Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC328195, Jane L. Johnson, Judge.
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 Defendant and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Joseph Addison appeals from a summary judgment in favor of defendant County of Los Angeles in his action for damages for racial discrimination and retaliation under the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.). On appeal, he claims there is a triable issue of material fact as to whether he was the victim of racial discrimination and retaliation, and the trial court erred in awarding defendant attorney’s fees and costs. We affirm.
Code of Civil Procedure section 437c, subdivision (c), provides: “The 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” The papers submitted by the parties must set forth evidentiary facts. (Sheppard v. Morgan Keegan & Co. (1990) 218 Cal.App.3d 61, 67; see also Miller v. Bechtel (1983) 33 Cal.3d 868, 874.) “Mere conclusions of law or fact are insufficient to satisfy the evidentiary requirements for a summary judgment.” (Perkins v. Howard (1991) 232 Cal.App.3d 708, 713; Sheppard, supra, at p. 67.) Additionally, any evidence on which the plaintiff wishes to rely must appear in her separate statement of undisputed and/or disputed facts. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) If it does not appear there, “‘it does not exist.’” (Ibid.)
Failure to Promote
Plaintiff is an African American man. He received a bachelor’s degree in general studies and a Bachelor of Arts degree with a major in urban and regional planning from the University of Southwestern Louisiana in 1985. He received a Master of Business Administration degree with a specialization in financial management from National University in 1999. He received a juris doctor degree from Whittier College School of Law in 2004. He received a Master of Arts with a major in counseling psychology from National University in 2005.
Plaintiff was hired by defendant’s Department of Regional Planning as a Regional Planning Assistant II in 1990. In 1991, he transferred to the Department of Public Works (DPW) as an Engineering Testing Aide II in the Materials Engineering Division. In 1992, he became an Administrative Assistant II (AA II) in the Environmental Programs Division. In 1995, he transferred to the Construction Division, Liaison Section as an AA II (Liaison Engineer). As an AA II, he transferred to the Environmental Programs Division in 1996 and to the Watershed Management Division in 2000.
In 1999, plaintiff filed a lawsuit against defendant alleging race discrimination, harassment and retaliation. Defendant obtained a summary judgment in April 2001. Plaintiff did not appeal from the judgment.
In July 2002, plaintiff applied for the position of Management Specialist II (MS II). MS II is a high level position requiring a demonstrated ability to supervise subordinate employees. The promotional examination for MS II consists of two parts: a rating based on education and experience and an Appraisal of Promotability (AP). The AP rating is based on performance records, the demands of the higher position, the scope of previous assignments, and the observations and judgments of management. The AP raters assess each candidate by assigning a grade and adding comments in seven categories. The score on each part of the examination is then scaled, and the two are combined for an overall score.
The MS II job brochure specifies that the promotional examination “will consist of an evaluation of training and experience on application information weighted 25% and an Appraisal of Promotability weighted 75%. The Appraisal of Promotability will evaluate such facts as knowledge and skills, personal and public relations, productivity, written and oral communications, adaptability, dependability and supervision.”
Candidates for promotion are grouped into “bands” based on their overall scores, with band 1 being the highest. If there are fewer than five candidates in a band, the band is merged with the band below it. Candidates are not ranked within a band. A certification list is prepared listing the candidates eligible for promotion in each band. Under Civil Service Rule 11.01(E), promotions must be made from the highest band containing eligible candidates. The certification list is valid for one year but can be extended.
At the time plaintiff applied for the MS II position, his supervisor was Steven Ross (Ross). Ross reviewed plaintiff’s three most recent performance evaluations and considered his skills and work product. He rated plaintiff well qualified in six categories. He rated plaintiff qualified in the supervision category, because plaintiff did not have supervisory duties. He gave plaintiff an AP score of 80. Assistant Deputy Director of the Watershed Management Division Rod Kubomoto reviewed and approved plaintiff’s score.
