Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC 07-461476.
Margulies, J.
Plaintiff Dickson Adetuyi sued his employer, the City and County of San Francisco (City), and one of his supervisors, Alexander Hines, for sexual harassment and retaliation. At trial, plaintiff testified that Hines had pursued him sexually and given him special employment considerations during a period from 1997 through 2002. When plaintiff not only rejected those overtures but also complained to management in 2002 and 2003, Hines’s attitude turned hostile, and during the following years he engaged in occasional unreasonable, retaliatory conduct and outbursts against plaintiff. Although the jury found for plaintiff on each of his causes of action, the trial court granted judgment notwithstanding the verdict (JNOV) to the City and Hines, concluding plaintiff’s claims for acts in the past were barred by the statute of limitations and Hines’s more recent conduct was not sufficiently severe or pervasive to constitute actionable discrimination. We affirm.
I. BACKGROUND
Plaintiff filed suit against Hines and the City on March 19, 2007, alleging causes of action for sexual harassment, retaliation, and failure to prevent harassment and retaliation. According to the complaint, plaintiff was “repeatedly subjected to sexual harassment by Hines” beginning 10 years prior to the filing of the complaint, in 1997, thereby creating a hostile working environment. When plaintiff complained about Hines’s behavior, Hines committed several acts of retaliation. Although plaintiff brought the matter to the attention of management on several occasions, nothing was done to alleviate the situation. Plaintiff alleged he had exhausted his administrative remedies by filing a discrimination complaint with the Department of Fair Employment and Housing on January 31, 2007.
Plaintiff prevailed after trial, the jury finding in his favor on all three causes of action and awarding him damages of $210,000. The City thereafter moved for JNOV and gave notice of its intention to move for a new trial, relying largely on the bar of the statute of limitations. In particular, the City argued plaintiff could not recover for events preceding the commencement of the one-year limitations period because he did not prove the facts necessary to invoke the continuing violation doctrine and he failed to prove actionable sexual harassment and retaliation within the statutory period.
The trial court held for the City on virtually all requested grounds and granted JNOV for both defendants. In a lengthy written order carefully detailing the evidence of Hines’s harassing and retaliatory conduct, the court held that plaintiff could not invoke the continuing violation doctrine because (a) the past acts of harassment and retaliation were not sufficiently frequent, and (b) the situation acquired “permanence” long before the statutory period when Hines’s supervisors failed to respond to plaintiff’s complaints about his conduct. As to the conduct within the period of the statute of limitations, the court found Hines’s acts of harassment to be insufficiently severe to create a hostile work environment and unconnected to plaintiff’s gender and his acts of retaliation insufficient to effect an adverse change to plaintiff’s working conditions. In the alternative, the court granted a new trial on all claims.
The trial court also granted JNOV on the retaliation claim against Hines under Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, which holds that supervisors are not personally liable for retaliation. Plaintiff does not contest this ruling.
In the following account of the evidence from the trial, we focus in particular on the timing and nature of Hines’s conduct and the City’s handling of plaintiff’s complaints. Consistent with the JNOV standard of review, we recount the facts developed in the record in the light most favorable to the jury’s verdict. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 127.)
Plaintiff has been employed as an eligibility worker at Laguna Honda Hospital (Laguna Honda) in San Francisco since 1995. Hines became the supervisor of plaintiff’s department in November 1997. Although Hines was not plaintiff’s direct supervisor, in the “first couple of years, ” i.e., 1998 and 1999, the two interacted frequently in the course of plaintiff’s work, and plaintiff came to conclude Hines was a homosexual. Over this time, Hines began to show plaintiff excessively personal attention that embarrassed plaintiff and made him uncomfortable. For example, Hines admired plaintiff’s clothing, and commented upon and complimented plaintiff’s physique. Initially these discussions were infrequent, but they eventually occurred “almost every day.” Occasionally Hines would steer the conversations to sexual topics, and when plaintiff wore certain pants, Hines “leered” at him and commented that his “ ‘stuff could be showing.’ ” Hines “very frequent[ly]” followed plaintiff into the restroom, stood next to him at the urinals, and made personal conversation. Hines also pressured plaintiff to come to his home. On one occasion, when plaintiff brought his wife after telling Hines he intended to come alone, Hines was unfriendly and shunned plaintiff for days afterward.
