Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appeal from a judgment and order of the Superior Court of Los Angeles County, James C. Chalfant, Judge, Ct. No. BC350738
Law Offices of Odion L. Okojie and Odion L. Okojie; David Iyalomhe & Associates and David Iyalomhe for Plaintiff and Appellant.
Gutierrez, Preciado & House, Calvin House and Nohemi Gutierrez Ferguson for Defendants and Respondents.
CROSKEY, J.
This case arises from a summary judgment entered in favor of the respondents, County of Los Angeles, Mark Pestrella and Hector Bordas. The appellant, Joseph Addison, filed this action to recover for what he alleged was a wrongful termination based on his race. In his third amended complaint, the operative pleading herein, he alleged five causes of action: (1) defamation, (2) racial discrimination, (3) retaliation, (4) harassment and (5) intentional infliction of emotional distress.
The respondents, defendants in the underlying action, are collectively referred to as the “County.” The two individual respondents were supervisors of the appellant and, in light of the dispositive issues in this case, their interests are identical to those of the County of Los Angeles.
Addison’s defamation allegations were unclear as to whether his claim was for defamation or slander.
The trial court granted the County’s motion for summary judgment after it concluded that the record and the admissible evidence demonstrated that (1) the allegedly defamatory statements were protected by the privileges set out in Civil Code, section 47, (2) the County had a substantial legitimate reason for terminating Addison’s employment and he provided no admissible evidence sufficient to raise a triable issue of fact that such reason was pretextual or that racial discrimination played any part in his termination, (3) the County’s legitimate, non-pretextual reason for terminating his employment defeated Addison’s retaliation claim even if there was some evidence that he had five months earlier, engaged in a “protected activity,” (4) there was no evidence of any harassment of Addison by the County and (5) no factual support was presented in support of the claim for intentional infliction of emotional distress (IIED).
Addison claimed that a previous lawsuit that he had filed (about five months prior to his termination) was a protected activity for which his termination was in retaliation.
Indeed, Addison’s complaint did not even allege a proper cause of action for harassment (Gov. Code, § 12940; subd. (j)). He did not claim to have been harassed because of any protected characteristics. He alleged only that he had been harassed because of “having filed previous lawsuits.”
Our review of the appellate record fully supports the trial court’s conclusions. In addition, we find no abuse of discretion with respect to the trial court’s post-judgment order awarding attorney fees. We will therefore affirm both the judgment and the post-judgment order.
FACTUAL AND PROCEDURAL BACKGROUND
The facts that we recite are undisputed by any admissible evidence submitted by Addison. A substantial portion of the evidentiary matters offered by Addison were excluded following the County’s multiple objections.
Addison is African-American and began working for the County’s Department of Public Works (DPW) in 1990. In 1992, he became an Administrative Assistant II, a position he continued to hold until the termination of his employment that is the subject of this action.
Although the DPW had a policy that encouraged the employee use of email for business-related communications among co-workers, other County departments, government agencies and the public, Addison’s supervisors came to the conclusion that he was abusing its use. On March 8, 2004, he was instructed by one of his supervisors to address any issues or complaints that he had with respect to work instructions or assignments verbally, rather than by email. Addison’s frequent and repeated use of email for the purpose of registering complaints with respect to directions received from his supervisors and claimed mistreatment was apparently placing an undue burden on the email system.
On September 1, 2004, Addison was placed on “Performance Expectations” review due to his poor work performance, incomplete work product, failure to meet deadlines and insubordinate behavior. Such a review process required him to meet on a semi-monthly basis with two of his most immediate supervisors. He was given a list of performance goals and detailed written reports regarding his progress and deficiencies.
On or about September 8, 2004, Addison was suspended for three calendar days on the ground that he had: (1) failed to meet deadlines, (2) failed to use the email system in an appropriate and professional manner, (3) failed to follow instructions and direct orders from his supervisors and (4) had engaged in discourteous treatment towards his supervisors. On February 2, 2005, Addison filed a lawsuit (Super. Ct. Los Angeles County No. BC328195) against the County, alleging several incidents of racial discrimination and retaliation.
This was Addison’s second lawsuit against the County. It was resolved by summary judgment in favor of the County which was affirmed on appeal on May 29, 2008. We have taken judicial notice of the opinion in that case (B193845) which was decided by Division One of this District. The first lawsuit was filed in 1999, alleging race discrimination, harassment and retaliation. The County obtained a summary judgment in April of 2001, but Addison did not appeal. The case before us is Addison’s third action against his now former employer.