According to Ross, he was not aware of any complaints of discrimination or retaliation made by plaintiff prior to completing plaintiff’s AP score. Plaintiff wrote a memorandum to Ross in 2001 complaining of his treatment with respect to medical leave. In the memorandum, he mentioned that he was being discriminated and retaliated against due to his 1999 lawsuit against defendant. According to Ross, he did not consider the 2001 memorandum when rating plaintiff.
Plaintiff received an education and experience rating of 100. On January 28, 2003, the Department of Human Resources (HR) informed plaintiff that he received a final rating of 85. This placed plaintiff in band 3 and ineligible for promotion.
On February 9, 2003, plaintiff appealed his final rating. On February 25, HR informed plaintiff that the MS II examination had been reweighted. The education and experience rating and the AP score would each be worth 50 percent of the examination. As a result, plaintiff’s final rating rose to 90, placing him in band 2. However, there were fewer than five people in band 1, so band 1 was merged with band 2. As a result, there were 14 people in band 1 who were eligible for promotion to MS II, including plaintiff.
HR denied plaintiff’s appeal of his final rating on June 13, 2003. On June 19, plaintiff appealed HR’s decision to the Civil Service Commission. His appeal was denied on August 27.
The MS II certification list expired on February 25, 2004. It was extended through October 2004. From that list, four people were selected for promotion to MS II: two Caucasian men, a Caucasian woman and a Filipino woman.
Dawnna Lawrence (Lawrence), an African American woman, was Chief of Administrative Operations for DPW. She did not work with plaintiff. She stated in her declaration that she was not familiar with him, was unaware of his ethnic background or his 1999 lawsuit against defendant. She further stated that these factors did not affect her decisions to promote two other candidates to MS II positions.
Lawrence selected Candidate No. 29 for promotion to MS II in April 2003. According to Lawrence, at the time the certification list was first issued, the highest placed candidates on the list were interviewed. Lawrence determined that Candidate No. 29 was the superior candidate for a position responsible for overseeing the Procurement Section of the Administrative Service Division. After the MS II examination was reweighted, Candidate No. 29’s position on the certification list dropped. At the time Lawrence interviewed candidates for the position, she was unaware of this. She stated that it would not have affected her decision, however, because Candidate No. 29’s experience with DPW’s financial operations made No. 29 the most desirable candidate.
Lawrence selected Candidate No. 9 for promotion to MS II in August 2004. The position for which this candidate was selected is responsible for overseeing DPW’s Contracting, Contract Monitoring and Legislation Sections. Prior to promotion, Candidate No. 9 had been responsible for overseeing the Contract Monitoring and Legislation Section. Candidate No. 9 also had been assisting the Contract Section in processing Proposition A contracts. In April 2004, Candidate No. 9 began filling in as the manager of the Contracting, Contract Monitoring and Legislation Sections until a final appointment to that position was made. Lawrence’s selection of Candidate No. 9 for promotion was based on the candidate’s demonstrated performance, relevant contracting experience and placement on the certification list.
Lawrence did not interview plaintiff for either of these MS II positions, although he was on the certification list.
David Yamashita (Yamashita), Assistant Deputy Director of the Finance Division, promoted Candidate No. 14 to MS II in October 2003. He made the promotion at the request of the Internal Services Department (ISD). Candidate No. 14 had previously accepted a job offer from ISD. Yamashita made the promotion as a matter of courtesy to and cooperation with ISD, and did not consider anyone else for the position to which Candidate No. 14 was promoted. After the promotion, Candidate No. 14 transferred to ISD. According to Yamashita, he was unaware of plaintiff’s 1999 lawsuit against defendant, and the lawsuit did not affect his decision to promote Candidate No. 14. Yamashita never supervised plaintiff.
Marie Bloomstone (Bloomstone) promoted Candidate No. 28 to MS II in February 2003. Candidate No. 28 had worked in Bloomstone’s division, and Bloomstone selected that candidate based on what she perceived to be extensive experience in budgeting, a requirement for the position she needed to fill. According to Bloomstone, she was not familiar with plaintiff, was unaware of his ethnic background and did not know about his 1999 lawsuit against defendant. These factors therefore did not affect her decision to promote Candidate No. 28.