Although plaintiff’s testimony was somewhat vague about the timing of events, it was made clear by counsel’s questioning that the foregoing conduct occurred prior to 2003.
Around June 2000, when Hines assumed supervision of plaintiff while his direct supervisor was on leave, Hines began secretly giving plaintiff apparently undeserved “comp time.” During this period, the intensity of Hines’s attentions also increased. In November, Hines told plaintiff the comp time would cease, without providing an explanation. Plaintiff believed the comp time stopped because he had been attempting around this time to “find[] different ways” to reject Hines’s overtures. A few weeks later, plaintiff confronted Hines directly, telling him to “stop this inappropriate behavior.”
Despite this warning, plaintiff testified that Hines’s attentions grew more frequent, apparently peaking sometime between 2000 and 2002. At some point in 2002, plaintiff made his first complaint to hospital management, meeting with Hines’s supervisor, Nancy Arata, and explaining what plaintiff characterized as Hines’s “obsess[ion]” with him. He met with Arata again later that year when Hines’s conduct did not change. Arata gave plaintiff a pamphlet on sexual harassment but never followed up with him. In December 2002, Hines was seriously injured and temporarily rendered a paraplegic, and he did not return to work until August 2003.
This necessarily must exclude most of 2001, since Hines left for another job in March 2001 and did not return to Laguna Honda until November 2001.
The inappropriate attention apparently resumed after Hines’s return, although plaintiff also testified that by this time Hines’s attitude had become more hostile. In August 2003, the month of Hines’s return to work, plaintiff and Hines were next to each other at the restroom urinal, and Hines commented that plaintiff “ ‘always go to the bathroom a lot of pee, ’ ” again making plaintiff uncomfortable. Soon after the bathroom incident, Hines reprimanded plaintiff by “screaming and swearing” at him in public. By this time, plaintiff testified, he had complained to Arata “at least three or four times” about Hines’s conduct.
It is not clear when the additional meetings occurred, since, as noted, Hines was absent from the workplace for nine months preceding this incident.
In October 2003, plaintiff and two of his female coworkers attended a meeting with Arata at which they discussed Hines’s verbally abusive conduct, which had been directed at all of them. Arata said she would hold a meeting with the employees and Hines to address the problems, but it never occurred. Plaintiff did not mention the sexual harassment at this meeting, since he regarded it as a personally sensitive issue, but a few days later he met alone with Arata to complain that Hines’s abusive conduct was worsening. During this meeting, plaintiff told Arata he believed Hines’s abuse of him derived from his rebuff of Hines’s attentions.
After October 2003, Hines’s abusive conduct worsened. Instead of excessively complimenting plaintiff on his attire, Hines began excessively criticizing it. In November 2003, the three employees wrote a letter to Arata, again complaining about Hines’s harassment and intimidation. At a staff meeting at the end of that month, Hines furiously reprimanded the department employees for taking issues “over [his] head” and threatening reprisals if it occurred again. The next month, Hines reprimanded plaintiff unfairly in connection with his handling of corpses, eventually leading to unwarranted discipline.
In December, the three employees met with Hines, but the meeting was unproductive. They wrote another letter of complaint to Arata in January 2004. When plaintiff next met with Arata, she told him, “You have to find a way to get along with this man.” After this meeting, plaintiff “knew that I couldn’t proceed further.” As plaintiff explained, “[a]fter so many complaints to Nancy Arata about Mr. Hines nothing was done, and then when I met Nancy Arata she told me specifically... you go upstairs, go find a way to work things out with him, so I could not do anything after that.” The abuse continued, however, and the three employees had another meeting with Arata, along with a “manager representative” around February 2004. Arata promised to take action, but she did nothing. Plaintiff was so frustrated with Arata’s failure to take action that he spoke with Hines’s pastor about his problems.
