Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC10041, Gregory Munoz, Judge.
Law Offices of Douglas B. Spoors and Douglas B. Spoors for Plaintiff and Appellant.
Rutan & Tucker, James L. Morris and Shawn M. Larsen, for Defendant and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Barry Buchmiller appeals from a summary judgment entered against him on his complaint alleging wrongful termination and related claims. Buchmiller argues the court erred by: (1) failing to consider his evidentiary objections; (2) refusing to consider his claims of constructive, as opposed to actual, discharge; (3) determining, as a matter of law, that he voluntarily resigned his employment; and (4) concluding his claim for emotional distress falls within the exclusive province of the workers’ compensation law. We find no error and therefore affirm the judgment.
First, as Buchmiller acknowledges, he failed to present his evidentiary objections in the manner required by the California Rules of Court. But his was no mere “technical” violation. Buchmiller made no attempt to comply with the rule requiring that he state his objections in a separate document, supported by points and authorities. Instead, he spread them out among the several documents he filed in connection with the motion, and apparently expected the court to filter them out itself before ruling. The court did not err in refusing to do so.
Second, Buchmiller never alleged any claim of constructive discharge, and Hines was entitled to seek summary judgment based upon the claims actually alleged. The court correctly rejected his effort to, in effect, amend his complaint in opposition to summary judgment.
Third, Buchmiller agreed, as undisputed facts, that: (1) no one at Hines ever told him his employment was terminated; (2) he continued to work at Hines past the date on which he specifically alleges his employment was terminated; (3) he continued to work there until he took a “leave of absence” for a scheduled surgery; (4) in the wake of the surgery, he reported to Hines that he was still under a doctor’s restriction preventing him from performing all the duties of his former job; and (5) Hines had no permanent modified or alternative work available to him. Based upon those facts, the court did not err in determining, as a matter of law, that Hines did not “terminate” Buchmiller’s employment as alleged in the complaint.
And finally, the court did not err in summarily adjudicating Buchmiller’s claim for emotional distress. The general rule is that emotional distress incident to termination of employment falls within the province of the workers’ compensation law; and while Buchmiller relies upon a limited exception applicable to cases in which the distress arises out of the employer’s intentional act of “disability discrimination,” he failed to cite any evidence that such discrimination occurred in this case.
FACTS
Buchmiller filed his complaint in September of 2005. He alleged causes of action for wrongful termination, breach of an implied contract not to terminate without good cause, breach of the covenant of good faith and fair dealing, employment discrimination in violation of Government Code section 12940, subdivisions (a) and (h) and negligent infliction of emotional distress.
Government Code section 12940, subdivisions (a) and (h) provide in pertinent part: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
According to the facts alleged in the complaint, Buchmiller began employment as a shop manager for Hines in December of 1999. In August of 2002, Buchmiller suffered a work-related injury to his shoulder; as a consequence, he underwent substantial physical therapy, as well as surgery in December of 2002. After his surgery, Buchmiller took time off of work, but remained in contact with Hines regarding his recovery. He returned to work, with restrictions, in March of 2003. Buchmiller’s workplace restrictions allegedly did not interfere with his ability to perform the requirements of his job. However, on October 8, 2003, Hines terminated Buchmiller’s employment, via a letter from its insurer informing him that Hines did not have “permanent modified or alternative work” available for him.
Buchmiller alleged the termination of his employment was retaliatory, in violation of Government Code section 12940, subdivision (h), because it was prompted by his exercise of the right to require reasonable accommodations for his disability or medical condition. He also alleged that Hines was guilty of workplace discrimination, in violation of Government Code section 12940, subdivision (a), because it allowed supervisors and managers to discriminate against him based upon his disability or medical condition. Those acts allegedly included failing to make a good faith effort to determine effective accommodations for his medical condition or disability, and rejecting the recommendations of Buchmiller’s physician regarding reasonable accommodations.
After answering the complaint, and conducting discovery, Hines moved for summary judgment, or alternatively, for summary adjudication of each of Buchmiller’s causes of action. In support of its motion, Hines relied upon the following facts, which Buchmiller admitted were undisputed: First, that in June of 2003, after Buchmiller had returned to work with restrictions following his surgery, Hines’ workers’ compensation insurer commissioned a formal analysis of the requirements of Buchmiller’s shop manager position. It produced a written report, detailing those requirements, and Buchmiller reviewed and signed off on the report as accurate after making minor corrections.