Plaintiff did not work with the four candidates who were promoted. He was unaware of their qualifications for the positions to which they were promoted.
Failure to Receive Bonuses
In order to receive an out-of-class/additional responsibility bonus (OCB/ARB), an employee must perform job tasks outside of his or her classification. Irene Aguilar (Aguilar) oversaw the Classification Section, which was responsible for receiving, evaluating and responding to OCB/ARB requests. John Cherep (Cherep), Assistant Deputy Director of the Human Resources Division, had final approval over the decision whether or not to grant an OCB/ARB request. That decision is discretionary.
On September 13, 2003, plaintiff submitted an OCB/ARB request, claiming he was performing job tasks outside of his AA II classification without commensurate compensation. Specifically, he had long been performing job functions performed by employees in higher classifications, such as associate engineers (CE I) and civil engineers (CE II), but without additional compensation or promotion. On October 30, Cherep rejected plaintiff’s request on the ground the duties plaintiff described were appropriate for his AA II classification.
Plaintiff again submitted an OCB/ARB request on April 5, 2004. He used a Local 660 Union form rather than the customary OCB or ARB form. This was on the advice of his Local 660 representative based on the denial of his previous OCB/ARB request. He did not list the additional duties or responsibilities as required, although he did attach documents describing his assignments, specific responsibilities and job functions. On April 22, Aguilar denied the request on the grounds the Classification Section was still attempting to determine what OCB or ARB duties plaintiff performed or whether plaintiff was requesting an OCB or ARB. Cherep approved the denial.
A memorandum to plaintiff regarding denial of his request for an ARB gave Reason Code # 4: “Your described duties are within your current job description.” According to Aguilar, this was a “typographical error.” The denial should have listed Reason Code # 10: “Other.” Aguilar spoke to Cherep about the “typographical error.” He told her to send a revised memorandum to plaintiff explaining the error. She sent out a revised memorandum dated April 22, 2004.
On April 27, 2004, plaintiff requested an explanation for the denial of his ARB request. Aguilar conferred with Cherep. On April 28, she telephoned plaintiff to let him know the reason for the denial and clear up any confusion caused by the “typographical error.” Plaintiff requested the reason in writing, but Aguilar declined his request and gave it to him verbally.
According to Aguilar, at the time she denied plaintiff’s OCB/ARB requests, she was unaware of his 1999 lawsuit against defendant or his claims of discrimination or retaliation. These factors did not affect her decision. Plaintiff did not know if other African American employees had their OCB/ARB requests denied.
Plaintiff filed a grievance on May 6, 2004. He claimed the denial of his OCB/ARB requests was due to discrimination and retaliation.
Racial Comments
Frank Kuo (Kuo) was plaintiff’s supervisor in 1998. In 2003, Kuo called plaintiff a “proud monkey.” Plaintiff could not recall any other DPW employee making comments that plaintiff considered racist. There was no investigation of this incident, and plaintiff received no apology for the comment.
Retaliation
In plaintiff’s Performance Evaluations (PE), he has consistently been rated competent. In September 2002, Ross completed and signed plaintiff’s 2001-2002 PE, giving plaintiff an overall rating of competent. The PE makes no mention of plaintiff’s use of sick leave. At the time, Ross was unaware of plaintiff’s complaints of discrimination or retaliation due to the 1999 lawsuit against defendant.
Terri Grant (Grant), an African American woman, completed and signed plaintiff’s 2002-2003 PE. Again, plaintiff was given an overall rating of competent. Plaintiff filed a grievance claiming that the rating was not accurate, in that his OCB/ARB assignments were not considered and the rating did not match the PE write-up. Grant was unaware that plaintiff had complained of discrimination or retaliation due to the 1999 lawsuit against defendant.
