Opinion
G061920
06-07-2024
MITCHELL FREEM, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; FEDERAL EXPRESS CORPORATION, et al., Real Parties in Interest.
Quintilone & Associates, Richard E. Quintilone II and Jeffrey T. Green for Petitioner. Craig E. Lindberg for Real Parties in Interest Federal Express Corporation and Andrew Sweet. Palmieri, Tyler, Wiener, Wilhelm & Waldron and Erica M. Sorosky for Real Party in Interest Andrew Sweet.
NOT TO BE PUBLISHED
Original proceedings; petition for writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Richard Y. Lee, Judge. Petition granted in part and denied in part. Super. Ct. No. 30-2020-01146234
Quintilone & Associates, Richard E. Quintilone II and Jeffrey T. Green for Petitioner.
Craig E. Lindberg for Real Parties in Interest Federal Express Corporation and Andrew Sweet.
Palmieri, Tyler, Wiener, Wilhelm & Waldron and Erica M. Sorosky for Real Party in Interest Andrew Sweet.
OPINION
SANCHEZ, J.
Petitioner Mitchell Freem worked as a senior vehicle technician for real party in interest Federal Express Corporation (FedEx) and reported to real party in interest Andrew Sweet, the fleet manager. Freem filed a complaint alleging Sweet harassed, discriminated, and retaliated against him because of his age. He also alleged FedEx wrongfully terminated his employment.
As pertinent here, the respondent court granted summary adjudication in favor of FedEx and Sweet on issues pertaining to punitive damages and Freem's causes of action for: (1) age discrimination; (2) harassment; (3) retaliation; and (4) failure to prevent discrimination, harassment, and retaliation. Freem filed a petition for writ of mandate, prohibition, or other extraordinary relief, seeking to set aside the court's order.
We issued an alternative writ limited solely to the age discrimination, harassment, and failure to prevent claims. We directed the respondent court to vacate its ruling granting the motion for summary adjudication (MSA) on those claims or show cause why a peremptory writ of mandate should not issue. In response, the respondent court held a hearing and maintained that it had properly granted summary adjudication.
For the reasons post, we agree with Freem's contention that the court erred by granting summary adjudication on his causes of action for: (1) age discrimination; (2) harassment based on age; and (3) failure to prevent discrimination and harassment. We accordingly grant Freem's petition solely as it relates to these latter claims.
We limit our summary of facts to those pertaining to Freem's age discrimination, harassment, and failure to prevent claims.
Freem's 18-year Employment at FedEx
Freem began working at FedEx in May 2000 as a part-time material handler loading FedEx packages. He was around 35 years old at the time. In February 2013, FedEx hired Freem as a full-time global vehicle technician at its Ontario facility. In 2014, Freem worked as a vehicle technician at FedEx's Irvine location when he was 49 years old. In 2015, FedEx promoted Freem to senior vehicle technician when he was 51 years old. From September 2017, to May 2018, Freem reported to Sweet, the fleet manager.
Responsibilities of FedEx Mechanics
While serving as a vehicle technician who reported to Sweet, Freem was responsible for performing maintenance or preventative maintenance (PM) on FedEx vehicles. FedEx vehicle mechanics generally maintain and repair FedEx vehicles. This includes performing PMs. The Department of Transportation (DOT) and the State of California require certain PMs to be performed every 90 days. The California Highway Patrol also audits certain PM inspection forms, which FedEx is required to retain for a certain period of time.
A computer program at FedEx tracks the date PMs are required to be performed on each vehicle. To perform a PM, the mechanic opens a repair order (RO) for the vehicle in FedEx's computer program and indicates the PMs to be performed. Failing to properly perform a PM or complete a PM inspection form can subject FedEx to fines and penalties from the DOT, the California Highway Patrol, and the State of California or trucks being taken out of service.
Suspension of Freem's Employment and Freem's Internal Complaint Against Sweet
In April 2018, Sweet suspended Freem with pay pending an investigation. The next month, Sweet had Freem answer several questions regarding work he had performed on two specific days.
Shortly after, Freem filed an internal equal employment opportunity complaint with FedEx's human resources department claiming Sweet had harassed and discriminated against him based on his age. Freem identified the following 13 ways in which he claimed Sweet harassed and discriminated against him.
On February 14, 2018, at 7:45 p.m., Freem called Sweet's mobile phone to ask work-related questions, and Sweet yelled: "[D]o not call me I have a life. I'm not like Jerry."
On March 28, 2018, an employee told another employee that he overheard Sweet talking to another employee and someone said, "Freem would never become a manager."
It is not clear who made the statement about Freem. Given that Freem included this in his internal complaint against Sweet, we presume Sweet made the statement.
On April 19, 2018, Freem spoke to Sweet at 5:23 p.m. and asked to work overtime on Saturday. Sweet did not allow it, but then on Friday, Sweet asked two younger technicians to work on Saturday.
On May 8, 2018, Sweet said to another employee: "I'm fucking firing Mitch and that will be the last time he will ask me to work another Saturday again!"
In March or April 2018, Sweet said to Freem and another employee that if they were to "leave a plastic tote in the office," "someone will get hurt! . . . I have a heavy hand ask my son!"
In February or March 2018, Freem entered Sweet's office and overheard another employee ask on the telephone "if [their] favorite employee [was] there." When
Freem asked what that meant, Sweet stated, "[W]e are wondering when you were going to become a manager."
In January, February, and March 2018, at the end of all meetings, Sweet asked another employee if he was hard on Freem.
In January, February, and March 2018, Sweet would often say to Freem: "[D]on't give me a reason to fire you."
On December 28, 2017, Sweet sent an e-mail to Freem stating: "[T]his shows you have only done 2 PM's this month. Not good. From this point on you have to do at least one [PM] a day if not two. Not good." Freem's internal complaint stated he had actually completed five PMs.
On December 18, 2017, Freem received an e-mail stating another employee had made an alleged error and Freem was responsible for the employee "to teach him, so this falls back on [Freem]."
On March 28, 2018, Freem "got a discriminating email [from] Andrew Sweet from him watching me on the new Camera System . . . to explain my timecard in detail."
Freem generally felt threatened if he did not comply with Sweet's orders "to add most of the time to an Asset, add parts to work orders that do not exist and throwing new parts away."
On May 4, 2018, when Freem left the investigation meeting, an employee heard Sweet state he was going to "Fire Someone Today!"
Freem's internal complaint next identified six ways in which Freem claimed Sweet harassed and discriminated against him based on his age. Some of the following overlap with the examples above.
On April 19, 2018, Sweet denied Freem's request to work overtime, and two younger technicians were allowed to work instead.
On December 28, 2017, Sweet told Freem he had only completed two PMs when Freem actually completed five PMs. Freem added: "I am treated like I am old and slow."
Freem felt like he was treated differently when Sweet "says to [him] if [he] cannot get stuff done [Sweet] will find someone who can." Freem added: "I am treated like I am old and slow."
On October 25, 2017, Freem "was treated differently in an email what [sic] said I see the same trucks [out of service] every day. I need this issue fixed. If you can't get the truck fixed in three days, I need to know why. If you don't know how to fix a truck you better ask someone, the next step will be to find someone who can. I hope I am making myself clear." Freem added: "I am treated like I am old and slow."