Second, in July of 2003, Buchmiller underwent a “complex qualified medical examination,” the result of which was a physician’s report concluding his condition was “permanent and stationary” and he was “not able to return to his previous usual and customary regular work duties.” The report recommended he be given “modified work duties on a permanent basis.”
Third, based upon the job analysis and the physician’s report, Hines’ insurer concluded Buchmiller could not return, on a permanent basis, to his regular job duties. Fourth, Hines had no permanent modified or alternative work available to offer Buchmiller.
Technically, Buchmiller did not admit the facts alleged by Hines in connection with either the physician’s report or the job analysis report in his response to Hines’ separate statement. But he offered no evidence to dispute them either. Instead, Buchmiller simply stated that he objected to the court’s reliance on either one because each lacked foundation and included hearsay. However, as we explain, the court properly refused to consider Buchmiller’s objections, and thus the documents could be properly considered for any purpose. In any event, Buchmiller’s objections are not well taken. Hines was not relying upon the reports to establish the truth of the matters stated therein by the original author(s). Whether or not the original job description generated by Hines’ insurer would have been relevant or admissible in its original form, it became relevant and admissible in its final form because Buchmiller himself signed off on it as accurate, after modifying it in some particulars. For example, where the original analysis states Buchmiller’s job requires him to reach overhead “intermittently” up to a total of one hour per day, he amended that description to reflect that his job requires him to reach overhead two hours per day. ~(ct (corrected) 139)~ In essence, he agreed to the report, thus making it his own. Buchmiller’s assessment of his own job duties suffers from neither a lack of foundation nor a hearsay problem. And Buchmiller’s assessment is significant, in turn, because it relates to conclusions reached in the physician’s report. For example, the physician concluded that Buchmiller should do “no overhead work.” And of course, the physician’s report is relevant not specifically for the truth of that, or any other matter stated therein, but is instead significant merely because it exists. Once a qualified medical examiner opined (correctly or not) that Buchmiller could not perform his usual and customary work duties, Hines could not simply ignore it, and expect Buchmiller to continue doing so.
Fifth, on October 8, 2003, the insurer sent Buchmiller a letter notifying him of his potential eligibility for vocational rehabilitation benefits, and explaining that his physician had reported he could not return to his regular job duties, and that Hines had no permanent modified or alternative work available for him.
Sixth, after receiving that letter, Buchmiller continued to work at Hines until he took a voluntary leave of absence on October 31, 2003. Seventh, no one at Hines ever told him or gave him any notice that his employment was terminated.
Eighth, Buchmiller applied for unemployment insurance in July of 2004, but was rejected based upon the determination he had “quit his employment on his/her doctor’s advice.” And ninth, Buchmiller represented, in a job application filled out in September of 2004, that he was still employed by Hines, and was leaving that position voluntarily to accept the new position.
In opposition to the summary judgment, Buchmiller relied upon additional evidence suggesting Hines had actually terminated his employment in early 2004, when he contacted the company about returning to work in the wake of his second surgery.
According to Buchmiller, when he contacted Hines, he reported that he was ready to return to work, but remained under physician’s restrictions prohibiting him from “lifting,” “pulling” or doing “long-term computer work without a break.” Instead of being told to report back to work despite those restrictions, Buchmiller was advised to call his workers’ compensation attorney. He was then told “we don’t have any work for you . . . with your disabilities.” Buchmiller argued this evidence created an issue of fact regarding whether Hines had terminated his employment at that time. Moreover, he suggested that even if the court concluded he technically resigned his position at Hines, that would not foreclose the possibility he was forced to do so by conduct on the part of Hines which amounted to a constructive discharge.