Jason Pereira (Pereira) completed and signed plaintiff’s 2003-2004 PE on August 31, 2004. Pereira gave plaintiff an overall rating of competent but noted that plaintiff had difficulty producing the amount of work expected of his AA II classification, failed to meet scheduled deadlines, failed to follow work instructions, was resistant to supervision, needed additional monitoring and instruction to ensure completion of his work, and lacked adaptability. Plaintiff had made complaints against Pereira of disparate treatment.
In February 2003, plaintiff had requested to be signed up for instructor-led computer training in Word and Excel, which was available to DPW employees. Pereira informed him that DPW had no instructor-led training classes for Word and Excel. In January 2004, plaintiff was signed up for computer-based training in Word and Excel. Plaintiff learned from the Information Technology Division that instructor-led classes were being scheduled for March/April 2004. When plaintiff notified Pereira, Pereira told plaintiff he would not be enrolled in the training. Plaintiff spoke to Kubomoto, who told him that the training was offered only once a year and instructed plaintiff to sign up for the computer-based training. Kubomoto said it was the most convenient. Plaintiff was unaware of any other employees who were denied their requests for instructor-led training.
In August 2003, plaintiff had requested clearance from Pereira to attend Project Manager (PM) training sessions. These training sessions were designed for engineering staff in charge of carrying a project from inception through completion. Because plaintiff was assigned at the time to develop a comprehensive Contract Administration Manual, Pereira instructed plaintiff to attend one PM training session which covered contract administration issues. Section Head Karen Luo (Luo) denied plaintiff’s request to attend additional PM training sessions on the ground they were specifically geared toward engineers and would not have helped him with his assignment.
It was DPW policy that employees compensated on an hourly basis would receive two 15-minute breaks and one 45-minute lunch break per day. On March 3, 2004, Luo gave plaintiff a memorandum directing him to take his breaks and lunch break at specified times. This altered the schedule plaintiff had maintained since 2001, with management approval, which allowed him to drive his children to school during his lunch breaks. Plaintiff filed a grievance and obtained a revision to his schedule. However, because his family had already made schedule adjustments to accommodate his new break schedule, plaintiff turned down the proffered revision.
It was DPW’s policy to allow the use of e-mail for business-related communications with government agencies and the public. On February 26, 2004, Luo yelled at plaintiff for using e-mail to report harassment. In response, plaintiff wrote a memorandum to Luo on March 1 regarding her behavior. He sent copies to Pereira, Kubomoto, Grant, Cherep and others. On March 8, 2004, Luo instructed plaintiff to address any work-related issues to her or Pereira verbally, in order to prevent DPW’s e-mail system from being overwhelmed. Plaintiff nevertheless chose to use e-mail to communicate with Luo and Pereira, in addition to verbal communications, because he believed there was no DPW policy against the use of e-mail for communication and he wanted to avoid problems concerning what he had communicated to his supervisors.
It was DPW’s policy that employees should not exceed their annual allocation of sick leave unless necessary due to serious illness or injury. If an employee exceeds the annual allocation of sick time within a 12-month period, the employee will receive a memorandum reminding him or her of attendance standards. On July 19, 2004, Luo wrote a memorandum to plaintiff indicating that he had used 75 hours of sick leave during the 12-month period ending May 31, 2004. She reminded him of DPW’s expectations and standards regarding attendance. She also noted that he had failed to contact her or Pereira to report his absences. She stated that, consistent with DPW policy, he would be required to provide written verification of the reason for any unscheduled absences.
Plaintiff objected to the memorandum, claiming that the time period covered in the memorandum was greater than 12 months—from April 1, 2003 through May 30, 2004. He claimed to have used only 33 hours of sick time from April 1, 2003 to April 1, 2004. Luo responded that although her prior memorandum covered the period from April 1, 2003 through May 30, 2004, plaintiff had actually used 75 hours of sick time between June 1, 2003 and May 31, 2004. On August 2, 2004, plaintiff also filed a grievance regarding the July 19, 2004 memorandum.