Sweet sent this e-mail to Freem and three other employees.
Freem felt like he was treated differently because he had to explain his timecard in an e-mail every few days when no one else had to do so.
Freem felt like he was treated differently because management "did not disclose new hire coming in at 3 year step when [he] was at 2 years" and "could have bid on the position."
Termination of Freem's Employment
On May 24, 2018, FedEx terminated Freem's employment when he was 53 years old. The termination letter stated, "[O]ur findings conclude that you falsified Company Documents, Timecards & PM Forms. As a result, your employment is being terminated . . . ."
A few days later, Freem filed an appeal pursuant to FedEx's policies and claimed his termination was unfair. In June 2018, FedEx sent a document to Freem explaining management's rationale for terminating his employment. The document noted some of Freem's timecards and PM forms were inaccurate and indicated work he did not actually do. FedEx ultimately upheld its decision to terminate Freem's employment.
In December 2018, FedEx filled Freem's position as a vehicle technician with someone who was 41 years old.
Termination of Sweet's Employment
In August 2018, FedEx terminated Sweet's employment. FedEx investigated Freem's internal complaint against Sweet and determined Sweet "had used inappropriate language to a few mechanics in violation of Fed Ex policy [and] the comments were unrelated to age." But FedEx claimed there was no evidence Sweet harassed, discriminated against, or retaliated against Freem based on his age.
Freem's Complaint
In May 2020, Freem filed the operative complaint against FedEx and Sweet alleging five causes of action: (1) age discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment, retaliation; and (5) wrongful termination in violation of public policy. The first four claims were brought under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
All further statutory references are to the Government Code unless otherwise stated.
According to the complaint, Sweet harassed, discriminated, and retaliated against Freem because of his age. Among other things, the complaint also alleged Freem was wrongfully terminated from his employment in May 2018 because of his advancing age and because he complained about unlawful employment practices at FedEx. The complaint further alleged FedEx's stated reasons for terminating Freem's employment were pretext for discrimination based on Freem's age and in retaliation for his reporting of unlawful conduct in the workplace.
FedEx and Sweet's Motion for Summary Judgment
In May 2022, FedEx and Sweet moved for summary judgment, or in the alternative summary adjudication, seeking judgment in their favor on the complaint. With respect to Freem's age discrimination claim, they argued FedEx terminated Freem's employment for legitimate, nondiscriminatory reasons-because Freem falsified timecards, repair orders, and DOT PM forms by indicating work on FedEx vehicles he had not actually performed. They further argued there was no evidence FedEx's reason for terminating Freem's employment was untrue or pretextual.
Regarding Freem's harassment cause of action, they noted Freem's internal complaint against Sweet had identified numerous comments that Sweet had made to him. They argued those comments were not based on Freem's age and were not severe or pervasive.
Finally, they argued Freem could not prevail on his failure to prevent claims because he did not suffer any discrimination, harassment, or retaliation. In any event, FedEx claimed it took reasonable steps to prevent any discrimination, harassment, or retaliation because it had policies prohibiting the latter actions, it investigated Freem's internal complaint against Sweet, and terminated Sweet's employment.
In support of their motion, they submitted evidence of the material undisputed facts summarized ante, including FedEx's decision to terminate Freem's employment. Among other things, they submitted Sweet's declaration. Sweet testified he found discrepancies in Freem's timecards, ROs, and PM forms during an audit.Sweet reviewed security video of the shop where Freem worked and compared time entries on Freem's timecards to what he appeared to be doing in the security video.
We need not summarize the details regarding Freem's timecards, ROs, or PM forms because, as discussed post, we agree these documents provided a potential nondiscriminatory reason to terminate Freem's employment. The key issue is whether Freem raised a triable issue of material fact as to pretext-i.e., whether Sweet's reliance on Freem's timecards, ROs, or PM forms to terminate his employment was pretextual.
Sweet also prepared an Excel spreadsheet to document the discrepancies he observed between Freem's timecards and what he observed in the security video.
FedEx and Sweet also submitted evidence regarding FedEx's antidiscrimination policies, other vehicle mechanics over 50 years old who still work for FedEx, Freem's internal complaint against Sweet, Sweet's e-mail communications with Freem and other employees, and overtime work by employees who were younger than Freem.
Freem's Opposition to the Motion for Summary Judgment
In opposition to the motion for summary judgment, Freem argued he never falsified any documents during his employment at FedEx. Instead, he claimed FedEx's purported reason for terminating his employment was pretext for age discrimination and retaliation for his wage and safety complaints. Regarding his harassment claim, Freem argued Sweet made comments based on Freem's age and other threats of violence that were severe and pervasive. Finally, Freem argued his failure to prevent claim should proceed to trial because the underlying causes of action raised triable issues of fact. He alternatively claimed FedEx took no steps to prevent Sweet's harassment or discrimination.
In support of his opposition, Freem submitted evidence of why he completed his timecards the way he did. He testified he followed the direction of management and Sweet to have all time "charged to an asset" because they "didn't want any . . . fluff time." He further explained, "They just say put them all in the truck . . . you know, put it to a vehicle asset. Everything was always added to a vehicle asset. That's what we were told." Sweet similarly testified an employee could work on non-PM tasks and enter the work as a PM if it did not violate a "15-minute rule." Freem further provided evidence that the timecards included the following language: "The schedule for each activity is entered by the employee and may not match actual time worked."
With respect to Sweet's investigation of Freem and his review of security footage, Freem submitted evidence that only Sweet and a security employee reviewed the alleged video evidence. No one else reviewed the video evidence, and it was no longer available at the time of Freem's lawsuit. Freem also pointed to portions of Sweet's deposition testimony where he testified Freem was not the only vehicle technician with inconsistencies on ROs versus timecards. But Sweet testified he did not review video footage for all the vehicle technicians he supervised. Finally, Sweet did not interview any other witnesses to corroborate that Freem was falsifying timecards or PM forms.
Regarding Sweet's harassment and discrimination, Freem relied on the instances he previously identified in his internal complaint against Sweet. To support those instances, Freem provided excerpts of Sweet's deposition testimony admitting Sweet had yelled at Freem to not call him on one occasion because Sweet had a life. In another portion of the deposition excerpt, Sweet admitted he had said "'Someone will get hurt'" and thought he also said "'I have a heavy hand. Ask my son.'" Sweet further testified it was possible he told Freem: "'Don't do anything to make me fire you.'" Sweet also admitted it was possible he asked another employee if he was too hard on Freem and that he said, "'I'm fucking firing Mitch and he'll never ask me to work another Saturday.'" With respect to Freem's belief that he was treated like he was old and slow, he relied on his own deposition testimony. Freem testified Sweet would tell him he needed to do more PMs and always insinuated Freem was old and slow. In another instance, Freem testified: "[Sweet] made a comment for me being slow and not getting stuff done." Freem further provided evidence Sweet was terminated from FedEx due to unacceptable conduct and pointed to Sweet's testimony that he believed he was fired, in part, because of his "heavy hand comment."
As additional support for Sweet's harassment and discrimination, Freem provided evidence that he asked Sweet to work overtime on a Saturday, but Sweet did not allow it and instead permitted two younger employees to work overtime on that day.