As we have taken judicial notice of the appellate opinion which disposed of the above-described action, we incorporate its review of Addison’s employment history with the DPW prior to March 2005 and we have no need to repeat it here. Beginning in that month, however, Addison was repeatedly admonished for his continuing abuse of the email system to complain about work assignments and claimed unfair treatment at the hands of his supervisors. On March 16, 2005, he filed a grievance alleging acts of disparate treatment, retaliation and hostility by his supervisors, citing several meetings they had had with him during the preceding two weeks to discuss performance issues. On March 23, 2005, Addison was notified of DPW’s intent to suspend him for six calendar days based on the same grounds that had led to his suspension in September 2004. A meeting scheduled to discuss this matter was continued to May 2, 2005 in order to accommodate Addison’s jury service duties. He did not attend the rescheduled meeting, however, apparently due to a conflicting doctor’s appointment.
The proposed six-day suspension was never imposed. Instead, due to later events, it was incorporated into a letter informing Addison of DPW’s intent to terminate his employment.
The relevant events that followed were succinctly summarized by the trial court in its written decision on the County’s motion for summary judgment. We set them forth verbatim:
“On April 18, 2005, [the] respondent [Mark] Pestrella became the new Head of the Watershed Management Division of DPW. Pestrella had never worked with Addison before, but knew of him. At a general division meeting that day, Pestrella said he wanted employees to voice [concerns] to him before going to upper management.
“On April 25, 2005, [Jason] Pereira [Addison’s direct supervisor] met with Addison to discuss his work performance. Addison was loud and would not let Pereira complete his sentences. At one point, Addison stood up abruptly to walk out. Pereira said the meeting had not ended, and Addison stood too close to him. Pereira felt threatened and concluded the meeting.
“That same day, Addison approached Pestrella during business hours to meet with him for a discussion of [his] work-related grievances. Pestrella told Addison that he knew who he (Addison) was because he had been briefed by management before taking the job. He was aware of Addison’s prior complaints, grievances, and lawsuits, and repeated that he had an open-door policy. Addison describes the meeting as business-like and cordial, involving a pleasant exchange about Pestrella’s personal background. Addison does not believe that he was ‘intense’ or ‘nervous,’ but Pestrella disagrees. Pestrella reminded Addison that he should make an appointment for future discussions.
“On May 1, 2005, [the respondent] Bordas became the Head of Research and Administrative Support section of the WMD. Bordas had never worked with Addison previously. [¶] On May 2, 2005, Addison sought to meet with Pestrella ‘to lodge more complaints.’ Pestrella, who was busy, asked Addison to make an appointment. According to Pestrella, Addison was ‘nervous and agitated.’ Addison denies having this emotional state. Addison made an appointment for May 3, 2005 at 10:30 a.m.
“Addison arrived for the May 3, 2005 meeting before Pestrella was ready to meet him. He waited with a large briefcase outside of Pestrella’s office. Shortly thereafter, Bordas also appeared to attend the meeting. At this point, Bordas had been at his position for only two days, and did not know Addison. Bordas followed Addison into Pestrella’s office. Upon seeing Bordas, Addison initially refused to meet without his own ‘representative.’ According to Pestrella, he explained that Bordas was present because he was the new section head, and should be present when an employee wished to voice a grievance. He also would help prevent any misunderstanding. Addison denies this. He also says that Pestrella denied his request to have a union representative at the meeting.
“The meeting continued. Addison told Pestrella more than once during the meeting that this would be ‘the last time’ he would approach Pestrella. Then he said ‘I need to show you something before I kill you.’ Both Pestrella and Bordas heard this comment. Pestrella asked what he meant. Addison stared a few seconds and mumbled that the statement was ‘a figure of speech.’ Then he began to speak nonsensically. When Addison left, they shook hands. Addison’s hand was cold and clammy.
“Addison’s version of the comment is that he stated: ‘I am not going to harm you and you are not going to harm me, so why can’t you and I have the meeting alone, just as we did on April 25?’ After this innocent question, Pestrella asked Addison: ‘Are you going to kill me?’ Addison was shocked at this deliberate misstatement of what he had said. He reiterated in a calm voice: ‘No, I am not going to kill you, that was not what I was saying.’ Addison denies telling Pestrella that this was the last time he would talk to Pestrella.