Plaintiff was similarly frustrated with other avenues of relief. One of the female employees complaining about Hines filed a retaliation claim with the City’s Division of Equal Employment Opportunity (EEO) around late 2004, leading the EEO to contact plaintiff as part of its investigation. Plaintiff described his own experiences with Hines, and the EEO investigator told him she would contact him again. She did not. In fact, his interaction with the EEO in 2005 caused him to “have no confidence” EEO would take any action to correct the problem.
Arata was replaced in mid-2004 by Diane Guevara. In late 2004, plaintiff complained to Guevara for the first time, after Hines had threatened another serious disciplinary action. Plaintiff explained the history of his relationship with Hines, and Guevara said she would look into it. She did nothing. Over the next year or so, plaintiff complained to Guevara “three to five times” to no effect.
During these years, Hines frequently criticized plaintiff’s clothing. In one incident in 2004, Hines gestured toward plaintiff’s genitals and remarked that his pants were excessively revealing. In June 2005, a dress code was issued, and plaintiff met with Guevara to complain that he was being specifically targeted by the new code. Guevara said she would speak to Hines. Soon after, apparently in August 2005, a staff meeting was held at which Hines again “screamed” about employees “going over his head.”
Although the City contends that there were no events of hostility between mid-July 2005 and August 15, 2006, an e-mail in the record identifies August 5, 2005 as the date on which this staff meeting occurred.
There is no evidence of another event of harassment until a year later, August 16, 2006, when Hines angrily reprimanded plaintiff for giving money to an impoverished patient and accused plaintiff of using the fax machine for personal matters. Nine days after that incident, on August 25, plaintiff was given a written warning over his handling of a patient’s check. The warning originated with a complaint by the patient and was investigated by plaintiff’s immediate supervisor, David Dietrich. When Dietrich told Hines the results of his investigation, Hines suggested a written warning be issued. Soon after, Dietrich learned additional information that persuaded him the warning was unfounded, and he rescinded the warning five days after it was issued.
In October 2006, apparently after plaintiff had rebuffed an attempt by Hines to discuss business in the restroom, plaintiff came to work wearing a dress hat. After an hour, Hines came up to him and violently insisted plaintiff remove his hat. During a subsequent discussion in Hines’s office, plaintiff refused to remove the hat. Hines profanely insisted plaintiff leave his office, slamming the door after plaintiff and injuring his leg. Twice in 2007, Dietrich wrote notes to plaintiff at Hines’s direction informing plaintiff his attire was not in compliance with the dress code.
At the time of trial, plaintiff still worked at the hospital, performing the same duties and paid the same as other eligibility workers, and he had not been disciplined since 2004, other than the rescinded warning in 2006.
II. DISCUSSION
Plaintiff challenges the trial court’s rulings that the continuing violation doctrine did not apply to his claims and he failed to prove actionable sexual harassment and retaliation within the period of the statute of limitations.
“[A] trial judge should grant a motion for JNOV where the jury returns a verdict which is not supported by substantial evidence or by reasonable inferences to be drawn therefrom.” (Herr v. Nestlé USA, Inc. (2003) 109 Cal.App.4th 779, 788.) “On appeal from a judgment for the defendant notwithstanding the verdict, ordinarily an appellate court will use the same standard the trial court uses to rule on the motion. The court will determine whether the record, viewed most favorably to the party securing the verdict, contains any substantial evidence supporting the verdict.” (Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 718.)
A. Applicable Law
1. Sexual Harassment
The California Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12900 et seq.) “ ‘recognize[s] two theories of liability for sexual harassment claims... “... quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances... [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) “[T]he hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe. [Citation.]... To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.’ [Citations.]... [¶]... [¶]...[T]he existence of a hostile work environment depends upon ‘the totality of the circumstances.’ ” (Id. at pp. 1043–1044.)