Freem also relied on evidence that FedEx follows a "rotation of seniority" overtime policy whereby vehicle mechanics can work overtime based on rotational seniority.
The Court's Order
In its tentative ruling, the court identified the following issues for summary adjudication:
Issue 1: whether FedEx is entitled to summary adjudication on the age discrimination claim because Freem cannot state a prima facie case; Fedex had a legitimate, nondiscriminatory reason for firing Freem, and Freem has no substantial evidence of pretext.
Issue 2: whether FedEx is entitled to summary adjudication on the age discrimination claim because Freem cannot state a prima facie case; FedEx had a legitimate, nondiscriminatory reason for not promoting Freem; Freem has no substantial evidence of pretext; and Freem failed to timely exhaust administrative remedies.
Issue 3: whether FedEx is entitled to summary adjudication on the harassment based on age claim because Freem failed to exhaust administrative remedies, and the alleged comments were not based on age and were neither severe nor pervasive.
Issue 4: whether FedEx is entitled to summary adjudication on the retaliation claim because Freem cannot show the required causal connection between protected activity and adverse employment action; FedEx had a legitimate, nonretaliatory reason for firing Freem; and Freem has no substantial evidence of pretext.
Issue 5: whether FedEx is entitled to summary adjudication on the failure to prevent claim because Freem's underlying claims based on age fail, and FedEx took reasonable actions once the complained of conduct was reported.
Issue 6: whether FedEx is entitled to summary adjudication on the wrongful termination claim because the underlying claims based on age fail. Issue 7: whether FedEx is entitled to summary adjudication on Freem's requests for punitive damages.
Issue 8: whether Sweet is entitled to summary adjudication on the harassment based on age claim because Freem failed to exhaust his administrative remedies, and the alleged comments were not based on age and were neither severe nor pervasive. Issue 9: whether Sweet is entitled to summary adjudication on Freem's requests for punitive damages.
In August 2022, the court denied the MSA as to issue 6 on the wrongful termination cause of action but granted the MSA on all remaining issues.
As to issues 3 and 8, the court granted the MSA "because the alleged comments were not based on age and were neither severe, nor pervasive."
Freem's Petition for Writ of Mandate
In response, Freem filed a petition for writ of mandate, prohibition, or other extraordinary relief in October 2022. He requested we stay the trial court proceedings pending a decision on his petition and reverse the court's ruling granting summary adjudication.
In October 2022, we issued an order inviting an informal response from FedEx and Freem and issued a temporary stay of all proceedings. In February 2023, we issued an alternative writ directing the trial court to: (1) vacate its ruling granting the MSA as to Freem's claims for age discrimination, harassment based on age, and failure to prevent harassment, discrimination, or retaliation; or (2) show cause why a peremptory writ of mandate should not issue. We also dissolved the prior stay of proceedings.
The Court's Second Order
In response, the trial court held a hearing in March 2023 and maintained that it had properly granted summary adjudication on Freem's claims for age discrimination, harassment based on age, and failure to prevent harassment, discrimination, or retaliation. The court agreed Freem was a member of the protected class, he was fired, and he was harassed by Sweet. But the court held FedEx had established a legitimate, nondiscriminatory reason for terminating Freem's employment - i.e., falsification of company documentation, timecards, and PM forms. The court noted the burden shifted to Freem to offer substantial evidence that FedEx's reasons were untrue or pretextual, evidence of discriminatory animus, or a combination of the latter two. In finding Freem did not meet his burden, the court considered Freem's evidence.
First, the court held Freem's assertion that he did not falsify timecards or PM forms was insufficient to create a triable issue or to show pretext because the key issue was whether Freem and Sweet did not honestly believe Freem had violated FedEx policy. The court added that a managing director, not Sweet, upheld the decision to terminate Freem's employment.
Second, the court considered the incidents Freem identified in his internal complaint against Sweet. Assuming those allegations were true, the court held Freem did not establish Sweet's comments and actions were due to Freem's age. According to the court, "The only thing that [Freem] offers is his own subjective belief that he was being treated like he was 'old and slow.'" The court noted it previously attributed the "slow" comment to Sweet, but upon further review of the evidence, the court did not find support for that attribution. While the court acknowledged it was reasonable to infer Sweet believed Freem was slow at his job, the court did not believe this was an age-related comment on its own. The court next noted there was only one incident that could give rise to an inference Freem was discriminated or harassed due to his age: Freem's request to work overtime on a Saturday, in April 2018, and Sweet's rejection of that request even though two younger employees were allowed to work on that day. The court concluded the inference could not be drawn because Freem worked six Saturdays of overtime for a total of 44 hours from January 1, 2018, to April 25, 2018. The court added that two younger employees had worked less overtime during the same time period. The court also emphasized it was undisputed Sweet had refused Freem's overtime request because Freem was already under investigation. While the court acknowledged Sweet "made a number of uncivil, and inappropriate remarks and threats," it concluded Freem had not raised a triable issue as to pretext and failed to "demonstrate the necessary causal link between prohibited motivation and termination or harassment."
DISCUSSION
Freem contends the court incorrectly granted summary adjudication on his claims for age discrimination, harassment based on age, failure to prevent discrimination, harassment, and retaliation. We agree the court erred because Freem established triable issues of material fact as to these claims.
Freem also argues the court erred by granting summary adjudication on his retaliation and punitive damages claims. We need not address those arguments because we issued an alternative writ limited to the age discrimination, harassment, and failure to prevent claims. In other words, Freem's petition was denied with respect to his arguments regarding the retaliation cause of action or issues pertaining to punitive damages. We note punitive damages may be imposed on an employer for acts of an employee if the employer: (1) had advance knowledge the employee was likely to inflict injury on others and employed him with conscious disregard for the rights or safety of others; or (2) authorized or ratified the employee's wrongful conduct; or (3) was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) Here, there was no evidence an officer, director, or managing agent of FedEx had the requisite knowledge, authorized or ratified Sweet's conduct. (Ibid.)
Standard of Review
"'A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.' [Citation.] 'A prima facie showing is one that is sufficient to support the position of the party in question.'" (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.)
"In reviewing an order granting summary adjudication, 'we apply the same standard of review applicable on appeal from a grant of summary judgment. [Citation.] Accordingly, "' . . . we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] "'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party. . . .'"'" (Rehmani v. Superior Court, supra, 204 Cal.App.4th at pp. 950-951.)
Age Discrimination
A. Burden-shifting Standard Applicable to FEHA Discrimination Claims "'California uses the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination based on a theory of disparate treatment. [Citations.] "This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained."'" (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 820-821 (Wilkin).)
"'[T]he plaintiff has the initial burden of establishing a prima facie case of discrimination. [Citation.] To meet this burden, the plaintiff must, at a minimum, show the employer took actions from which, if unexplained, it can be inferred that it is more likely than not that such actions were based on a prohibited discriminatory criterion. [Citation.] A prima facie case generally means the plaintiff must provide evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive.'" (Wilkin, supra, 71 Cal.App.5th at p. 821.)
"'If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason. [Citation.] If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive.'" (Wilkin, supra, 71 Cal.App.5th at p. 821.)