“The County has a Zero Tolerance policy for workplace violence, which requires employees and supervisors to report threats of violence to appropriate supervisors immediately. Pestrella and Bordas reported [Addison’s] threat to Zsa Zsa Maxwell (Maxwell), head of Advocacy/Discipline section, Human Resources Division. They reported what they believed to be true. Nobody instructed Pestrella or Bordas to make up their allegation.
“Immediately thereafter, Maxwell met with Addison, Pestrella and Bordas to determine whether Addison had made a threat against Pestrella. Addison smirked and refused to answer any questions from Maxwell about the incident. Addison denies that he ‘smirked’ at Maxwell, and says he invoked his administrative right to remain silent[,] asked her to leave the door open. [Addison claims that Maxwell refused to do so and] shoved him.
“Pursuant to County Policy, Maxwell placed Addison on administrative leave without pay, due to what she believed to be exigent circumstances. Addison was escorted by Maxwell and Bordas to the [DPW] lobby. [Addison] called the Alhambra Police Department to report that he had been accused of threatening a co-worker. Addison ‘suspected that I was very likely being set up by [respondents], in order that I be searched before I left the lobby of [DPW], so that defendants could not later claim that I had any weapon, or means to carry out the alleged violent threat.’
“Officer Elizalde searched Addison and spoke with Maxwell and John Cherep (Cherep), DPW Division Chief of Human Resources Division, about the incident. Thereafter, pursuant to County policy, Maxwell completed a security incident report and gave it to Officer Alex Conchola, Division of Security. At Maxwell’s request, Pestrella and Bordas wrote statements concerning the incident.
“Pestrella notified Addison’s supervisor, Pereira, to be cautious of any strange activity and to notify him if Addison appeared at the DPW. Pestrella did not provide Pereira with any details of the incident, and this was the only communication regarding the incident that Pestrella had with Pereira.
“As part of her duties, Maxwell discussed the incident with Division Chiefs Cherep and Charles Adams (Adams). [¶] Following up on his investigation, Officer Elizalde spoke with Pestrella on May 5, 2005 about the incident. Elizalde also followed up with Bordas on May 10, 2005.
“As a matter of business necessity and out of concern for the safety of DPW employees, Maxwell instructed Keisha Lakey-Wright (Lakey-Wright), Lead Advocate of the HR division at the time, to gather Pestrella and Bordas’s statements, and to assist her in drafting a letter notifying Addison that he was being placed on administrative leave without pay pending an investigation.
“On May 3, 2005, Lakey-Wright left a telephone message for Addison that he was not to report to work the next day because he had been placed on leave without pay. On May 4, 2005, Addison received formal notice of leave without pay in a letter. Pursuant to Civil Service Rule 18.01, the letter notified Addison that he was scheduled to attend a due process meeting with [ ] Adams, wherein he would have the opportunity to explain his version of the incident, in person or in writing, or through a representative, by May 10, 2005. As part of DPW practice, a copy of this letter was sent to Michael Henry, Director of Personnel.
“Addison never confirmed whether he would attend the meeting, and in fact did not appear for a meeting that day. Instead, he filed a tort claim under the Tort Claims Act for ‘defamation’ and IIED on May 12, 2005.
“On May 18, 2005, the DPW notified Addison of its intent to discharge him based upon poor work performance, insubordinate behavior, failure to follow work instructions, discourteous treatment of other DPW employees, and his threatening and intimidating behavior of April 25th and May 3rd. In the letter, Addison was notified that a due process meeting would [be held] on May 26, 2005 at the DPW, and was again given the option of responding in writing, and sending the response to Adams by May 26th.
“During this time, out of concern for the safety of DPW employees, Jeffrey Howard (DPW Section Head of the Return to Work Section), wrote a letter for Cherep to a Dr. Mark Imhoff, Addison’s psychiatrist, to determine whether Addison was suffering from a mental condition based upon the May 3rd incident. As a matter of business necessity and concern for the safety of DPW employees, Barbara Knighton, DPW Chief Personnel Management, assisted in ascertaining whether Addison was suffering from a mental condition based upon the May 3rd incident, because there were potential disability-related issues and safety concerns regarding his mental state.
“Addison was unable to attend the May 26, 2005 [meeting]. DPW received a letter from Addison’s psychiatrist, Dr. Kent Harris, stating that Addison could not attend the meeting due to medical reasons. The hearing was rescheduled to June 27, 2005. On June 20th, DPW was notified by Dr. Mark Imhoff, Addison’s treating psychologist, that he could not attend the [rescheduled] meeting due to ‘intense emotional distress and exacerbated psychological symptoms.