Hines also argued there were triable issues of fact regarding Hines’ motivation for firing him. He pointed out that when he reported to Hines that he was willing to return to work in the wake of his second surgery, he was told to “talk to your lawyer.” He suggests this evidence gives rise to the inference he might have been fired in retaliation for hiring a workers’ compensation attorney. He also argued there was a dispute of fact regarding whether his workplace restrictions were actually necessary, or whether, even if necessary, they would have materially impacted his ability to carry out his job. Based upon that evidence, Buchmiller argued there were triable issues of fact which precluded summary adjudication of his causes of action for wrongful termination (first cause of action) and employment discrimination (fourth and fifth causes of action). Buchmiller also argued summary adjudication would be improper on his sixth cause of action (negligent infliction of emotional distress), but offered no arguments in opposition to summary adjudication of his second and third causes of action (breach of implied contract and breach of covenant of good faith and fair dealing.)
Buchmiller cites no evidence in his separate statement to support the former contention, and thus fails to raise a triable issue of fact as a matter of law. The only evidence offered on the latter point was Buchmiller’s own conclusory deposition testimony, in which he claims his shop manager job could have been modified to “eliminate all lifting and all extended typing,” leaving him with only “scheduling, purchasing, [and] overseeing the work.” He estimated those latter tasks occupied “75 to 85 percent” of his former job. In addition to being conclusory, those assertions are inconsistent with Buchmiller’s earlier detailed assessment of the amount of time he spent doing the very tasks he claimed at deposition could be simply eliminated from his job: In his review of the job description provided in the report by Hines’ insurer, Buchmiller agreed with the report’s estimate that he spent “one to two hours per day” lifting and carrying things, and offered his own estimate that he spent “3-5 hours per shift, working on the computer” and “2 hours” per shift “reaching overhead.” The court could properly treat Buchmiller’s conclusory and self-contradictory deposition testimony as insufficient to create a dispute of fact regarding the extent to which a restriction from performing such duties would impact his ability to carry out his job duties.
At the hearing, Buchmiller stated that if the court was not otherwise inclined to entertain his claim of constructive discharge, he wished to orally move to amend the complaint to include such a claim, or seek a continuance of the summary judgment hearing so that he could do so by noticed motion. Hines opposed that request, noting the trial was scheduled to commence the following month, and Buchmiller should not be allowed to amend his complaint at such a late date, and during the hearing on the summary judgment motion. The court denied the amendment request. The court also ruled that Buchmiller’s evidentiary objections would not be considered, because he had failed to include them in a separate document, supported by points and authorities, as required by California Rules of Court, rule 3.1354(b). The court then granted the motion for summary judgment, reasoning that (1) Buchmiller had failed to raise a triable issue of fact regarding his claim that Hines had terminated his employment; and (2) Buchmiller had failed to raise a triable issue of fact concerning his claim of disability discrimination, and thus failed to demonstrate any possibility that his claim for emotional distress might fall outside the exclusive purview of the workers’ compensation system.
I
Buchmiller first suggests the court may have erred in considering evidence which he contends was properly objected to. We say “suggests,” because he cites nothing in the record demonstrating how the court actually dealt with the evidence. He merely informs us that he conveyed his evidentiary objections to the court in several different ways, while acknowledging that none of those ways technically complied with the requirements of the California Rules of Court, rule 3.1354(b). His brief left us guessing as to whether the court addressed the objections but ruled improperly, or simply ignored them. Thus it was left to Hines to inform us, in its respondent’s brief, that the court expressly refused to consider the objections because they had not been presented in the required form.
California Rules of Court, rule 3.1354(b) provides: “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: [¶] (1) Identify the name of the document in which the specific material objected to is located; [¶] (2) State the exhibit, title, page, and line number of the material objected to; [¶] (3) Quote or set forth the objectionable statement or material; and [¶] (4) State the grounds for each objection to that statement or material.”
Consequently, as we understand it, Buchmiller’s argument is that the court abused its discretion by enforcing the rule of court. That’s a tough row to hoe. While we are sympathetic to his point that courts should not elevate form over substance, we are not convinced that the court’s refusal to consider his objections in this case amounted to such an elevation. To the contrary, Buchmiller’s own brief suggests a compelling justification for the California Rules of Court requirement that evidentiary objections be presented in a formal, separate document, and comply with specific requirements.