"'"A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing [his or] her evidence while strictly scrutinizing defendant's."'" (Wilkin, supra, 71 Cal.App.5th at p. 822.)
Here, FedEx does not dispute Freem established a prima facie case because he was replaced by a substantially younger technician who was 41 years old. We agree and further find the trial court correctly held FedEx presented evidence of nondiscriminatory reasons for terminating Freem's employment. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160 [noting the employer's burden is not an "onerous" one].) But we disagree with the trial court's findings regarding Freem's burden on the issue of pretext.
B. Evidence of Pretext
Freem satisfied his burden of presenting evidence raising a triable issue as to whether the cause for his termination was pretextual. First, he pointed to evidence that Sweet called him "slow," which could reasonably imply age. The trial court stated it had mistakenly attributed the "slow" comment to Sweet when the only evidence was Freem's subjective belief that he was treated like he was "old" or "slow." While Freem testified Sweet always insinuated he was old and slow, he also testified: "[Sweet] made a comment for me being slow and not getting stuff done." This testimony directly attributes the "slow" comment to Sweet.
Second, Freem pointed to evidence that Sweet only investigated him (and not other subordinates) via a review of security footage. Sweet and a security employee were the only ones who reviewed the alleged video evidence, which was no longer available at the time of Freem's lawsuit. Sweet did not review video footage for other employees under his supervision even though there were employees who had inconsistencies on ROs versus timecards. Indeed, Freem pointed to portions of Sweet's deposition testimony where he testified Freem was not the only vehicle technician with inconsistencies on ROs versus timecards.
Citing Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666 (Reeves), the concurring and dissenting opinion suggests any spoliation of evidence by FedEx or Sweet does not create a triable issue of material fact. (Conc. & dis. opn. at p. 9, post.) In Reeves, a 56-year-old plaintiff sought a position in a corporate general counsel's office, but the position was awarded to another applicant who was 40 years old. (Reeves, at p. 669.) The court held plaintiff had not shown the defendant employer's hiring decision was pretext for age discrimination because the winning candidate had several advantages plaintiff did not have. (Id. at pp. 675-677.) The court also rejected the plaintiff's contention that the defendant's spoliation of job applications created a triable issue as to pretext. (Id. at pp. 681-682.) The court explained: "[S]poliation of evidence alone does not necessarily create a triable issue" (id. at p. 682, italics added) because there also must be some evidence for the plaintiff's cause of action to survive summary judgment (ibid).
Reeves is inapposite. Freem did not rely solely on the spoliation of evidence to support his cause of action. In any event, an employer's destruction of job applications is not comparable to spoliation of video footage that could conclusively prove or disprove an employer's stated reason for terminating employment. In other words, the video footage would resolve the issue of whether Freem falsified his timecards or other documentation, but we are left only with Sweet's interpretation of what he reviewed. Sweet's testimony about the security footage and what he observed are credibility issues for the jury to resolve, particularly where the video footage is no longer available.
Third, Freem provided evidence suggesting the discrepancies on his timesheets and documentation were pursuant to management's instructions and common practice by other employees. He testified he completed his timesheets and documentation the way he did because management and Sweet told employees to have all time "charged to an asset" because they "didn't want any . . . fluff time." He also testified, "They just say put them all in the truck . . . you know, put it to a vehicle asset. Everything was always added to a vehicle asset. That's what we were told." Indeed, Freem testified he completed his timesheets and documentation the same way as his colleagues did pursuant to management instruction. "Showing disparate treatment or policy enforcement is a permissible means to establish pretext." (Wills v. Superior Court, supra, 195 Cal.App.4th at p. 172.)
Relying on Sweet's deposition testimony, the trial court suggested it was unreasonable to infer Freem was treated differently from other employees who were not in the protected class because "the errors and inaccuracies on the [employees'] timecards and repair orders are not the same degree." Sweet clearly testified Freem was not the only employee under his supervision who had inconsistencies on ROs versus timecards. He acknowledged: "Everybody makes the little mistake here and there." When asked if he reviewed "all of those other people's videos," Sweet testified he did not "because they weren't the same." This testimony is ambiguous as to what was not "the same." Indeed, it appears Sweet did not even complete his statement because counsel interjected: "That's not my question."
Fourth, in Freem's internal equal employment opportunity complaint, he stated Sweet often threatened: "[D]on't give me a reason to fire you." (Italics added.) Sweet testified he may have made this statement and may have asked another employee if he was too hard on Freem. This evidence raises questions as to whether Sweet was looking for a reason to fire Freem and whether Freem was targeted. In other words, a jury might find the nondiscriminatory basis for terminating Freem was a pretextual "reason to fire" him or that Sweet did not honestly believe Freem's timecards violated FedEx's policies.
Finally, Freem presented evidence that FedEx fired Sweet shortly after terminating Freem's employment. FedEx investigated Freem's internal complaint against Sweet and determined Sweet had used inappropriate language to a few mechanics in violation of company policy. Sweet testified that he believed he was fired, in part, because of his comment to Freem and another employee that he had a "heavy hand" and to "ask his son." A jury might determine these facts show the stated reason for terminating Freem's employment was based on pretext.
We are less persuaded by Freem's contention that he was routinely denied requests for overtime when other younger employees were allowed overtime. The only evidence on this point is one occasion when Freem asked Sweet to work overtime and was not allowed to do so, but then two younger employees were allowed to work overtime on that day. But between January 1, 2018, and April 25, 2018, Freem worked 6 Saturdays of overtime for a total of 44 hours. The two younger employees worked less overtime during that time period. It also is undisputed that Freem was denied overtime on the one occasion because he was under investigation at that time.
We likewise are not persuaded by the concurring and dissenting opinion's argument that FedEx hired mechanics over the age of 50 after Freem's discharge. (Conc. & dis. opn. at p. 10, post.) These contrary facts do not conclusively establish the absence of age discrimination against Freem. Indeed, "to hold that evidence that an employee is replaced by an older person conclusively establishes the absence of age discrimination would provide an employer who had actually discriminated based upon age with an absolute defense." (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 74; see O'Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, 312, ["The fact that one person in the protected class has lost out to another person in the protected class is . . . irrelevant, so long as he has lost out because of his age" (italics omitted)].)
Regardless, viewing the evidence in the light most favorable to Freem and liberally construing his evidence while strictly scrutinizing FedEx's evidence, as we must, we conclude Freem satisfied his burden of presenting evidence raising a triable issue on the issue of pretext.
Harassment Based on Age
Section 12940, subdivision (j)(1), defines "unlawful employment practice" to include harassment in the workplace based on age. To establish a prima facie case of a age harassment, Freem must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his protected status (age); (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is responsible for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
The trial court acknowledged Sweet harassed Freem, but the court held Freem could not establish a claim for harassment because Sweet's comments and actions were not based on Freem's age and were neither severe nor pervasive. We disagree.
A. Unwelcome Harassment Based on Age
FedEx and Sweet do not dispute Freem was a member of a protected class or that he was subjected to unwelcome harassment. We accordingly need not address these issues.
Freem presented evidence that Sweet called him "slow," which a factfinder could reasonably find was an age-related comment. Freem also testified Sweet would tell him he needed to do more PMs and always insinuated Freem was old and slow. "A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." (§ 12923, subd. (b).)