Suspension
On September 8, 2004, plaintiff was suspended for three calendar days based upon his repeated failure to follow work instructions from his supervisors and failure to complete work assignments. These included: refusal to meet and discuss work projects, refusal to provide requested work files, improper use of the e-mail system after admonishment by his supervisors, and retrieval of his time sheet after it was submitted while he was on sick leave. The suspension notice also stated that when plaintiff’s supervisor tried to correct his noncompliant behavior, he became insubordinate.
Complaints Filed
On February 3, 2004, plaintiff filed a discrimination complaint with the Department of Fair Employment and Housing (DFEH). The complaint alleged harassment and denial of promotion, transfer, family or medical leave, and equal pay.
PROCEDURAL BACKGROUND
On February 2, 2005, plaintiff filed his complaint. The trial court sustained defendant’s demurrer as to plaintiff’s causes of action for hostile work environment, harassment, intentional infliction of emotional distress and disability discrimination. It overruled the demurrer as to plaintiff’s causes of action for racial discrimination and retaliation for having filed the 1999 lawsuit against defendant. Plaintiff failed to amend, and the court dismissed the causes of action as to which the demurrer was sustained.
Defendant moved for summary judgment or, in the alternative, summary adjudication on several grounds, including principles of res judicata and collateral estoppel based on the judgment in the 1999 lawsuit, expiration of the limitations period, and defendant’s legitimate, non-discriminatory reasons for taking the actions it did.
In opposition to the motion for summary judgment, plaintiff submitted his declaration and supporting evidence. Defendant objected to most of plaintiff’s declaration on numerous grounds, including lack of foundation, hearsay, and that it contradicted his deposition testimony. The trial court ruled specifically on all these objections, sustaining the majority of them.
In granting the summary judgment motion, the trial court preliminarily noted that to the extent plaintiff alleged actions occurring prior to the April 2001 summary judgment in the 1999 lawsuit, any claims thereon were barred by res judicata and collateral estoppel. Additionally, under FEHA, a claim must be filed with DFEH within one year of the alleged discriminatory act. (Gov. Code, § 12960.) Plaintiff filed his claim on February 3, 2004, so any claims based on actions occurring prior to February 3, 2003 were barred.
Plaintiff does not challenge the rulings based on res judicata/collateral estoppel or the statute of limitations.
With respect to defendant’s failure to promote plaintiff, the trial court found that defendant produced sufficient evidence to show that the promotion of the four other candidates to MS II was done for legitimate, nondiscriminatory reasons. Specifically, the candidates had the knowledge and experience necessary for the new positions and two of them had preexisting relationships with those giving the promotions. Additionally, Lawrence and Bloomstone were unaware of plaintiff’s ethnic background or prior lawsuit against defendant.
The trial court also found that despite plaintiff’s claims regarding his own “impressive qualifications,” he produced no admissible evidence to show that he was, in fact, more qualified than the candidates promoted. He thus failed to prove that the reasons given by defendant were pretextual.
The trial court similarly found that defendant produced evidence that it had legitimate reasons for denying plaintiff’s OCB/ARB bonus requests, for the PE ratings of competent, for denying him clearance to attend additional PM training sessions and permission to attend instructor-led computer training, and for suspending him. It found that defendant did not discipline him for his use of sick time but merely reminded him of DPW policy. The trial court also noted that the comment by Kuo, and occasions when Luo and Pereira yelled at plaintiff, “though hurtful, do not show discriminatory animus on the part of Defendant and therefore do not establish pretext. The isolated instances cited by Plaintiff are not in any way related to the promotion context or the authority of persons who could promote him, nor do they show discrimination.”
As to plaintiff’s cause of action for retaliation, the trial court found that the claimed acts of retaliation either occurred prior to the limitations period or did not constitute adverse employment actions. Based on plaintiff’s failure to present evidence of racial discrimination or retaliation, the trial court granted defendant’s summary judgment motion.
After the trial court granted the summary judgment motion, defendant moved for an award of attorney’s fees pursuant to Government Code section 12965. The trial court granted the motion and awarded defendant $62,268.00 in attorney’s fees and $17,150.13 in costs.