“Addison was thereafter advised of DPW’s intent to move forward, and of his options in lieu of attending a meeting, including his right to respond in writing or through a representative. Addison did not attend a hearing or have a representative present, nor did he present a written response.
“On July 12, 2005, Addison was notified that he was discharged from his position because of poor work performance, insubordinate behavior, failure to follow work instructions, discourteous treatment of other DPW employees, and his threatening and intimidating behavior.”
This ends the trial court’s verbatim summary of relevant events.
On March 26, 2006, Addison filed with the Department of Fair Employment and Housing a complaint for, inter alia, termination, harassment, retaliation, and denied accommodation. He was issued a right to sue letter on March 27, 2006. On April 13, 2006, he filed this action. The County responded in due course with a motion for summary judgment, arguing that, based on the undisputed facts outlined above, there was no material issue of fact to be tried and the County was therefore entitled to judgment. As we have already indicated, the trial court sustained multiple evidentiary objections to most of Addison’s largely irrelevant and argumentative opposition and, on May 14, 2007, granted the motion.
We have reviewed the multiple objections raised by the County which were sustained by the trial court and find no abuse of discretion in its ruling. Moreover, Addison did not discuss in his opening brief or present any argument concerning the trial court’s evidentiary rulings. We therefore deem the issue to have been abandoned.
Arguing that Addison’s prosecution of his FEHA claims was “unreasonable, frivolous, meritless or vexatious,” the County moved for an award of attorney fees. Finding that Addison’s FEHA claims were groundless, the court, by a post-judgment order on October 1, 2007, awarded the County $73,734 as its reasonable attorney fees.
Addison filed a timely appeal from both the judgment (B201007), and the post-judgment order awarding fees (B203213). We have ordered that these two appeals be consolidated and they are resolved in this single decision.
CONTENTIONS
Addison contends that with respect to his FEHA and IIED claims, there was sufficient evidence presented to raise material issues of fact and that summary judgment was improper. With respect to his claim for defamation, Addison argues that the trial court improperly held that the County was protected by a privilege. As to the attorney fee award, Addison contends that the case that he presented had arguable merit and the fee award was therefore improper.
The County disputes each of these contentions and argues that the trial court ruled correctly on each issue.
DISCUSSION
1. Standard of Review
“ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact 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, 850.) A declaration which simply contradicts a prior discovery admission is not normally sufficient to raise a triable issue of fact. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)
We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) Attorney’s fees are awardable to the prevailing defendant under FEHA “ ‘upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” (Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766 [Linsley].) An award of attorney’s fees under FEHA is reviewed for abuse of discretion. (Id. at pp. 765-766.)
2. Defamation
a. The Report to the Police and Communication Required By Civil Service Regulations Were Absolutely Privileged
Civil Code, section 47, subdivision (b) provides for an absolute privilege for statements made in the initiation, or in the course of, any official proceeding. As the privilege is absolute, the defendant’s motives in making such statement are not relevant. Even “willfully false statements” are protected. (Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 927.) This rule includes the reporting of a crime to the police even if the report is made in bad faith. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) Thus, to the extent that Addison’s claim is based on statements to the Alhambra Police Department regarding Addison’s threatening behavior, the privilege applies. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112.)
In addition, Civil Code, section 47, subdivision (b) extends the privilege to “any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of the Title 1 of Part 3 of the Code of Civil Procedure.” Here, the Los Angeles County Civil Service Rules establish a procedure for discharging a County employee like Addison. That process begins with the gathering of information to support a discipline decision. Then, a notice of intent to discharge is prepared, laying out the reasons for the proposed action, and affording the employee a chance to oppose the discharge. If the agency goes forward with the discharge, the employee has a right to a hearing before the Civil Service Commission. Decisions by the Civil Service Commission are reviewed by writ of administrative mandate under Code of Civil Procedure section 1094.6.
Case law recognizes that such procedures constitute official proceedings under section 47, subdivision (b). For example, since a store manager’s complaint about a police officer’s conduct led to department proceedings to discipline the officer, the privilege barred any claim by the police officer based on the complaint. (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55.) “Procedures for the discipline, suspension, or removal from office of police officers of the City of Los Angeles are specified in . . . the Los Angeles City Charter and . . . the Los Angeles Administrative Code, and are therefore official proceedings authorized by law.” (Id., at p. 55.) The fact that the statement prompted the proceeding rather than being uttered as part of it did not matter. “But the California authorities have held that ‘a communication to an official administrative agency, which communication is designed to prompt action by that agency, is as much a part of the “official proceeding” as a communication made after the proceedings have commenced.’ ” (Ibid; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1439-1440.)