In any event, Freem presented additional evidence. When speaking to Freem and another employee, Sweet threatened someone would "get hurt," and said he had a "heavy hand" and to "ask [his] son." Freem also presented evidence that Sweet yelled at Freem to not call him because Sweet "had a life" and told another employee he was going to "fucking fire [Freem] and that will be the last time he will ask me to work another Saturday again." Sweet also testified it was possible he told Freem: "'Don't do anything to make me fire you." A factfinder might interpret these comments to mean Sweet infantilized Freem due to his age. There is no doubt Sweet was a person of authority and spoke to Freem in a condescending and patronizing manner.
FedEx and Sweet argue these comments have nothing to do with age and note the "heavy hand" comment was made to both Freem and another younger employee. But "[t]he existence of a hostile work environment depends upon the totality of the circumstances . . . ." (§ 12923, subd. (c).) Many of the threats were made only to or about Freem. Indeed, Sweet asked a younger employee if he was too hard on Freem. As discussed ante, Sweet also only investigated security video footage for Freem and not other employees who had discrepancies on their documentation. A jury could conclude Sweet's harassing comments, when considered in combination with these other facts, were due to Freem's age.
B. Severe or Pervasive Harassment
FedEx and Sweet next contend Sweet's conduct was not severe or pervasive enough to constitute harassment. A plaintiff "'"must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he] was actually offended."'" (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 583.) "Prior to 2019, this requirement was quite a high bar for plaintiffs to clear, even in the context of a motion for summary judgment. But section 12923, which went into effect on January 1, 2019, clarified existing law in numerous respects. One such clarification, codified in subdivision (b), stated that '[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive work environment'" (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878.)
Here, Sweet testified he believed FedEx fired him, in part, because of his "heavy hand comment." This alone suggests Sweet's conduct was severe and not trivial. We also must acknowledge a triable issue exists because Freem alleges Sweet's comments created a hostile work environment. We decline to insert our own subjective viewpoint and to judge the severity of Sweet's comments and conduct. As pertinent here, section 12923, subdivision (e), states: "Harassment cases are rarely appropriate for disposition on summary judgment."
For the foregoing reasons, there is a triable issue as to whether Freem was subjected to unwelcome harassment based on his age.
Failure to Prevent Harassment or Discrimination
It is unlawful for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).) "When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination or harassment [he] must show three essential elements: 1) plaintiff was subjected to discrimination, harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and 3) this failure caused plaintiff to suffer injury, damage, loss or harm." (Lelaind v. City and County of San Francisco (N.D.Cal. 2008) 576 F.Supp.2d 1079, 1103; see Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 43 [quoting Lelaind].)
The trial court's reason for rejecting Freem's failure to prevent claim was based on its conclusion that Freem had not raised a triable issue of fact on his claims for age discrimination and harassment. We disagree and find Freem raised triable issues of fact as to whether he was discriminated or harassed based on his age. Summary adjudication accordingly should not have been granted on this ground.
FedEx further argues it has antiharassment and antidiscrimination policies in place along with procedures for handling related complaints. It points to evidence that Freem filed an internal complaint, and FedEx investigated Sweet and ultimately fired him for inappropriate comments made to employees. But Freem raised a triable issue of material fact regarding whether the discrimination or harassment occurred. A factfinder could reasonably determine FedEx failed to effectively enforce its policies in the first place or that the steps FedEx took to prevent discrimination and harassment were ineffective. (Caldera v. Department of Corrections & Rehabilitation, supra, 25 Cal.App.5th at p. 44 [finding summary judgment was not warranted where the jury could have determined the employer's steps to prevent harassment were not effective].)
DISPOSITION
The petition is granted in part. Let a peremptory writ of mandate issue ordering respondent court to vacate its August 29, 2022, and March 14, 2023 orders granting FedEx and Sweet's motion for summary adjudication on Freem's causes of action for age discrimination, harassment based on age, and failure to prevent harassment and discrimination, and to enter a new order denying the motion on those causes of action. The petition is otherwise denied. The order to show cause is discharged. Freem shall recover his costs incurred in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
As noted ante, we issued an alternative writ limited to the age discrimination, harassment, and failure to prevent claims. As such, Freem's petition is denied with respect to his arguments regarding the retaliation cause of action or issues pertaining to punitive damages.
I CONCUR: MOORE, ACTING P. J.
MOTOIKE, J., Concurring and Dissenting.
I concur with the majority opinion in denying the portion of Mitchell Freem's amended petition for a writ of mandate (petition), which challenges the order granting summary adjudication of both his retaliation claim under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and prayer for punitive damages. I respectfully dissent from the majority opinion's grant of the petition, however, as to Freem's FEHA claims for age discrimination, harassment based on age, and failure to prevent harassment and discrimination, and its order directing the trial court to vacate its order granting summary adjudication and enter a new order denying the motion as to those claims.
All further statutory references are to the Government Code.
I believe the trial court properly granted Federal Express Corporation (FedEx) and Andrew Sweet's motion for summary adjudication (motion) as to Freem's FEHA claims, and the petition should be denied in its entirety, because Freem failed to show a triable issue of material fact he suffered age discrimination or harassment based on his age. The record contains no evidence his age (53 years) had anything to do with the termination of his employment or his supervisor's harassing behavior. This is the relatively rare case where an employer has presented an overwhelming amount of relevant, undisputed evidence establishing the dearth of a triable issue of material fact as to those claims. As Freem's claim FedEx failed to prevent harassment and discrimination is entirely dependent upon the viability of his age discrimination and harassment claims, the trial court properly granted summary adjudication as to that claim as well.
I.
THE AGE DISCRIMINATION CLAIM
I agree with the majority opinion that in the motion, FedEx carried its burden of presenting evidence of nondiscriminatory reasons for terminating Freem's employment. As explained in the majority opinion at pages 16-17, once the employer satisfies its burden of presenting substantial evidence of nondiscriminatory reasons for an employee's employment termination, the burden shifts to the employee to "adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred." (Wilkin v. Community Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 822 (Wilkin).)
Freem alleged in his complaint FedEx engaged in age-based discrimination not only by terminating his employment but also by failing to promote him. In the amended petition, Freem reasserts, in 2017, he "did not receive a promotion to fleet maintenance manager due to his age." It is undisputed, however, Freem withdrew his application for a promotion to a management position from consideration and thus was never denied a promotion. It is also undisputed FedEx urged Freem to reconsider his decision to withdraw his application but he refused to resubmit it. Consequently, Freem's age discrimination claim fails to the extent it is based on FedEx's failure to promote Freem because FedEx never took such an adverse employment action against him. Notably, that management position was filled in September 2017 by Sweet, who is less than four years younger than Freem.
I disagree with the majority opinion's conclusion Freem satisfied this burden. To the contrary, our record is devoid of any evidence showing FedEx acted with discriminatory animus based on Freem's age, "'"or evidence . . . which would permit a reasonable trier of fact to conclude [FedEx] intentionally discriminated"'" on that basis. (Wilkin, supra, at p. 824.)
A.