“ ‘In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.] [¶]... ‘The required level of severity or seriousness “varies inversely with the pervasiveness or frequency of the conduct.” [Citation.] “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” [Citation.]’ ” (Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 142.)
2. Retaliation
To make a prima facie case of actionable retaliation under FEHA, “a plaintiff must show (1) he or she engaged in a ‘protected activity, ’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) To show an “adverse employment action, ” the plaintiff must demonstrate that the retaliatory conduct “materially affect[ed] the terms, conditions, or privileges of employment.” (Id. at p. 1052.) “Minor 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, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940[, subdivision] (a) and 12940[, subdivision] (h).” (Id. at pp. 1054–1055.)
3. Continuing Violation Doctrine
A FEHA plaintiff ordinarily cannot recover for acts occurring more than a year before the filing of an administrative complaint of discrimination. (Gov. Code, § 12960, subd. (d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811–812 (Richards).) An exception occurs if the plaintiff satisfies the requirements of the continuing violation doctrine, which “comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.” (Id. at p. 812.) To invoke the continuing violation doctrine, and thereby recover for discrimination occurring prior to the statutory period, a plaintiff must show that at least one act of discrimination occurred within the statutory period. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.) In addition, the plaintiff must show that “the employer’s unlawful actions are (1) sufficiently similar in kind [to the conduct within the statutory period]...; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]... ‘[P]ermanence’... should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards, supra, 26 Cal.4that p. 823.)
B. Statute of Limitations
The trial court concluded plaintiff failed to demonstrate the continuing violation doctrine applied to his claims both because he failed to show that the acts of discrimination occurred with “reasonable frequency” during the years preceding the statutory period and because the harassment had reached a state of permanence prior to the statutory period.
1. Reasonable Frequency
Plaintiff alleged both sexual harassment and retaliation. While these are separate causes of action under FEHA, they are considered together for purposes of the statute of limitations. If plaintiff was able to demonstrate a continuing pattern of sexual harassment followed by retaliatory conduct, the persistence of the retaliation into the statutory period would allow him to invoke the continuing violation doctrine as to both types of conduct, even if the sexually harassing conduct had ceased prior to the statutory period. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1002.)
There is certainly substantial evidence to support a finding plaintiff was the victim of sexual harassment in what his counsel characterized as “the early years”—from Hines’s hiring in 1997, until sometime in 2002. Plaintiff described a pattern of personally intrusive conduct by Hines that, the jury could have concluded, was based on plaintiff’s gender and was severe enough to create a hostile work environment. To avoid the bar of the statute of limitations regarding conduct occurring so long ago, however, plaintiff was required to show this conduct or some form of retaliation persisted on an essentially continuous basis into early 2006, with such acts occurring with reasonable frequency throughout the intervening period.
The evidence fails to show such a pattern. There is evidence of only two particularized events of sexual harassment after the confrontation in the restroom in August 2003, when Hines commented upon plaintiff’s urination. Instead, as plaintiff testified, after October 2003, Hines stopped excessively complimenting plaintiff on his attire and began excessively criticizing it. A coworker of plaintiff similarly testified that although Hines looked at plaintiff suggestively in the early years of his employment, it occurred “a long time ago, not recently... the first few years.” Hines’s abusive conduct after 2003 was predominantly the type of abuse inflicted by an overbearing supervisor. It had no apparent sexual component, except to the extent it constituted retaliation for plaintiff’s earlier rejection of Hines’s advances and complaints to management. (See Birschtein v. New United Motor Manufacturing, Inc., supra, 92 Cal.App.4th at p. 1002.)
In 2004, Hines gestured toward plaintiff’s genitals while remarking that his pants were excessively revealing. Hines also said plaintiff was built like an “African horse” in “2005/2006.”