Government Code section 12965 contains the requirements for bringing an action under FEHA. It specifically provides: “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs . . . .” (Id., subd. (b).)
DISCUSSION
Standard of Review
Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, at p. 849.) The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, disapproved on another ground in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Unless otherwise stated, all further section references are to the Code of Civil Procedure.
Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The plaintiff may not rely on his or her pleadings to meet this burden (§ 437c, subd. (p)(2); Aguilar, supra, at p. 849), except to the extent they are uncontested by the opposing party (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626).
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Inasmuch as the grant or denial of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties’ moving and opposing papers. (Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal.App.4th at p. 548.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.)
Employment Discrimination
FEHA protects an employee from discrimination based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.” (Gov. Code, § 12940, subd. (a).) To make a prima facie showing of discrimination in violation of FEHA, plaintiff must show that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) If plaintiff makes the requisite showing, a presumption of discrimination arises. (Ibid.)
Once plaintiff makes a prima facie showing of discrimination, “the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356.) If the employer is able to rebut the presumption, the burden shifts back to the plaintiff to show that the employer’s given reasons for its actions were pretextual and to offer evidence of discriminatory motive. (Id. at p. 356.)
Plaintiff argues that he “has established that he [is] a member of a protected class (African American), that he was qualified for the promotion, that he sought and applied for the MS II position, and that he had a reasonable expectation of being promoted because he was ranked high enough on the list of eligible employees under [defendant’s] competitive promotion system.” While we agree that he established that he was a member of a protected class and qualified for a promotion to MS II, he points to no evidence supporting his argument that he had a reasonable expectation of promotion.
The evidence showed that there were 14 people eligible for promotion and only 4 MS II positions open. While plaintiff claims that his “education and experience ranking was equal to one of the [employees] promoted and superior to three of the non-African American employees who received promotions,” he points to no evidence supporting this claim. The trial court specifically found that despite plaintiff’s claims regarding his own “impressive qualifications,” he produced no admissible evidence to show that he was, in fact, more qualified than the candidates promoted. The trial court sustained defendant’s objections to plaintiff’s declaration as to his superiority over the candidates selected for the open positions, as well as his statements as to the qualifications for the open MS II positions.
On appeal, we begin with the presumption that the judgment of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) Plaintiff has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)
Plaintiff also claims that he established discrimination by “present[ing] competent evidence that, among other things, he was often spoken to and addressed in a racially condescending manner.” Again, he does not support this claim with citations to the record. The evidence showed that Kuo made a racially condescending comment to defendant. Kuo, however, was not plaintiff’s supervisor at the time he made the comment and did none of the hiring for the MS II positions. Thus, as the trial court found, the comment did “not show discriminatory animus on the part of Defendant,” was “not in any way related to the promotion context or the authority of persons who could promote him,” and did not “show discrimination.”
Retaliation
To establish a prima facie case of unlawful retaliation, a plaintiff must demonstrate that he engaged in a protected activity, the employer subjected him to an adverse employment action, and there was a causal link between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) If the employee can state a prima facie case, the burden shifts to the employer to demonstrate that the adverse employment action was taken for a reason other than retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.) If the employer is able to do so, the presumption of retaliation is removed, and the burden shifts back to the plaintiff to produce evidence demonstrating that the employer’s articulated reason was merely a pretext, and there was intentional retaliation. (Yanowitz, supra, at p. 1042; Flait, supra, at p. 476.)
The trial court found no evidence of adverse employment action. As discussed above, defendant presented evidence of legitimate reasons why plaintiff was not promoted to the MS II position. Plaintiff points to no admissible evidence demonstrating that these reasons were pretextual.
Other claimed instances of retaliation included performance ratings of competent, denial of OCB/ARB, denial of instructor-led computer training in Word and Excel, denial of clearance to attend more than one PM training session, weekly performance expectation review sessions, sign-in/out rules, reprimand for use of e-mail to communicate with his supervisors, change of his work schedule and a memorandum reminding him of attendance standards. Plaintiff cites no authority supporting a claim that these constitute adverse employment actions for purposes of FEHA.