Freem Had the Burden of Producing Evidence of Pretext
To show an employer's reason for an adverse employment action is pretextual, an employee "'"cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent."' [Citation.] To meet his or her burden, the employee '"must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,'"' and hence infer '"'that the employer did not act for [the asserted] non-discriminatory reasons.'"' [Citation.] '[I]f nondiscriminatory, [the employer's] true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer's proffered reasons supports their credibility . . ., the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, "legitimate" reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.'" (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159-1160 (Featherstone).)
B.
Summary of the Undisputed Evidence Showing Freem Repeatedly Submitted Inaccurate Timecards, Repair Orders, and/or PM Inspection Forms
The determination whether FedEx's stated reasons for terminating Freem's employment were merely a pretext for age discrimination requires review of the undisputed evidence supporting those reasons, which evidence I summarize as follows:
1. Procedures for Preventative Maintenance of FedEx Vehicles
As a FedEx vehicle technician, Freem was responsible for conducting, inter alia, "preventative maintenance" (PM) on FedEx vehicles. When performing a "PM 17," a technician must change the oil and oil filter and perform a lube and safety check of the vehicle. A PM 17 usually takes no more than 30 to 45 minutes to perform.
In the record, the term "vehicle technician" is used interchangeably with the terms "vehicle mechanic" and "mechanic."
A "PM 9" is a much more thorough inspection which usually takes between 90 and 120 minutes to perform. The Department of Transportation and the State of California require PM 9's to be performed on vehicles every 90 days. The California
Highway Patrol audits FedEx's PM 9 inspection forms and requires FedEx to retain such forms for 24 months. The failure to properly perform and document PM's can result in severe penalties and fines from the State of California, the Department of Transportation, and the California Highway Patrol.
FedEx uses the computer program "Shop Floor" to track dates by which PM's must be performed. The Shop Floor PM report identifies those vehicles for which a PM 9 must be performed within 30 days; the technicians use those reports to prioritize the vehicles they work on.
To perform a PM, the technician opens a repair order for the vehicle in Shop Floor. In the "Labor" section of the repair order, the technician specifies whether the technician will be performing a PM 17, a PM 9, or both. After the technician has indicated in the repair order that a PM 9 has been performed on a particular vehicle, the PM due date for that vehicle is "'cleared.'" The vehicle is then removed from the PM report identifying the vehicle as due for required maintenance, and Shop Floor calculates the date that vehicle is due for its next PM 9.
The PM inspection form identifies the specific tasks a technician must perform to complete a PM 17 inspection in the upper left-hand quadrant of the PM inspection form. The items a technician must perform to complete a PM 9 inspection are located on the remaining three quadrants on page one of the PM inspection form and the entire second page of the form. The PM inspection form is not completed properly if a box is left blank. If a checkoff box does not apply to the vehicle, then the technician must use the letters "N/A= NOT APPLICABLE" as set forth on page one of all PM inspection forms. Failing to properly complete a PM or its corresponding PM inspection form can subject FedEx to fines, penalties, or trucks being taken out of service.
2. The Undisputed Evidence of Discrepancies in Freem's Timecards, Repair Orders, and PM Inspection Forms
Freem reported to Sweet from September 2017 until Freem's employment was terminated effective May 24, 2018. During his routine half yearly audit of every vehicle technician's time cards, repair orders, and PM forms, Sweet found discrepancies involving Freem's time cards, repair orders, and PM inspection forms. As part of his investigation, Sweet reviewed security video of the shop where Freem worked, compared the time entries on Freem's time cards to what Freem was actually doing as observed on the security video, and created an excel spreadsheet to document the discrepancies he observed between the two. FedEx produced evidence of the following discrepancies:
For vehicle No. 246834, Freem (1) reported on his February 3, 2018 time card he spent two and one-half hours performing a PM; (2) stated on the repair order he performed a PM 11 on the vehicle but did not check all of the boxes on the PM inspection form; (3) admitted he "left boxes unchecked for the things [he] did not perform"; and (4) in an February 13, 2018 e-mail to Sweet, explained he had been "in a little rush to complete the p.m." and "missed some items."
For vehicle No. 261005, on February 24, 2018, Freem reported on the repair order he performed a PM 9 and a PM 17 between 10:00 a.m. and 12:00 p.m. From watching the February 24, 2018 security video, however, Sweet observed Freem did not pull that vehicle into the shop until 10:50 a.m.-50 minutes after Freem stated he started the PM's. Also, Sweet never saw Freem change the oil or the oil filter of the vehicle; Freem did not offer evidence showing he had in fact changed the vehicle's oil or oil filter.
In opposition to the motion, Freem offered excerpts from Sweet's deposition testimony stating when an employee performs work functions which do not have an existing code, the employee may input his or her time worked "towards just about anything," including putting "maybe 10, 15 minutes" on a PM 9 entry pursuant to "the 15-minute rule." Sweet explained the 15-minute rule is a FedEx policy allowing an employee to "add a few minutes here and there and catch up on your work." It is undisputed chapter 8 of FedEx's Global Vehicles Manual codifies the rule as follows: "Fifteen (15) minute rule. Any non-repair time such as vehicle movement, shop clean up, parts ordering/retrieving should be included as part of the repair or service time of the equipment being worked on. If greater than 15 minutes the appropriate indirect time card code should be used. Example: Vehicle-GSE equipment movement-time less than 15 minutes spent retrieving a vehicle or piece of GSE equipment to be repaired or serviced should be included in that service or repair. For time over 15 minutes techs are to use time card code 39 'Vehicle/GSE Movement.[']" Freem did not offer any evidence the 15-minute rule was only enforced against him, that he was ever instructed to ignore the rule, or that any other vehicle technicians violated the rule, much less that they violated it as often and to the same extent as Freem.
For vehicle No. 242735, Freem reported on his February 24, 2018 time card he performed a PM and indicated in the repair order he performed both a PM 9 and a PM 17. None of the boxes on the PM 9 inspection form, however, were checked by Freem.
For vehicle No. 246899, Freem reported on his February 28, 2018 time card he performed a PM on that vehicle from 10:35 p.m. to 12:30 a.m., and indicated on the corresponding repair order he had performed both a PM 9 and a PM 17. None of the boxes on the PM 9 inspection form, however, were checked by Freem.
For vehicle No. 261000, Freem reported on his March 24, 2018 time card he performed a PM for two hours and 20 minutes, from 9:50 a.m. to 12:10 p.m. Watching the March 24, 2018 security video, Sweet observed Freem did not pull that vehicle into the shop until 10:16 a.m. and did not begin working on it until 10:32 a.m. Also, Freem indicated in the corresponding repair order he performed both a PM 9 and a PM 17, but he did not check any boxes on the PM 9 inspection form.
For vehicle No. 256420, Freem reported on his March 24, 2018 time card he performed a PM from "12:35 p.m. to 13:45 p.m., and 15:08 to 16:08," for a total of two hours and 10 minutes. Freem indicated in the corresponding repair order he performed both a PM 9 and a PM 17. Freem, however, did not check any boxes on the PM 9 inspection form.
Sweet concluded Freem falsified (1) his February 3, 2018 time card and the PM inspection form for vehicle No. 246834; (2) his February 24, 2018 time card and PM inspection form for vehicle No. 242735; (3) the PM inspection form for vehicle No. 246899; (4) his March 24, 2018 time card and the PM inspection form for vehicle No. 261000; and (5) the PM inspection form for vehicle No. 256420. On April 25, 2018, Sweet suspended Freem with pay pending an investigation. FedEx terminated Freem's employment effective May 24, 2018, explaining in a letter of that same date, "our findings conclude that you falsified Company Documents, Timecards & PM Forms. As a result, your employment is being terminated effective 5/24/2018."