In the case before us, Pestrella and Bordas each believed that Addison uttered threatening words during their meeting with him on May 3, 2005. In compliance with the County’s Policy of Zero Tolerance for Workplace Violence, they immediately reported the statements to Zsa Zsa Maxwell, the Department’s Head of Discipline and Advocacy Section/Human Resources Division. Maxwell requested a written statement from Pestrella and Bordas and then filed a formal complaint with the County Division of Security. Pestrella and Bordas were instructed to write incident statements and give them to HR Deputy Director Charles Adams, and HR Division Head John Cherep as part of an internal investigation into Addison’s conduct. The only individuals informed of the conduct were those individuals interested therein in their capacities as officials or employees in the HR Division. No other individuals were informed of the incident.
In addition, the County corresponded with Addison and his doctors, including the May 3, 2005 Lakey-Wright telephone message for Addison, the May 4, 2005 formal letter to Addison, and the letter to Dr. Mark Imhoff.
All of these communications were absolute by privileged under Civil Code, section 47, subdivision (b).
b. Other Communications Were Subject to a Qualified Privilege
Civil Code, section 47, subdivision (c) provides for a qualified privilege when the communication is made without malice to a person interested therein (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give information. Communications by employers about employee conduct, made without malice to persons who have a common interest or a need to know as a matter of business necessity are presumptively privileged. (Manguso v. Oceanside Unified School District (1984) 153 Cal.App.3d 574, 580-581.)
Each of the individuals who provided or received information regarding the May 3, 2005 incident were interested and did so in conjunction with internal and police investigations and disciplinary letters pursuant to the Civil Service Rules. Pestrella and Bordas witnessed and reported Addison’s conduct and Maxwell conducted the investigation. Cherep and Adams were Human Resources Division leaders who needed to be apprised of possible threatening conduct by employees so that they could address it.
Barbara Knighton, Chief Personnel Officer, and Jeff Howard, Head of the Return to Work Section were interested parties because they were charged with determining if Addison posed a threat to himself or others should he return to work. Further, their written communications to his doctor were necessary to make such a determination.
Keisha Lakey-Wright, the former Lead Advocate, was apprised of the incident because she was charged with drafting the disciplinary letters to Addison on behalf of her superiors, Maxwell, Cherep, and Adams. The letters complied with Civil Service requirements. Thus, Lakey-Wright was an interested party who needed to know the facts as a matter of business necessity. Michael Henry, the County’s Director of Personnel and the Civil Service Commission, copied on the termination letters pursuant to County practice of apprising these individuals of discharges, were certainly interested parties.
Pereira, the supervisor with whom Addison admits he had many disagreements over the course of several months, was simply warned by Pestrella to be cautious of any strange activity and to report to him immediately if Addison returned to the building. Pereira was an interested party because his safety was a concern as he was Addison’s supervisor. Even then, Pestrella did not tell Pereira the details of the May 3, 2005 incident. County Security was, of course, notified out of concern for the safety of DPW employees.
Thus, any and all communications regarding the May 3, 2005 incident were made by interested parties to interested parties on a need-to-know basis and as a matter of business necessity. In order to overcome the qualified privilege, Addison would be required to provide specific facts of actual malice or malice in fact; such as “a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” No such evidence was ever presented.
3. Racial Discrimination
FEHA prohibits discriminatory employment practices. It is an unlawful employment practice “[f]or an employer, because of the race, . . . of any person, . . . to discharge the person from employment . . . or to discriminate against the person in . . . terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)
The courts have adopted a three-stage burden-shifting test for trying claims of discrimination. At trial, the plaintiff has the initial burden to establish a prima facie case of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The plaintiff must provide evidence that “(1) [plaintiff] was a member of a protected class, (2) [plaintiff] was qualified for the position . . . sought or was performing competently in the position . . . held, (3) [plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) Once the plaintiff has established a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact that its action was taken “for a legitimate, nondiscriminatory reason.” (Id. at pp. 355-356.) It does not matter if the employer’s reasons were not wise or correct, as long as they were nondiscriminatory. (Id. at p. 358.) Once the employer has met the burden, the presumption of discrimination disappears. “The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Id. at p. 356.) “The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.” (Ibid.)