The evidence of retaliatory acts was more substantial in the years immediately prior to the statutory period. During the period 2003 through 2005, plaintiff recounted several instances of abusive treatment, and he complained several times to Hines’s superiors about his conduct. Yet, as the trial court noted, plaintiff recounted no retaliatory incidents during an entire year, from August 2005, when Hines screamed at plaintiff in a staff meeting, until August 2006, when plaintiff was reprimanded for giving money to an impoverished patient. Plaintiff’s contemporary personal notes, which often documented the events about which he testified, also recorded no specific trouble with Hines during this period.
The trial court held, and the City now argues, that these acts could not have been retaliatory because there was no evidence Hines was aware of plaintiff’s allegations of sexual harassment until 2007, citing the testimony of Hines and others that plaintiff had not complained of sexual harassment earlier. We agree with plaintiff that the jury could have accepted plaintiff’s contrary testimony and inferred that Hines’s supervisors had related plaintiff’s allegations to Hines much earlier.
We agree with the trial court that wrongful conduct cannot be considered “continuing” or “reasonably frequent” when no memorable incident occurred for the space of an entire year. If the level of sexual or retaliatory harassment falls to a level so minimal that it results in no memorable events for an entire year, it has effectively ceased. At this point, an abused employee must decide whether to bring an action or allow the past, actionable misconduct to fall victim to the statute of limitations. The employee cannot bide his or her time and, if the harassment resumes, seek to recover for the entire history of a working relationship. “[S]tatutes of limitations serve a number of functions including ‘to prevent stale claims, give stability to transactions, protect settled expectations, promote diligence, encourage the prompt enforcement of substantive law, and reduce the volume of litigation.’ ” (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1397.) Permitting a plaintiff to reawaken a claim of harassment that has been dormant for at least a year would undermine each of these purposes.
In arguing in favor of a continuing violation, plaintiff initially points to the jury’s conclusion in the special verdict form that acts of harassment occurred within the statutory period. The argument misses the point, since the existence of wrongful acts within the statutory period has no bearing on factual issues relevant here—the frequency of wrongful conduct prior to the statutory period. Even if the jury had made a finding on this issue, however, we would be required to review the record to determine whether that finding was supported by substantial evidence. Merely to argue, as plaintiff does, that the jury must have had some basis for its conclusion, without identifying that basis in the record, does not satisfy his burden on appeal.
It is similarly irrelevant that, as plaintiff argues in his opening brief, the City’s earlier summary judgment and in limine motions addressed to this issue had been denied. Because those motions are subject to different procedural standards, their denial is in no way inconsistent with the grant of JNOV.
Plaintiff also argues he should be permitted to rely on his general testimony that harassment was “continuous” or “constant” throughout his employment to prove a continuing violation. We found no such testimony regarding the sexualized conduct prevalent in the early years. Contrary to his present argument, plaintiff never testified that Hines’s excessively attentive conduct persisted continuously into the present. As discussed above, the distinct impression his testimony provided was that the acts of sexualharassment largely ended in 2003, when Hines’s attitude turned hostile.
During cross-examination, plaintiff testified that Hines often pointed at him while discussing his clothing, but his testimony about the frequency of this conduct was unclear. Initially plaintiff said it occurred “six, seven, eight... several times, ” but this response evolved to “continually” and “constantly” by the next question. Plaintiff said there might have been a year when it did not happen, but he was not certain what year. Even if this testimony were internally consistent and sufficiently specific as to time to demonstrate “reasonably frequent” conduct, mere pointing is not sufficient harassment to create a continuing violation.
With respect to retaliation, plaintiff argues he testified to Hines’s “unabated hostility” toward him throughout the period of time since 2003. Assuming such testimony is in the record, it would be inadequate standing alone to qualify as substantial evidence of reasonably frequent conduct. Hostility alone, without some tangible manifestation, does not demonstrate the adverse impact on employment necessary to show actionable retaliation. (Yanowitz, supra, 36 Cal.4th 1028, 1054–1055.) It may be true, as plaintiff argues, he was not required to recount “each and every instance of abuse” (Pucino v. Verizon Wireless Communications, Inc. (2d Cir. 2010) 618 F.3d 112, 119–120), but he was required to demonstrate that substantial acts of retaliation occurred with some frequency. There is simply no such evidence for a long period of time prior to the statutory period.