Plaintiff’s burden of demonstrating reversible error on appeal requires that he cite relevant authority in support of his contentions. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) In general, adverse employment actions are those “reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1054.) They do not include “mere inconveniences or insignificant changes in job responsibilities.” (Id. at p. 1060.)
Additionally, plaintiff cites no admissible evidence establishing that the reasons provided by defendant for these actions were pretextual. His beliefs that the actions were retaliatory are insufficient. (See Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.) Plaintiff thus failed to meet his burden of “produc[ing] admissible evidence which raises a triable issue of fact material to the defendant’s showing” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203), i.e., that defendant’s reason for the adverse employment action was retaliatory and the reason given pretextual (Yanowitz, supra, at p. 1042; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476).
Attorney’s Fees and Costs
Defendant contends that we have no jurisdiction to consider plaintiff’s challenge to the trial court’s award of attorney’s fees and costs, in that plaintiff did not appeal from that order. The record shows that judgment was entered on July 6, 2006 and notice of entry of judgment was served on July 10 and filed on July 11. The judgment contained blank spaces for an award of attorney’s fees and costs. The trial court granted defendant’s motion for attorney’s fees and costs on July 27 and the clerk gave notice of entry of the order granting the motion. Thereafter, a copy of the judgment containing the award of attorney’s fees and costs was filed.
Plaintiff filed his notice of appeal on September 5, 2006. The notice states that the appeal is taken from the judgment entered on July 6, with notice of entry served on July 10. Attached to the notice of appeal is a copy of the judgment filed on July 6.
Our jurisdiction on appeal is limited in scope by the notice of appeal. If the notice of appeal specifies the judgment or order from which the appeal is taken, we have no jurisdiction to consider other orders. (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.)
A postjudgment order awarding attorney’s fees is separately appealable as a postjudgment order. (§ 904.1, subd. (a)(2); R. P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) We have no jurisdiction to consider issues relating to such an attorney’s fee order unless an appeal has been taken therefrom. (R. P. Richards, Inc., supra, at p. 158; Norman I. Krug Real Estate Investments, Inc., supra, at p. 46.) If, however, the judgment itself awards attorney’s fees, even if the amount thereof is left for later determination, then an appeal from the judgment encompasses the attorney’s fee award. (R. P. Richards, Inc., supra, at p. 158; Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)
Here, although the trial court later ruled on the motion for attorney’s fees, the July 6, 2006 judgment did include a blank award of attorney’s fees and costs. We therefore conclude that the award is reviewable on appeal from the judgment. (R. P. Richards, Inc. v. Chartered Construction Corp., supra, 83 Cal.App.4th at p. 158; Grant v. List & Lathrop, supra, 2 Cal.App.4th at p. 998.)
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.) An award of attorney’s fees under FEHA is reviewed for abuse of discretion. (Id. at pp. 765-766.)
Here, as the trial court found, plaintiff was unable to produce any admissible evidence demonstrating discrimination by defendant. The only evidence he was able to produce was his own subjective belief that he had been the victim of discrimination. This was manifestly insufficient to prove his case. (See Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1046.) Plaintiff’s lack of admissible evidence to support his claims supports a finding that his action was frivolous, unreasonable or without foundation, justifying an award of attorney’s fees. (Linsley v. Twentieth Century Fox Film Corp., supra, 75 Cal.App.4th at p. 766.) The trial court therefore did not abuse its discretion in awarding attorney’s fees and costs to defendant. (Id. at pp. 765-766.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.
The trial court sustained defendant’s objections to plaintiff’s evidence, much of which consisted of conclusions of law or fact or inadmissible evidence, ruling that it considered only the “admissible evidence.” Plaintiff does not challenge the trial court’s evidentiary rulings. Thus, on appeal, we consider only the admissible evidence (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419-1420) appearing in the parties’ separate statements of undisputed and/or disputed facts (United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 337).