According to his brief, Buchmiller included his evidentiary objections within: (1) the body of a deposition which Hines sought to rely upon; (2) his memorandum of points and authorities in opposition to the motion; (3) his response to Hines’ separate statement of undisputed facts; and (4) his oral argument on the motion. Thus, Buchmiller appears to be suggesting the court had a duty to ferret out, and synthesize all of the objections from that myriad of sources, before ruling on each of them. And what if the arguments supporting the objections, or even the objections themselves, are not the same in each document? Which “unofficial” version is the court required to consider? Buchmiller does not tell us.
By requiring that all objections be presented together, in formal separate document, California Rules of Court, rule 3.1354(b) ensures the court is given a clear presentation of the evidentiary objections on which a ruling is sought, supported by points and authorities. The court knows exactly what it is being asked to rule on, and why. We cannot say this requirement represents a mere “formality” which must be disregarded whenever a party fails to heed it. Although there may be circumstances in which a party has substantially complied with the rule, and the court’s disregard of the objections because of a mere technical omission would amount to elevating “form” over that substantial effort, this case does not present such a situation.
In any event, as Hines points out, Buchmiller cannot prevail on this issue unless he demonstrates not only that the court abused its discretion (which we do not find) but also that such abuse resulted in a “miscarriage of justice.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331[“‘unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power,’” quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566; see also Cal. Const., art. VI, § 13.].) “A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
California Constitution, article VI, section 13 provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Italics added.)
Here, Buchmiller made no effort in his opening brief to establish that the court’s refusal to consider his evidentiary objections had amounted to such a miscarriage. He cites only two types of evidence he contends were improperly considered by the court; first, his own responses to deposition questions that he asserts were improper attempts at “contention interrogatories,” and second, the declaration of a third party witness. In neither case does he even recite the content of the disputed evidence – either his deposition answers or the declaration – let alone demonstrate how the court’s consideration of that evidence might have prejudicially affected its analysis of the issues. Based upon this scant effort, we could never conclude the court’s decision resulted in any miscarriage of justice, and thus we do not.
II
Buchmiller next argues the court erred in refusing to consider his claim of constructive, as opposed to actual, discharge. We cannot agree. “‘The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A “moving party need not ‘. . . refute liability on some theoretical possibility not included in the pleadings.’ [Citation.]” . . . “‘[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’”’ [Citation.]” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332-333.) Because Buchmiller did not allege any claim for constructive discharge, the court could not deny summary judgment on the basis Hines failed to negate that unstated claim.
Buchmiller alternatively suggests the court erred in refusing him an opportunity to amend his complaint, as requested at the hearing, because he was “blind-sided” by Hines’ contention that his employment had not been actually terminated. As Buchmiller explains it, at the time the complaint was drafted, “the essential facts for wrongful termination were rather obvious based on the facts known at the time. Buchmiller had been told three times that Hines had no work for him and to call his lawyer. . . . Based upon those facts, it was unforeseeable that Hines would later claim that he was not terminated. To include a cause of action specifically for constructive discharge at that stage of the proceedings would have resulted in an ‘everything but the kitchen sink’ approach to pleading.”
Buchmiller also asserts that “[n]othing in Hines’ answer suggests there was no termination,” and complains that Hines failed to specifically assert that contention as an affirmative defense. But because the answer is not included within the record provided to us, we cannot give any credence to that claim. We suspect, however, that the answer denied the allegations of the complaint, as answers are wont to do. Assuming that is correct, the answer did everything required to put Buchmiller on notice that his claim of actual termination was disputed. No affirmative defense was required.
Unfortunately, Buchmiller’s argument ignores the fact that 14 months passed between the time he filed that complaint, and the time Hines moved for summary judgment. During those 14 months, Buchmiller had ample time to take discovery, refine his theories, and seek an amendment to his complaint based upon that updated factual information and analysis. Moreover, Buchmiller was presumably privy to the information gleaned by Hines in the course of its own discovery efforts. Even assuming it had uncovered facts not previously known to him – and to be clear, most of the information it relied upon actually did come from Buchmiller himself – he should have considered that information as well in assessing the adequacy of his legal theories.