C.
Freem Did Not Carry His Burden of Showing Pretext
As FedEx satisfied its burden of presenting substantial evidence of its nondiscriminatory reasons for Freem's employment termination, the burden shifted to Freem to present evidence FedEx's reason for terminating his employment were "'either false or pretextual.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) He must therefore show there were contradictions or incoherencies in FedEx's stated reasons. (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 164 (Martin).) He did not do so.
Although Freem offers his conclusion in the amended petition he did not "falsify" time cards, repair orders, or PM inspection forms, Freem does not challenge the accuracy of FedEx's evidence of the above described discrepancies in his documentation. (See Usher v. White (2021) 64 Cal.App.5th 883, 901 ["'[A]n issue of fact is not raised by "cryptic, broadly phrased, and conclusory assertions" [citation], or mere possibilities'"].) Specifically, Freem has not offered any evidence disputing (1) any of the above described discrepancies Sweet found during his audit of Freem's time cards, repair orders, and PM inspection forms; (2) the discrepancies were found in the course of a regular audit Sweet must perform for all vehicle technicians; (3) any attribution on time cards and related documentation of non-PM work as PM work was permitted as long as the amount of such work did not exceed FedEx's 15-minute rule; (4) in the months leading up to his employment termination, Freem attributed more than 15-minutes of non-PM work to PM work on more than one occasion; or (5) FedEx's PM inspection forms are audited by the California Highway Patrol and FedEx is subject to severe penalties and fines, and/or vehicles being taken out of service, if PM's and their related documentation are not properly completed.
Our record does not show Freem requested a continuance of the hearing on the motion, or otherwise argued he had not completed any discovery that might be relevant to defend against it.
Instead, Freem broadly argued in his opposition to the motion he and his coworkers "all engaged in the same policy and practice implemented by FedEx and its managers to always leave a RO [repair order] open if working on miscellaneous tasks, and to document it as a PM" in order to "eliminate 'fluff time' from their . . . timecards." But to demonstrate pretext, circumstantial evidence "'"must be 'specific' and 'substantial' in order to create a triable issue with respect to whether the employer intended to discriminate" on an improper basis.'" (Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834.) Furthermore, in proffering comparative evidence to show pretext, Freem had the burden of showing the compared employees were similarly situated in all respects to him. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2024) ¶ 7:466, p. 7-131.) Freem fell short of meeting this burden.
Freem did not offer any evidence in support of his opposition (1) showing how leaving a repair order "open" while working on miscellaneous tasks resulted in the above-described discrepancies in Freem's time cards and PM inspection forms; (2) identifying any technician who, like Freem, violated the 15-minute rule in completing time cards and related documentation, much less showing FedEx and/or Sweet were aware of any such violation by Freem or anyone else before Sweet's investigation; (3) showing any other technician otherwise had discrepancies in their time cards, repair orders, and PM inspection forms that were similar in type and extent as those found in Freem's documentation; or (4) that the discrepancies found in Freem's documentation did not warrant employment termination.
In the amended petition, Freem also asserts his employment was terminated "after Defendants conducted a sham investigation and then destroyed the only piece of evidence that could have settled this dispute for both parties, the video tapes of Freem working." But Freem does not dispute the accuracy of FedEx's and Sweet's findings of discrepancies following the investigation into Freem's documentation. Freem's characterization of Sweet's investigation of the discrepancies in Freem's documentation as a "sham" is a mere conclusion lacking any evidentiary support in our record. "'[A]n issue of fact is not raised by . . . "conclusory assertions."'" (Usher v. White, supra, 64 Cal.App.5th at p. 901.)
Furthermore, while Freem argues in the amended petition the destruction of the video recording Sweet reviewed during his investigation "could have settled this dispute," he failed to explain how, much less produce any evidence, such as his own declaration, disputing what Sweet reported he observed on the video recording. In any event, a defendant's alleged spoilation of evidence does not, in and of itself, create a triable issue of material fact. (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681-682 [employer's destruction of job application did not support finding its failure to hire the plaintiff was age discrimination].) A plaintiff opposing a motion for summary judgment must also produce evidence supporting each element of their claims. (Ibid.; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 10.203.4, p. 10-89.)
Freem argues a triable issue of pretext exists simply because in December 2018 (seven months after Freem's employment termination) FedEx replaced him with then 41-year-old Michael Green. That Freem's position was ultimately filled by a younger worker cannot be viewed in a vacuum to create a triable issue of fact as to pretext; Freem does not cite any legal authority stating otherwise. It is undisputed after Freem's May 2018 employment termination, but before Green's hiring in December 2018, FedEx hired 53-year-old David Cam as a vehicle technician in June 2018 over another applicant who was 11 years younger than Cam. In September 2018, FedEx hired 54-year-old Raju Padhiar as a vehicle technician over the application of then 40-year-old Green, who would not be hired by FedEx for another three months to fill Freem's former position. It is also undisputed that after Green's hiring, in October 2019, FedEx hired 54-year-old Bruce Stodghill as a vehicle technician (over six other applicants, including an applicant who was 16 years younger than Stodghill); in November 2020, FedEx hired 62-year-old Miguel Velazquez as a vehicle technician; and in March 2021, FedEx hired 53-year-old Albert Gonzalez (over 15 other applicants, including two applicants who were much younger than Gonzalez).
Freem has not argued or presented evidence showing whether there were any applicants seeking Freem's position who were older than Green.
In addition, Freem does not dispute the following fact set forth in the separate statement: "Several vehicle mechanics over 50 years of age on May 24, 2018, still work[ed] for FedEx" as of the time the motion was filed. It is also undisputed in October 2015, FedEx promoted then 51-year-old Freem to the position of senior vehicle technician.
The majority opinion concludes Freem satisfied his burden of presenting evidence raising a triable issue of pretext by pointing to evidence Sweet called Freem "slow," which the majority concludes "could reasonably imply age." (Maj. opn. ante, p. 17.) Specifically, Freem testified "[Sweet] made a comment for me being slow and not getting stuff done." Viewing the evidence in favor of Freem, I will assume for purposes of analysis Sweet actually used the word "slow" in speaking to Freem, although Freem's proffered testimony was not clear on that point. That evidence, as so construed, however, cannot create a triable issue of pretext.
It is undisputed PM's must be conducted on FedEx vehicles within a certain period of time-there is no question the timely completion of PM's is simply a part of the job of a vehicle technician. It is undisputed Sweet was getting after his entire work group to be more efficient in completing PM's. In November 2017, Sweet e-mailed not just Freem, but also three of his coworkers, informing the group they needed to perform three PM's per person, per day, and further instructing them to pick up the pace and perform more PM's. On December 14, 2017, Sweet e-mailed his entire work group (Sweet stated in a declaration he had about 30 vehicle technicians reporting to him), including Freem, directing each technician to perform PM's "'asap'" to get caught up.