Our Supreme Court has yet to decide how the shifting burden affects motions for summary judgment, when the defendant wishes to challenge plaintiff’s prima facie case. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 356-357.) However, it is clear that if the defendant moves for summary judgment by setting forth competent, admissible evidence of a nondiscriminatory reason for its decision, the burden then shifts to the plaintiff “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Id. at p. 357.) “It is not enough for the employee simply to raise triable issues of fact concerning whether the employer’s reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for . . . discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) “ ‘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. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for the [the asserted] non-discriminatory reasons.” ’ ” (Ibid.)
“ ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” ’ [Citation.] Circumstantial evidence of ‘ “pretense” must be “specific” and “substantial” in order to create a triable issue with respect to whether the employer intended to discriminate’ on an improper basis.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) An “ ‘employer would be entitled to judgment as a matter of law . . . if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.’ ” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 362.) However, with direct evidence of pretext, “ ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer’s discriminatory intent to move past summary judgment.’ [Citation.]” (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.)
The law will “hold employers responsible where discriminatory or retaliatory actions by supervisory personnel bring about adverse employment actions through the instrumentality or conduit of other corporate actors who may be entirely innocent of discriminatory or retaliatory animus.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 116.) “Imputation of . . . animus will be justified by any set of facts that would permit a jury to find that an intermediary, for whatever reasons, simply carried out the will of the actuator, rather than breaking the chain of causation by taking a truly independent action.” (Id. at pp. 114-115, fn. 14.)
This record demonstrates that Addison cannot even establish a prima facie case. While he is a member of a protected class, he produced no evidence whatsoever that he was terminated because of his race. Moreover, assuming arguendo, that he had made a prima facie showing, it is beyond dispute that the County had legitimate reasons for terminating his employment.
The record clearly shows that Addison, over an extended period of time, (1) had bad performance evaluations, (2) had repeatedly failed to timely complete assignments, (3) was insubordinate to his supervisors and (4) had continued to use DPW’s email system to voice his complaints about his work assignments and treatment despite repeated admonishments to cease such activity. Addison had at least one prior suspension and was facing another. Coupled with these facts are Addison’s attitude and conduct in meetings on April 25, 2005, and May 2-3, 2005. Even without the death threat, the county had abundant legitimate reasons to terminate Addison.
Pestrella and Bordas contend that Addison in the May 3, 2005, meeting, made a death threat. Addison disputes whether he threatened Pestrella’s life. But he admits that he said words to the effect “I’m not going to harm you.” This alone is a bizarre statement in an employer-employee interaction. Moreover, Addison refused to answer questions posed by Maxwell during her investigation. Finally, Pestrella and Bordas barely knew Addison and were not the DPW decision-makers on firing Addison; Adams apparently was. The County was entitled to rely on the death threat investigation in making its termination decision.
To avoid summary judgment, an employee claiming discrimination must 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. (Horn v. Cushman & Wakefield Western, Inc., (1999) 72 Cal.App.4th 798, 806-807.) The plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 68-69.) Circumstantial evidence of pretext must be specific and substantial in order to create a triable issue with respect to whether the employer intended to discriminate on an improper basis. (Id. at p. 69.)
An inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360-361 .)The pertinent statues do not prohibit lying, they prohibit discrimination. (Id. at p. 361.) Proof that an employer’s proffered reasons are unworthy of credence may support a circumstantial case of discrimination, because it suggests the employer had grounds to hide its true reasons. (Ibid.) Plaintiff is required to submit evidence supporting a rational inference that “intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s action.” (Ibid.; italics in original.) “Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Ibid.)
Addison has provided no admissible evidence of racial animus. While he argues that the allegation of death threat was untrue, he admits that he said something about “not harming” Pestrella. He also must concede that the threat was reported by employees who barely knew him. Even if Addison is correct that Pestrella and Bordas misunderstood what he said, their report and the subsequent investigation were not a pretext for racial hostility. Addison also has no evidence that the other proffered reasons for termination are false. (See Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 148 [judgment as matter of law for employer where there is weak evidence of falsity of employer’s reasons for termination and abundant evidence of nondiscriminatory reason for employer’s decision].) Moreover, Addison must have evidence of racial discrimination in addition to a genuine issue that the employer’s reason for termination was false. As already noted, he has produced no such evidence. Thus, Addison’s racial discrimination claim is totally without merit.
4. Retaliation
To allege a prima facie case of retaliation, a plaintiff must allege he engaged in a protected activity, he was thereafter subjected to adverse employment action by his employer and there was a causal link between the two. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1185; accord, Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.)