Additionally, three months passed between the date Hines filed its motion, which explicitly contended there had been no actual termination of Buchmiller’s employment as alleged in the complaint, and the date that motion was heard. And yet Buchmiller made no effort to amend his complaint during that period either. Instead, he waited until the summary judgment hearing to suggest that an amendment should be allowed. The court did not err in rejecting that eleventh hour request.
III
Buchmiller also contends the court erred in concluding, as a matter of law, that Hines did not actually terminate his employment, as alleged in the complaint. We agree that the evidence relied upon by Hines to establish that Buchmiller “resigned” is not sufficient to demonstrate that fact as a matter of law. Nonetheless, Buchmiller’s contention ultimately fails because the undisputed evidence shows Hines did not terminate Buchmiller as he alleged in his complaint.
Hines relies on undisputed evidence that (1) Buchmiller affirmatively represented to prospective employers that he had resigned his position at Hines; and (2) the Employment Development Department denied Buchmiller’s claim for unemployment benefits, based upon its conclusion he had voluntarily resigned, and he did not appeal that decision. Neither of those facts, however, is sufficient to preclude Buchmiller from contesting the “resignation” claim in this case.
When considered in the context of this lawsuit for wrongful termination, Buchmiller’s earlier claim to prospective employers that he had voluntarily resigned his employment with Hines certainly makes him look dishonest – because clearly, he cannot have both resigned and been involuntarily terminated from his employment with Hines. However, Buchmiller’s factual representations to third parties, whether they be prospective employers or not, are not the equivalent of binding judicial admissions in this case. “[U]nder the rules of evidence, prior inconsistent statements, sworn or otherwise, may be admitted in a subsequent action, and any conflicts in the evidence will be resolved by the trier of fact.” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 174.)
For purposes of summary judgment specifically, Buchmiller is precluded only from contradicting the allegations of his complaint, and any statements he made under oath and in response to discovery. “In the summary judgment context . . . a declaration which simply contradicts a prior discovery admission is not normally acceptable as substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) He is not, however, generally prohibited from taking a position in the case simply because it is inconsistent with statements he made in other contexts. Such inconsistency is simply a matter to be considered by a trier of fact, in determining whether Buchmiller’s claim is credible. Thus, although Buchmiller admitted to the voluntary resignation under oath, in response to discovery in this case, he remains free to dispute the evidence that he made that admission in some other context.
And the fact the Employment Development Department denied Buchmiller’s claim for unemployment benefits, based upon its conclusion he had voluntarily resigned, is likewise an insufficient basis upon which to preclude litigation of his involuntary termination claim. Such determinations are not entitled to collateral estoppel effect, and thus carry no weight in a separate civil proceeding alleging wrongful termination. (Unemp. Ins. Code, § 1960; Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488; Mahon v. Safeco Title Ins. Co. (1988) 199 Cal.App.3d 616.)
Unemployment Insurance Code section 1960 provides: “Any finding of fact or law, judgment, conclusion, or final order made by a hearing officer, administrative law judge, or any person with the authority to make findings of fact or law in any action or proceeding before the appeals board, shall not be conclusive or binding in any separate or subsequent action or proceeding, and shall not be used as evidence in any separate or subsequent action or proceeding, between an individual and his or her present or prior employer brought before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts.”
Despite these infirmities in Hines’ claim that Buchmiller affirmatively “resigned” his employment, we nonetheless conclude the undisputed evidence demonstrates Hines did not terminate the employment as alleged in Buchmiller’s complaint. According to Buchmiller, the “[m]ost glaring [problem] in Hines’ argument is the incorrect notion that the termination occurred on October 8, 2003. . . . This is completely contrary to the evidence and Buchmiller’s arguments. Indeed, Buchmiller sets forth in his Opening Brief the sequence of events that resulted in his termination, not on October 8, 2003, but in January of 2004.”
But Hines certainly did not weave the October 8, 2003 termination date out of whole cloth. To the contrary, it focused on that date because Buchmiller himself specifically alleged in his complaint that October 8, 2003, was the date his employment was terminated. Hines’ reliance on that factual allegation in connection with its summary judgment motion was thus entirely proper. The allegations of the complaint “are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) “‘[A] pleader cannot blow hot and cold as to the facts positively stated.’” (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146, quoting Manti v. Gunari (1970) 5 Cal.App.3d 442, 449.)