There is no evidence Freem was singled out for being slow; Sweet called out his entire workgroup on this point. There is no evidence slowness in completing PM's has anything to do with age. For example, there is no evidence Sweet criticized older workers for being slow more than younger workers. In short, there is no evidence creating a triable issue of fact that Sweet's "slow" comment to Freem had anything to do with his age. Extrapolating from Sweet's "slow" comment that Freem was being criticized because of his age and not his performance deficiencies requires inferences and presumptions that render this circumstantial evidence too weak to raise a rational inference of intentional discrimination based on age. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361 (Guz) ["[A]n employer is entitled to summary judgment if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory"]; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2024) ¶ 8:774.1, p. 8-112 ["The stronger the employer's showing of innocent reasons for its actions . . . the greater circumstantial evidence of discriminatory motive is required. Evidence too weak to support a rational inference of discriminatory intent cannot support a finding of discrimination or prevent summary judgment for the employer"].)
Of course, Freem's subjective belief he was treated like he was old and slow does not create a triable issue. (See Featherstone, supra, 10 Cal.App.5th at p. 1159 ["The employee's 'subjective beliefs in an employment discrimination case do not create a genuine issue of fact . . . .' [Citation.] The employee's evidence must relate to the motivation of the decision makers and prove, by nonspeculative evidence, 'an actual causal link between prohibited motivation and termination.'"].])
For all of the foregoing reasons, Freem did not come close to carrying his burden of presenting evidence supporting a reasonable inference age discrimination motivated FedEx's decision to terminate his employment. (See Guz, supra, 24 Cal.4th at p. 362.) The trial court therefore did not err in granting summary adjudication on his age discrimination claim. (See Featherstone, supra, 10 Cal.App.5th at p. 1166.)
Like the majority, I am not persuaded Freem showed a triable issue of pretext through evidence he was denied requests for overtime. (See Maj. opn. ante, p. 20.)
II. CLAIM FOR HARASSMENT BASED ON AGE
A.
Governing Legal Standards
Under FEHA, it is unlawful "[f]or an employer . . . or any other person, because of . . . age . . . to harass an employee." (§ 12940, subd. (j)(1).) In order to establish a prima facie case for harassment under FEHA, a plaintiff must show not only that he belongs to a protected group (e.g., age under § 12940, subd. (j)(1)), but must also show the following: the plaintiff was subjected to unwelcome harassment; the harassment complained of was based on the plaintiff's protected status; the harassment unreasonably interfered with the plaintiff's work performance by creating an intimidating, hostile, or offensive work environment; and the defendant is liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
"A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." (§ 12923, subd. (b).) "The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination." (§ 12923, subd. (c).)
B.
Freem Has Failed to Show a Triable Issue of Material Fact He Was Harassed Based on His Age
As pointed out by the trial court, the record is rife with examples of Sweet engaging in harassing conduct. The record certainly supports a finding Sweet had a generally disrespectful management style which led to the termination of his own employment. But in order to prove harassment based on age, as discussed ante, there must be evidence supporting a triable issue of fact of just that-the harassing conduct was based on the plaintiff's age. Freem failed to cite any evidence showing any harassment by Sweet had anything to do with Freem's age.
The majority opinion refers to Sweet making several statements, including the following, none of which were related to Freem's age: (1) "'[D]o not call me I have a life. I'm not like Jerry'"; (2) "'I'm fucking firing Mitch [Freem] and that will be the last time he will ask me to work another Saturday again!'"; (3) if someone were to "'leave a plastic tote in the office,'" then "'someone will get hurt! . . . I have a heavy hand ask my son!'"; (4) "'Don't give me a reason to fire you'"; and (5) "he was going to 'Fire Someone Today!'" (Maj. opn. ante, pp. 4-5.)
The majority opinion concludes: "Freem presented evidence that Sweet called him 'slow,' which a factfinder could reasonably find was an age-related comment. Freem also testified Sweet would tell him he needed to do more PMs and always insinuated Freem was old and slow." (Maj. opn. ante, p. 22.)
Such a comment on Freem's work performance, however, cannot support a claim for harassment under FEHA. "'"[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. . . . [¶] . . . [¶] . . . [C]ommonly necessary personnel management actions . . . do not come within the meaning of harassment. . . . These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. . . . This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA."'" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707, italics added, fn. omitted; see Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1164 ["'"the Legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance, and business or personnel management decisions-which might later be considered discriminatory-as inherently necessary to performance of a supervisor's job"'"].)
As discussed ante, there is no dispute it is part of the vehicle technician position to timely complete PM's and related documentation. Freem does not question it was within Sweet's role as a supervisor of vehicle technicians to ensure that PM's were being performed timely. Therefore, as it was within Freem's role to comment on such matters, evidence Sweet told Freem he was slow is insufficient to create a triable issue of fact that Freem was harassed in violation of FEHA.
Furthermore, even if such evidence could constitute an instance of harassment under FEHA, there is no evidence supporting such harassing conduct was based on Freem's age. As discussed ante, Sweet informed several vehicle technicians, including Freem, they needed to pick up the pace in completing PM's. In other words, they were all too slow, in Sweet's estimation, in completing PM's and needed to work faster. Evidence Sweet told Freem he was slow and needed to perform more PM's, therefore, does not create a triable issue of fact Freem was harassed based on his age in violation of FEHA. (See Reno v. Baird (1998) 18 Cal.4th 640, 645-646 [ordinary personnel decisions cannot give rise to a FEHA harassment claim because "'harassment consists of a type of conduct not necessary for performance of a supervisory job'"].)
I acknowledge and appreciate the Legislature's declaration FEHA "[h]arassment cases are rarely appropriate for disposition on summary judgment." (§ 12923, subd. (e); see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.) Echoing the appellate court in Martin, supra, 97 Cal.App.5th at page 173, "rarely is not the same as never, particularly in situations where there is no evidence of conduct that would constitute actionable harassment." For the reasons I have explained, this is one of those rare cases. The trial court, therefore, did not err by granting summary adjudication of the claim for harassment based on age in violation of FEHA.
III. CLAIM FOR FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT
For the same reasons the trial court properly granted summary adjudication of Freem's discrimination and harassment claims under FEHA discussed ante, the trial court correctly granted summary adjudication on Freem's claim for failure to prevent harassment and discrimination. "'An actionable claim under section 12940, subdivision (k) [for failure to prevent discrimination or harassment] is dependent on a claim of actual discrimination [or harassment].'" (Martin, supra, 97 Cal.App.5th at p. 173; see Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 44 ["There can be no liability for an employer['s] failure to prevent harassment claim unless actionable harassment occurred"]; Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 ["Employers should not be held liable to employees for failure to take necessary steps to prevent [harassment or discrimination], except where the actions took place and were not prevented"].)
Therefore, as neither his claim for discrimination nor his claim for harassment in violation of FEHA was viable, Freem's claim for failure to prevent discrimination and harassment necessarily fails. The trial court therefore correctly granted summary adjudication of that claim as well.
IV. CONCLUSION
For all these reasons, I believe the trial court was correct in granting FedEx and Sweet's motion for summary adjudication as to Freem's FEHA claims. The record before us contains no evidence of pretext and the inferences relied on in the majority opinion are speculation and insufficient to satisfy the statutory test of a triable issue of material fact.