 293.) When harassment does not involve the plaintiff, the plaintiff is "obligated to set forth specific facts from which a reasonable trier of fact could find the conduct 'permeated' her direct workplace environment and was ' "pervasive and destructive." ' " (Lyle, supra, 38 Cal.4th at p. 289.)
With these principles in mind, we turn to the record before us.
(b) Analysis
As indicated, a defendant moving for summary judgment "bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case.' " (Miller, supra, 36 Cal.4th at p. 460; Code Civ. Proc., § 437c, subd. (p)(2).) Here, KQED carried its burden of showing that Viana could not reasonably expect to establish severe or pervasive harassment.
KQED presented undisputed evidence that Viana never heard racial slurs directed at any employee, never saw any racially charged images or offensive gestures, and was never physically interfered with. KQED's evidence showed Viana's alleged harassment amounted to this: (1) once, Neumann stated an MCE was reading a "Chinese" newspaper; (2) though Miller also praised her, Miller would talk over Viana when she tried to explain something to Miller, used an unfriendly tone with Viana, and would turn her back and walk away while talking to Viana; (3) sometimes Miller called several Caucasian employees the "A-team"; (4) sometimes Neumann did not look Viana in the eye when talking to her, and she felt like he brushed her off with responses he sent her. As part of the totality of the circumstances, we also consider the alleged harassment directed at Medina: i.e., that Miller was verbally abusive and yelled at Medina for several months in 2010 and again in March 2011; that at some point, Medina observed Miller speak loudly into the air rather than directly address Medina, Viana, Ye, or Chiu; and that Miller and Neumann would relay phone messages to Medina through other MCEs.
KQED argues that Viana presented no evidence she knew about any of the alleged harassment involving Medina. But construed in favor of Viana, and read generously without regard to the deficiencies of Viana's appellate briefing, the record as a whole arguably gives rise to the inference that Viana was aware of at least some of the alleged harassment toward Medina.
Nonetheless, harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive working environment. (Lyle, supra, 38 Cal.4th at p. 283.) This means that, generally, " '[m]ore than an episodic pattern of racial antipathy must be proven to obtain statutory relief' " and that the incidents of harassment must " 'occur in concert or with a regularity that can reasonably be termed pervasive.' " (Etter, supra, 67 Cal.App.4th at p. 463; see, e.g., Manatt v. Bank of America (9th Cir. 2003) 339 F.3d 792, 795-799 [affirming summary judgment in favor of employer where a Chinese plaintiff heard co-workers make racially insensitive jokes on several occasions, and where they directed racially insensitive remarks and gestures at the plaintiff three times, because the actions did not occur repeatedly but instead over the course of two and a half years].)
Here, Viana presented no evidence that reasonably indicated the alleged harassment rose to a level that could be considered severe. Viana's declaration and her deposition testimony are devoid of detail concerning the frequency of the discourteous interactions with Miller or Neumann. With regard to the alleged harassment directed at Medina, Viana presented no evidence detailing her knowledge or perceptions of any of the incidents involving Medina (such as when and how she learned of each incident, or their impact on her immediate work environment) to support that the alleged harassing conduct toward Medina " 'permeated' " her own immediate workplace environment and was " ' "pervasive and destructive." ' " (Lyle, supra, 38 Cal.4th at p. 289.) Viana's silence or vagueness on these points does not demonstrate a triable issue of fact existed. (Code Civ. Proc., § 437c, subd. (p)(2) ["The plaintiff . . . shall set forth the specific facts showing that a triable issue of material fact exists"], italics added.)
Nor do the personnel management decisions made by KQED managers—i.e., the manner and content of responses to Viana's vacation requests, the denial of Medina's request for personalized business cards, the denial of Viana's and Medina's requests for shift changes, and the denial of Medina's training requests—alter the conclusion by establishing a "widespread pattern of bias." (Roby, supra, 47 Cal.4th at p. 709, citing Miller, supra, 36 Cal.4th at p. 466.)
In Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, a supervisor was having concurrent sexual affairs with three subordinates and, among other things, bestowing work-related benefits on those partners, predicating workplace advancement on sexual favors, and engaging in sexualized conduct at work related gatherings. (Miller, at pp. 466-468.) The California Supreme Court concluded there was evidence of sufficiently severe or pervasive conduct altering the conditions of the victims' employment based on their gender to survive summary judgment. (Id. at p. 468.) The court stated: "[the supervisor's] conduct constituted sexual favoritism widespread enough to constitute a hostile work environment in which the 'message [was] implicitly conveyed that the managers view women as "sexual playthings" ' or that 'the way for women to get ahead in the workplace is by engaging in sexual conduct' thereby 'creating an atmosphere that is demeaning to women.' " (Ibid.)
On this record, there is no evidence of a widespread pattern of bias. The record merely contains evidence that: once in 2013, Neumann took two days to acknowledge Viana's vacation request but he acknowledged the request of Mannion, the Caucasian MCLE, on the same day; aside from the 2013 incident, "a long time ago," there were a "few times" Neumann misplaced Viana's hard copy vacation requests and would respond at the last minute; and in 2014, when Viana asked for time off around Thanksgiving, Neumann tentatively denied the request, citing KQED's rule that only two MCEs could be out at a given time then approved the request at the last minute. Facially, these actions do not reasonably establish a "widespread pattern of bias" as existed in Miller, and Viana did not submit any evidence to support a contrary conclusion. Indeed, there was no evidence any other Asian or Latino employee had issues with vacation request approvals, and Medina testified she had no issue on that front. As to the 2014 tentative denial of her vacation request, Viana herself testified Chiu had been allowed to be a third person out in 2013.
With regard to the denial of Viana's and Medina's requests for shift changes and Medina's training requests, a reasonable person could not infer from these denials the existence of a widespread pattern of bias against all Asians and Latinos. This is so especially given KQED's undisputed evidence that: (1) Chandler's shift change request was denied as was Viana's and Medina's; and (2) Chiu was one of the two MCEs with weekends off until at least August 2015. What remains is the evidence that Medina was denied personalized business cards while a new hire was given them, and the fact that the new hires from 2013 to 2015 were Caucasian. Again, these actions do not establish a "widespread pattern of bias" as in Miller.
In sum, when construed in favor of Viana, the identified acts of harassment amounted to, at most, common acts of workplace rudeness and slights. While the conduct could be considered unfair, none of it rose to the level of being physically threatening, abusive, or humiliating, or more than occasional, sporadic, or isolated. (Lyle, supra, 38 Cal.4th at p. 283.)
Considered singly or as a whole, the identified acts of harassment are not reasonably viewed as " 'interfer[ing] with a reasonable employee's work performance' " or " 'seriously affect[ing] the psychological well-being of a reasonable employee.' " (Aguilar, supra, 21 Cal.4th at pp. 130-131.) Put another way, we are unable to conclude that a reasonable trier of fact could, on the facts shown, find the conduct of Miller and Neumann was sufficiently severe or pervasive to create a hostile work environment.
2. Race Discrimination and Retaliation
Next, Viana contends the trial court erred in granting summary judgment on her claims for discrimination and retaliation under FEHA by finding she did not suffer an adverse employment action. She argues KQED's refusal to give her weekends off, Neumann's unreasonable delays in approving or his disparately disapproving her vacation requests, and Miller and Neumann subjecting her to harassment, when considered together, amounted to a materially adverse employment action. We reject the argument.