In this case, because Buchmiller expressly alleged that Hines wrongfully terminated him on October 8, 2003, that was the only wrongful termination claim Hines was obligated to negate in its summary judgment motion. It did so by relying upon the undisputed facts that: (1) after Buchmiller’s condition was pronounced “permanent and stationary” in the wake of his shoulder injury and initial surgery, his physician determined he was not able to return to his “usual and customary” work duties; (2) Hines had no permanent modified or alternative work available to offer him; (3) on October 8, 2003, Hines’ insurer did nothing more than inform Buchmiller by letter of those two circumstances, and of his resulting eligibility for vocational rehabilitation benefits; (4) after receiving that notification, Buchmiller continued to work at Hines until he took a voluntary leave of absence on October 31, 2003; and (5) no one at Hines ever told him or otherwise gave him any notice that his employment was terminated.
Those facts conclusively demonstrated that Hines did not terminate Buchmiller’s employment on October 8, 2003, as he alleged in his complaint.
Because Hines was not required to negate any claims other than those actually alleged in the complaint, it is simply immaterial that Buchmiller asserts there are triable issues of fact regarding whether Hines actually terminated his employment in early 2004, after he notified it he was ready to return to work in the wake of his second surgery. Whatever might be the merits of such a claim, it was not the one alleged by Buchmiller, and thus cannot be relied upon to oppose summary judgment.
IV
Buchmiller’s final argument is that the court erred in concluding his claim for negligent infliction of emotional distress fell within the exclusive province of the workers’ compensation law. He acknowledges the general rule that such claims, when they arise out of an alleged wrongful termination, must be adjudicated within the workers’ compensation system. (Pichon v. Pacific Gas & Electric Co., supra, 212 Cal.App.3d 488.) However, he contends this case falls within an exception to that general rule, applicable to statutory discrimination claims. According to Buchmiller, “where there exists a claim for disability discrimination, a related claim for emotional distress is not preempted by the workers’ compensation laws.” But the case he cites in support of that proposition, City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, says no such thing. Instead, the court there expressly declined to consider the issue. (Id. at p. 1161.) Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, another case relied upon by Buchmiller, does conclude that a claim of emotional distress arising out of disability discrimination is not preempted, but bases that holding entirely upon City of Moorpark – which, it bears repeating, expressly declined to consider the issue.
On the other hand, Jones v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 808, does conclude, after an analysis of the merits of the issue, that a claim for emotional distress caused by workplace discrimination in violation of the Fair Employment and Housing Act may be pursued outside the workers’ compensation system. But even assuming we agreed with Buchmiller’s analysis of the applicable law, and concluded his claim for emotional distress arising out of workplace discrimination could properly be pursued outside of the workers’ compensation system, the claim would nonetheless fail as a matter of law. Stated simply, Buchmiller has not raised any triable issue of fact in support of the claimed discrimination. The undisputed facts demonstrate that in the period leading up to the alleged termination of his employment, Buchmiller’s physician had concluded he could not perform the duties of his shop manager position, and that Hines had no other permanent alternative or modified work to offer him.
Moreover, Buchmiller offered no evidence, other than his own conclusory assertion, that he could have substantially fulfilled the duties of his former position, even with his restrictions, and thus that Hines could have accommodated his disability through reasonable modifications to his position. And that conclusory assertion is inconsistent with his detailed assessment of his job duties provided in connection with the job report created by Hines’ insurer. Buchmiller otherwise offered no evidence that Hines had engaged in other discriminatory acts, or otherwise refused to act reasonably toward him – either prior to or in conjunction with the alleged termination of his employment. On this record, there is simply no basis to conclude that Hines acted in a discriminatory fashion toward Buchmiller. Consequently, the court did not err in summarily adjudicating his claim for emotional distress arising out of Hines’ alleged discrimination.
As Hines points out, Buchmiller also cannot support this claim with evidence of events occurring after October 8, 2003, the date he specifically alleged his employment was terminated. Because such evidence is inconsistent with the factual allegations of the complaint, it cannot be considered in opposition to summary judgment.
The judgment is affirmed. Hines is to recover its costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.
“(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [¶] . . . [¶]
“(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”