Plaintiff also cites the testimony of his immediate supervisor, Dietrich. Dietrich’s testimony, however, contains no specific mention of incidents of retaliatory harassment during the period from August 2005 through August 2006. Similarly, plaintiff cites his complaints to an investigator from the EEO who interviewed him in May 2007, but there is no indication his complaints concerned events after August 2005.
Plaintiff places great weight on Hines’s questioning of Dietrich’s evaluation of plaintiff for year 2006. Even assuming this was evidence of retaliatory mistreatment, it did not occur until 2007.
Plaintiff also argues his inability to remember specific events should be forgiven, given the lapse of time. Plaintiff’s memory of events in the early years, however, was relatively clear. He was able to recount several specific incidents of sexual harassment during that time, creating a vivid portrait of Hines’s conduct. His failure to do so for the more recent time period of late 2005 and early 2006 suggests not that his memory has failed but that the type of events that made an indelible impression on him in the period 1997 through 2002 did not happen later.
2. Permanence
Even if we concluded there was substantial evidence Hines’s harassing conduct was reasonably frequent throughout the period preceding plaintiff’s filing, we would find the continuing violation doctrine unavailable because we agree with the trial court the situation had reached a state of permanence before 2006.
“Permanence, ” in the context of an employer’s attempt at informal remediation of ongoing harassment, occurs when “an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards, supra, 26 Cal.4th at p. 823.) In Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, for example, it was held that a pattern of sexual discrimination reached a state of permanence after the plaintiff’s supervisor repeatedly refused to permit her to perform aspects of her job that required her to work in an automotive shop. (Id. at pp. 1035–1037, 1043.) When the filing of a grievance failed to regain these duties and her job title was changed to exclude them, the court held, she “should have known that further efforts to resolve the situation would be futile.” (Id. at p. 1043.)
At least as early as 2003, when Hines’s attitude toward plaintiff became hostile, plaintiff began to meet fairly regularly with Hines’s immediate superiors to complain about his conduct. Plaintiff testified that he raised both Hines’s sexually suggestive conduct and his retaliation during these meetings, which continued with some frequency for nearly two years, from 2003 into 2005, involving two different supervisors, Arata and Guevara. The supervisors alternated between putting plaintiff off, claiming his problem should be handled by EEO, and promising curative action that never occurred. Although it appears the supervisors discussed the issue with Hines, since he castigated the employees for going over his head on at least two occasions, they took no apparent action to change his abusive behavior. On the contrary, their attitude was summed up in Arata’s comment to plaintiff, “You have to find a way to get along with this man, ” clearly implying that the burden was on plaintiff to tolerate Hines’s behavior. At this point, it should have been clear to plaintiff the hospital intended to tolerate Hines’s abusive conduct. Although Arata was replaced by Guevara, Guevara did nothing to suggest her attitude would be different.
Plaintiff argues that Richards requires an employer to inform the employee “in a definitive manner” that nothing will be done to remedy his or her complaint before permanence will be found. The language quoted by plaintiff, however, is not from the court’s definition of permanence. As noted above, Richards held that permanence occurs when a reasonable employee would understand, from the employer’s conduct, that further informal efforts will be futile. The language quoted by plaintiff, incorporating the word “definitive, ” occurs subsequently in the court’s discussion of the manner in which an employer can “assert control over its legal relationship with the employee” regarding alleged discrimination. According to the court, the employer can either grant the employee’s request for relief or make clear to the employee “in a definitive manner” it will not do so, thereby triggering the statute of limitations. (Richards, supra, 26 Cal.4th at pp. 823-824.) Richards does not hold that such conduct by an employer is required in order to create permanence but rather that such conduct will, without uncertainty, do so. On the contrary, Richards requires no particular type of conduct from an employer to create permanence, other than conduct demonstrating to a reasonable person the employer will take no action to address the plaintiff’s concerns.