In order to establish a prima facie case of discrimination or retaliation under the FEHA, a plaintiff must show, among other things, that he or she suffered an adverse employment action. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Yanowitz, supra, 36 Cal.4th at p. 1042.) An adverse employment action is an action, or a series of actions, that "materially affect[s] the terms, conditions, or privileges of employment." (Yanowitz, supra, 36 Cal.4th at p. 1052.) Adverse employment actions are not limited to the "so-called ultimate employment actions such as termination or demotion, but [encompass] the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement." (Id. at p. 1054; see McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 387-388 ["it is appropriate to consider the plaintiff's allegations collectively under a totality of the circumstances approach"].) That said, "[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable." (Yanowitz, supra, 36 Cal.4th at p. 1054.) Moreover, "[a] change that is merely contrary to the employee's interests or not to the employee's liking is insufficient." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)
Viewing the evidence in the manner most favorable to Viana, we conclude the trial court did not err in finding there was no evidence of an adverse employment action. KQED presented undisputed evidence that Viana was not terminated or demoted, nor had she ever been disciplined or reprimanded. There was no evidence that she was denied any opportunities for advancement, and no evidence that her job duties were significantly altered or that her career was placed in jeopardy. (See, e.g., Yanowitz, supra, 36 Cal.4th at p. 1060; Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 358.) Considered collectively and objectively, Neumann's alleged delay in acknowledging her vacation requests, his allegedly disparate disapproval of a vacation request, and the denial of her schedule change requests are actions that are reasonably likely to do no more than anger or upset an employee. (Yanowitz, supra, 36 Cal.4th at p. 1054.) Viana, however, argues her hostile work environment evidence serves "the dual purpose of establishing an adverse employment action," citing case law that supports that acts of discrimination can support a harassment claim by establishing discriminatory animus. (Roby, supra, 47 Cal.4th at p. 711.) But at this juncture of our analysis, the possible existence of discriminatory motive is not at issue; rather, the question is whether Viana suffered an adverse employment action.
As for Viana's suggestion that severe or pervasive workplace harassment may in and of itself constitute an adverse employment action, as discussed above Viana failed to carry her burden of showing that Miller's and Neuman's conduct was sufficiently severe or pervasive to create a hostile work environment. (See Yanowitz, supra, 36 Cal.4th at p. 1056, fn. 16, citing Noviello v. City of Boston (1st Cir. 2005) 398 F.3d 76, 89 ["[A] hostile work environment, tolerated by the employer, is cognizable as a retaliatory adverse employment action . . . . This means that workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases"].)
With regard to her request for a schedule change specifically, Viana argues a schedule with weekends off is an earned privilege of employment awarded based on seniority that KQED stripped her of. To bolster this, she asserts that historically MCEs with weekends off had the most seniority. Again, Viana fails to provide adequate record citations to support her claim. (Duarte, supra, 72 Cal.App.4th at p. 856.) Second, even assuming Viana is referring to the evidence that three long-time MCLE/MCEs (Djovida, Chiu, Borao) had weekends off in 2012, that evidence, by itself, fails to raise a reasonable inference that weekends off was an earned privilege awarded by KQED based on seniority. KQED presented undisputed evidence that the collective bargaining agreement did not require KQED to take seniority into account when scheduling shifts, and management believed at least two of the three long-time MCLE/MCEs who had weekends off in 2012 obtained their shifts through union negotiation. Viana presented no counter evidence. Viana claims that working weekends "forced" her to use accrued vacation leave to have any weekends off, but there is no evidence other MCLE/MCEs could take time off without using accrued leave. Viana cites to Andersen v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369 (Andersen), wherein a city had an unjustified "discriminatory policy which requires only industrially injured workers to use earned vacation time for attending medical appointments, while nonindustrially injured workers could use sick leave for such appointments." (Andersen, at pp. 1378-1379.) Here, as opposed to Andersen, KQED here is not making weekend and weekday workers use accrued leave in a different manner.
In sum, the record discloses no triable issue of material fact concerning whether Viana suffered an adverse employment action by KQED. As this is fatal to her discrimination and retaliation claims, we do not address KQED's additional argument that Viana failed to set forth evidence demonstrating that KQED's proffered reasons for denying her requests for a schedule change were pretextual, or that Viana failed to demonstrate she engaged in protected activity as necessary for her retaliation claim.
DISPOSITION
The judgment is affirmed. KQED shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Wick, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------