The burden shifting analysis described above applies equally well to FEHA retaliation cases. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 216.) That is, after a prima facie showing of retaliation has been made, the defendant must provide a legitimate reason for the claimed retaliatory act (in this case, termination). If the defendant presents evidence of such a reason, then the plaintiff must provide evidence that the reason was pretextual.
Addison claims that he was terminated because of the lawsuit that he had filed on February 2, 2005 (i.e., the second of his three suits). The filing of such an action would certainly qualify as a protected activity. But he was already subject to pending disciplinary action at the time that he filed that suit.
We agree with the County’s argument that it was not required to start anew on the progressive discipline path simply because it had discovered that Addison had filed a lawsuit. (See Slattery v. Swiss Reinsurance America Corp. (2nd. Cir. 2001) 248 F.3d 87, 95 [“[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise”], cert. den. (2001) 534 U.S. 951.) The County suspended Addison on September 8, 2004. Although the March 23, 2005 letter of intent to impose a second suspension came after his February 2 complaint was filed, that letter reiterated the same grounds as the first suspension of September 8, 2004 and indicated that his conduct had not improved despite the County’s efforts to help him improve. Further, the grounds for the March 23, 2005 intended suspension were simply later incorporated into the July 12, 2005 letter of discharge. Moreover, the weekly performance meetings were imposed in September, 2004 and had been ongoing before and after Addison filed his second action. Finally, the policy against use of email also pre-dated the filing of that suit. Thus, there was no evidence to establish a causal link.
Most significantly, however, the record is clear (as discussed above in the section on discrimination) that the County had legitimate, non-pretextual reasons for terminating Addison’s employment. This alone is sufficient to doom his claim for retaliation.
5. Harassment
Govt. Code, section 12940, subdivision (j) prohibits harassment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
Addison has alleged that he was harassed “subsequent to filing previous lawsuits.” His complaint does not allege harassment because of any protected characteristic. There is no such thing as illegal harassment because of “having filed previous lawsuits.” His cause of action for harassment does not even state a claim.
Furthermore, to the extent that Addison is trying to allege a racial harassment claim, harassment consists of conduct such as (1) epithets, derogatory comments or slurs; (2) physical harassment (e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement) when directed at an individual; and (3) visual forms of harassment, such as derogatory posters, cartoons, or drawings. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464; Cal. Code Regs., Title 2, § 7287.6.) Petty annoyances and trivialities, which are not objectively sexual or racial in nature, will not support a claim of harassment. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1124.)
The only evidence that remotely could constitute harassment is that Pereira yelled at Addison in a loud tone and told him to stop using email for “job submittal issues,” and told Addison that he would be suspended again, would receive poor performance evaluations, and terminated if he continued to use email for “job submittal.” This is too trivial to be harassment of any kind, and certainly is not racial harassment.
6. Intentional Infliction of Emotional Distress
To the extent Addison’s emotional distress claim is based upon the same conduct as the defamation claim, Civil Code section 47 provides immunity regardless of the particular cause of action alleged. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [privilege applies to all torts except malicious prosecution]; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808 [applying section 47 privilege to IIED claim].) To the extent that his IIED claim is based upon the same conduct as the FEHA claims, it must fail for the same reasons as did those claims. To the extent the IIED claim is based on other conduct, it is barred by the exclusivity of the workers compensation remedy. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [“when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability”].)
In any event, there is no evidence to establish the traditional elements of the tort. As essential element of an IIED claim is “outrageous conduct beyond the bounds of human decency.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [Janken].) “Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must necessarily be expected to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.” (See CACI 1602.)
“In evaluating whether the defendant’s conduct was outrageous, it is ‘not . . . enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.’ . . . [Citation.]” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Even if Addison could prove that County personnel engaged in unkind acts towards him, at the most, those acts would only qualify as mere indignities and petty oppressions. They would not, as a matter of law, qualify as conduct beyond the bounds of human decency. Every insult and indignity is not a basis for litigation. Although Addison was no doubt angry about being terminated, those types of personnel management decisions, even if incorrect, are not beyond the bounds of human decency. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 80 [managing personnel is not outrageous conduct beyond the bounds of human decency but rather conduct essential to the welfare and prosperity of society].)