Plaintiff also contends there was no permanence because Hines’s supervisors continually told him they would investigate and address his complaints. His own testimony, however, confirms that they repeatedly failed to make any effort to do so. After his complaints had been repeatedly ignored, it should have become clear to plaintiff that Hines’s supervisors were merely patronizing him and had no intention of seriously addressing his problem with Hines.
C. Plaintiff’s Timely Claims
Our conclusion that plaintiff cannot take advantage of the continuing violation doctrine does not address his claims in their entirety. Because plaintiff filed his claim with the Department of Fair Employment and Housing (DEFH) on January 31, 2007, he was entitled to recover for actionable sexual harassment and retaliation that occurred from January 31, 2006 onward. The trial court granted JNOV as to these claims, concluding Hines’s conduct was not of sufficient severity to constitute actionable discrimination.
There is little question plaintiff failed to prove actionable sexual harassment during the period after January 2006. To make a case of sexual harassment, plaintiff was required to show that Hines’s harassing conduct during this period was “pervasive or severe. [Citation.]... To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.’ [Citations.] There is no recovery ‘for harassment that is occasional, isolated, sporadic, or trivial.’ ” (Hughes v. Pair, supra, 46 Cal.4th 1035, 1043; see also Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1057 (Holmes).)
During the statutory period, plaintiff described four incidents of retaliation: two reprimands, the issuance of the warning in August 2006, and the hat incident in October 2006. Even if related to plaintiff’s gender, this handful of incidents over the period of a year is not a “severe or pervasive” pattern of harassment. Rather, it appears Hines on occasion lost his temper and once approved a warning recommended by plaintiff’s direct supervisor. Within the statutory period, there is no substantial evidence of a “ ‘ “concerted pattern of harassment of a repeated, routine or a generalized nature” ’ ” that “ ‘ “would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee....” ’ ” (Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 877; see, e.g., Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 144 [three offensive encounters with a single person over a five-week period not “severe or pervasive”]; Holmes, supra, 191 Cal.App.4th 1047, 1059.)
Nor did the evidence support a claim of retaliation, since, as the trial court held, plaintiff failed to demonstrate these actions resulted in an adverse employment action. Under Yanowitz, to show an “adverse employment action, ” plaintiff was required to demonstrate these events “materially affect[ed] the terms, conditions, or privileges of [his] employment.” (Yanowitz, supra, 36 Cal.4th at p. 1052.) “Minor 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, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940[, subdivision] (a) and 12940[, subdivision] (h).” (Id. at pp. 1054–1055.)
None of the actions described, which constituted the entirety of the allegedly retaliatory acts over a period of more than a year, caused an objective change in the terms of plaintiff’s employment. He retained his position and salary, and he did not testify to any other adverse effect on his terms and conditions of employment. While one hesitates to describe the three angry confrontations described by plaintiff as “minor” or “relatively trivial, ” since they were undoubtedly upsetting to plaintiff, they concerned minor matters, and there is no evidence any of these incidents had any continuing impact on plaintiff’s employment once the anger had passed. Dietrich, plaintiff’s immediate supervisor during this time, did not testify that he treated plaintiff any differently than any other employee as a result of any hostility Hines might have had. While it is true Dietrich documented plaintiff’s work performance more carefully than other employees because Hines had questioned his evaluation of plaintiff, this documentation effectively protected plaintiff, preventing Hines’s scrutiny from having any actual effect on the terms and conditions of plaintiff’s work.
The personnel warning could have affected these conditions, of course, but it was rescinded before any practical harm was done. There was no evidence it had any impact on plaintiff’s employment following its rescission.
Plaintiff contends he testified that Hines’s harassment interfered with his ability to do his job. Most of the cited testimony, however, concerns events and circumstances long before the statutory period. In the only testimony relating to recent events, plaintiff said Hines’s conduct had interfered with his concentration at work, eroded his self-confidence, caused him to develop a lack of trust in people, and caused him to stop attending church. Plaintiff did not explain how interference with his concentration affected the terms and conditions of his employment, and the remaining effects are not directly related to his employment. (Yanowitz, supra, 36 Cal.4th at p. 1055.)
Somewhat similar is Holmes, supra, 191 Cal.App.4th 1047, in which the plaintiff’s supervisor, upon learning she was pregnant, accused her of being dishonest during an employment interview and forwarded personal information about her to other employees. (Id. at pp. 1053, 1055.) The court affirmed a grant of summary adjudication on the plaintiff’s claim for retaliation, holding that although the plaintiff might have been upset by the conduct, it did not constitute an adverse employment action because the employer did not change her working conditions in any material manner. (Id. at pp. 1062-1063.)
Because we affirm the trial court’s conclusion plaintiff failed to prove actionable discrimination, we also must affirm its grant of judgment on his claim for failure to prevent harassment and retaliation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.)
Our affirmance of the judgment moots the trial court’s grant of a new trial to defendants and defendants’ cross-appeal on evidentiary issues, and we do not address these matters.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Banke, J.
I concur in the result, and add the following perspective regarding the judgment notwithstanding the verdict. The standard of review and the grounds for granting the motion that a court must follow are well known. To grant the motion, the court must find there is no substantial evidence to support the verdict as it gives the prevailing party’s evidence and the legitimate inferences from that evidence the value to which they are entitled and disregards conflicting evidence on behalf of the moving party. Substantial evidence must be reasonable, credible, and of solid value and may consist of inferences that are the product of logic and reason that rest on the evidence. The motion should be denied when the verdict is supported by substantial evidence, including reasonable inferences, viewed in the light most favorable to the prevailing party. The evidence including reasonable inferences drawn must be presumed true and any conflicting evidence must be resolved in favor of the party opposing the motion. In considering the evidence, the court does not weigh it. The court must accept the evidence tending to support the verdict as true, unless it is inherently incredible on its face, and must give plaintiff the benefit of all reasonable inferences in support of the jury’s verdict. (3 Cal. Trial Practice: Civil Procedure During Trial (Cont.Ed.Bar 3d ed. 2011) Motions After Trial, §§ 25.5−25.6, pp. 1441−1443.)
These stringent rules make sense in a legal system that values jury trials as a way of promoting citizen participation in dispensing justice and entrusts to jurors the determination of credibility and evaluation of the evidence. Jury verdicts should not be overturned based on a judge’s personal dislike of the result or the turning of a blind eye to reasonable inferences.
But courts also have an obligation not to blindly seize any evidence as supportive of a jury verdict where the record shows that the inferences are the result of speculation or conjecture. Both sides are entitled to a court’s careful consideration of the evidence.
With these principles in mind, the record was carefully reviewed. Plaintiff contends that from 1997 he was subjected to continuous sexual harassment by Hines. When plaintiff complained, Hines committed acts of hostile reprimand against him. But plaintiff waited to file his administrative complaint until January 2007 and his lawsuit on March 19, 2007. As the majority opinion recounts, a close scrutiny of the timing, nature of the conduct, the relationship between plaintiff and the defendant, and the events that transpired between them during January 2006 and January 2007, in light of what transpired before, reveals four disparate incidents that do not collectively or individually rise to the level of actionable conduct. Neither is there substantial evidence of a continuing violation within the statutory period―the requirements of Thompson v. City of Monrovia, supra, 186 Cal.App.4th at page 879 have not been satisfied to import prior conduct. (See Judicial Council of California Civil Jury Instructions (2011), CACI No. 2508, and Sources and Authority cited therein.) The majority opinion describes the events from 1997 when Hines became plaintiff’s supervisor, the subsequent sexual overtures, the workplace reprimands in 2005 and 2006. When the incidents are examined in context with what occurred in 2006, a review of the evidence supports the trial court’s granting the motion for judgment notwithstanding the verdict.
Marchiano, P.J.