7. The Trial Court Properly Awarded Attorney Fees with Respect to the Defense of Addison’s FEHA Claims
The trial court has the discretion to award reasonable attorney fees to a prevailing defendant in a FEHA case if the plaintiff’s action was “unreasonable, frivolous, meritless or vexatious” or if “plaintiff continued to litigate after it clearly became so.” (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421-422 [Christiansburg].) The court does not have to find that the plaintiff acted with subjective bad faith to justify an award of fees. (Linsley, supra, 75 Cal.App.4th at p. 766.) Due to the symmetry between California and federal anti-discrimination statutes, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under the Act. (See, e.g., Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921 [Bond].)
A case is without merit when it is groundless or without foundation. A court cannot make this finding merely on the fact that the plaintiff ultimately lost. “In applying these criteria, it is important that a [court] resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Christiansburg, supra, 434 U.S. at p. 421-422.) The court continued: “[e]ven when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.” (Ibid.)
In Linsley, supra, 75 Cal.App.4th 762, the court upheld an award of defendant’s attorney’s fees when the plaintiff pursued a FEHA claim despite the fact that he had executed a previous release of all claims including discrimination claims, and this fact was communicated to his attorney; yet the plaintiff nevertheless continued to pursue his unsuccessful claim.
In Bond, the court upheld an award of attorney’s fees. The jury found in favor of defendant on the discrimination claim and in favor of plaintiff on the breach of contract claim. The trial court found that plaintiff’s case was frivolous, vexatious and without merit. This was evidenced by the fact that the jury awarded less than $2,000 on the claim, where the defendant had made a CCP § 998 offer which was almost three times that amount. The trial court concluded that forcing the defendant to go through several days of trial was needless and “totally unfair.” (Bond, supra, 50 Cal.App.4th at p. 924.)
California courts have generally awarded fees only in situations wherein either the plaintiff’s conduct was egregious, or his or her case was patently baseless for objective reasons. (See Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389-1390.)
In this case, the trial court determined that Addison’s case was “utterly lacking in evidentiary support,” and went on to award $73,734 in attorney fees. The trial court found that “there is clearly no merit to any of plaintiff’s claims.” With regard to Addison’s defamation claim, the court found that the defamation claim was “barred by the litigation privilege.” With regard to the racial discrimination claim, the court found that plaintiff “cannot establish a prima facie case” of racial discrimination and had “no evidence that he was terminated because he is black,” and further that “there is abundant and uncontroverted evidence that he was performing his job inadequately.” The court also found that Addison “has no evidence of racial animus.”
With regard to the retaliation claim, the trial court found that “[the County] had legitimate, non-retaliatory reasons for taking the actions they did,” and that plaintiff “has presented no evidence of pretext.” With regard to the harassment claim, the court found that the complaint “doesn’t even state a claim.” Finally, the court found that “there is no merit to [the complaint’s] cause of action for IIED.”
During litigation, Addison was made aware that his claims were frivolous. (See Moss v. Associated Press (C.D. Cal. 1996) 956 F.Supp. 891, 894-895.) During the course of litigation in this case, Addison admitted that he had said “I am not going to harm you and you are not going to harm me.” The trial court noted that “[t]his alone is a bizarre statement in an employer-employee interaction.” Addison also admitted that the only people who were told of the threats were DPW employees who needed to know. So Addison always knew there was no publication outside of the County. Addison admitted that he disobeyed orders not to use the email system. He further admitted that he had been suspended for these same violations and that he had a second suspension pending.
The court in Linsley dealt with the question at issue here about the defendant’s ability to recover fees from an unsuccessful plaintiff. As in Linsley, Addison’s case at the outset was based on facts that could not support claims. For instance, the January 4, 2007 letter, sent to Addison’s counsel cited Addison’s history in suing the County and why his current suit lacked merit.
Moss v. Associated Press, supra, 956 F.Supp. 891 also supports the award of attorney’s fees in this case. In that case, as here, the plaintiff made admissions that showed legitimate non-discriminatory reasons existed for the defendant-employer’s conduct and, thus, that plaintiff’s case was frivolous. (Id., at pp. 894-895.) Moss supports the proposition that discovery procedures can create notice and establish that a party knew or should have known of the frivolous or meritless nature of his case. (Ibid.) Addison should have never pursued the claim, or at the very least, discontinued its pursuit when all discovery failed to produce evidence to support his allegations.
DISPOSITION
The judgment (B201007) and post judgment order awarding attorney fees (B203213) are affirmed. The County shall recover its costs on appeal.
We Concur: KLEIN, P. J. KITCHING, J.