Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC853691, Joan M. Lewis, Judge.
AARON, J.
I.
INTRODUCTION
Plaintiff Ruben Gonzalez appeals from a judgment entered in favor of defendants Luzaich Striping, Inc. and Bruce Freebury (jointly LSI). LSI is a construction company that specializes in striping roads in San Diego County. Gonzalez had been employed by LSI as a laborer for approximately a year when LSI decided to lay off a number of workers. Over a period of approximately two months, Gonzalez and five other workers were let go. Gonzalez was told that his termination was due to a work slowdown that LSI was experiencing as a result of receiving fewer assignments from the City and County of San Diego. In the weeks prior to the layoff, Gonzalez had been injured twice, but both times he returned to work without major interruption.
After learning that a Caucasian coworker who was let go at the same time as Gonzalez had been rehired, Gonzalez became upset and filed a worker's compensation claim. He also filed this lawsuit, in which he alleged causes of action for, among other things, disability and race discrimination under California's Fair Employment & Housing Act (FEHA) and the California Constitution, wrongful termination in violation of public policy, violations of the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200, et seq.), and negligent supervision/retention. LSI moved for summary judgment. The trial court granted the motion.
On appeal, Gonzalez challenges the grant of summary adjudication as to a number of his causes of action. We conclude that the trial court was correct in granting summary adjudication with regard to Gonzalez's claims of disability discrimination. However, the trial court erred in granting summary adjudication as to Gonzalez's claims related to race discrimination, since there remain triable issues of fact with respect to those allegations. In addition, the trial court erred in granting summary adjudication on Gonzalez's cause of action for a violation of Labor Code section 201, which requires that employers pay employees any wages due to them, at the time of termination. We therefore affirm the judgment in part and reverse in part, and remand the case to the trial court for further proceedings.
Gonzalez does not challenge the court's rulings as to all of his causes of action. We consider only those causes of action that are encompassed in Gonzalez's arguments on appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Gonzalez worked for LSI between May 2004 and May 2005 as a general laborer. LSI is wholly owned by Rodney Luzaich. Bruce Freebury worked for LSI as an "estimator/project manager" for nine years, and in that capacity, supervised the field laborers, including Gonzalez. LSI employed up to 15 employees during the time Gonzalez worked there.
For most of the work that Gonzalez performed, he earned $10 per hour. However, on some public projects, workers were required to be paid a "prevailing wage," which could be as much as $50-$60 per hour. Gonzalez noticed some "unfairness" in how the prevailing wage work was assigned to the employees. Specifically, Gonzalez noticed that some Caucasian employees were assigned more prevailing wage work than were Gonzalez and his African-American work partner. Although Gonzalez complained about the situation to coworkers, he did not complain about it to a manager.
During Gonzalez's tenure at LSI, he heard Freebury make a number of inappropriate racial comments. In Gonzalez's presence, Freebury "made comments about the Mexican mentality; about how [they] like to break things and not tell nobody, just hide it." Freebury also "made another [comment] about how Mexicans came into this world. He said that – well, he said that a [b]uffalo had intercourse with an Indian and that is how I [Gonzalez] became [sic]. But he didn't use the work 'intercourse.' He used like a profanity word, the 'F' word." Gonzalez also heard Freebury make a comment about New Orleans, to the effect that it is "a real bad area because there is all kinds of blacks." Gonzalez asked a foreman about Freebury's comments, saying, "'What is up with Bruce saying all of these things? I mean that's unprofessional. He shouldn't be saying stuff like that. Especially against his workers, against his employees like that and one of them happens to be black.'" Gonzalez did not know whether the foreman ever talked to Freebury about his remarks.
In April 2005, Gonzalez suffered two injuries while on the job. In early April, a street sign fell on Gonzalez's forearm, cutting him. Gonzalez initially thought he might have broken a bone because he could not move his hand for a couple of minutes. Freebury suggested that Gonzalez put ice on his wound. Gonzalez stayed at work that day, resting, with ice on his arm. He later helped move "a sign . . . or things that were in the way of us painting the strip line." Gonzalez testified that he wanted to go home early that day, and that he did not ask to continue working that day. He also testified that he asked Freebury and the foreman about going to see a doctor, but "everybody was just busy." After that day, Gonzalez continued to work, but was limited in what he could do. There is no evidence that Freebury or anyone else asked Gonzalez to do work he was unable to do or reprimanded him for not doing other work.
Approximately a week later, Gonzalez was injured when another employee who was attempting to move a pallet using a forklift, bumped the pallet into Gonzalez's leg. Freebury was nearby when Gonzalez was hurt, and said to Gonzalez, "'Try to hang in there. We really need to get this job done.'" However, Freebury told Gonzalez that that if he "was still in pain . . . [he] could go." Gonzalez left early that day, but returned to work the following day and worked a full day. Gonzalez worked for approximately a week after the injury before Freebury informed him that his employment was being terminated. Freebury personally informed Gonzalez that he was being laid off, and told Gonzalez that he was being let go because "work was slow." Freebury told both Gonzalez and one of his coworkers, Blair, that they were being laid off at the same time. Blair, who was Caucasian, had recently started working for LSI. Gonzalez considered him to be "a new guy."
On a document entitled "Termination Checklist" that Freebury filled out concerning Gonzalez's termination, Freebury marked a box indicating that Gonzalez was eligible to be rehired. Freebury did not give Gonzalez his final paycheck at the time he informed Gonzalez he was being dismissed. On the termination checklist document, Freebury wrote in the word "'mailed'" next to a statement on the form that said, "'Paycheck delivered to employee upon termination.'" Gonzalez received his paycheck through the mail approximately three days after he was let go.
Over a one to two month period, LSI laid off five or six employees. Gonzalez eventually learned that LSI had rehired Blair. Gonzalez was upset that Blair was rehired and he was not. Gonzalez believed that he was a "better employee" than Blair because Blair was new and Gonzalez had been working at LSI for almost a year at the time he was laid off. Luzaich and Freebury testified that between the spring of 2005 when Gonzalez and other employees were laid off, and the time depositions were taken in the summer of 2006, LSI had rehired two of the employees who had been laid off, and had also hired two additional workers.
After Gonzalez filed this lawsuit, Luzaich asked an office assistant to prepare a worksheet setting forth Gonzalez's absences during his employment with LSI. The worksheet showed that Gonzalez had been absent 36 days during the year he worked at LSI. Gonzalez said that he "didn't think [he] missed that much" work. Luzaich admitted that striping work (i.e., painting the streets) could not be performed if it was raining.
During his deposition, Freebury acknowledged that there were times when Gonzalez might have been told that he did not have to come in when he called in the morning to ask if he should show up for work. One reason Freebury might have told Gonzalez he did not have to come to work is that some of the work could not be done in the rain. Freebury did not memorialize in any manner the dates on which Gonzalez called and was told not to come in. When asked whether he was certain "that there were occasions that Ruben simply failed to show up without having called in to you or someone else first," Freebury answered, "No." Freebury said that he was "sure" that Gonzalez had called "every time he was supposed to be at work" and "on days that he was wondering whether or not he should be there," "or he was not going to be there, due to whatever reasons." When asked whether he was aware of any instances in which Gonzalez was absent and did not call at all, Freebury said, "No," and added that to his knowledge, that had never happened.
After Gonzalez and the other workers were laid off, Luzaich hired an investigator to look into the claims that Freebury had been making racist comments. Luzaich "wanted to find out if Bruce Freebury did say the joke, and if anybody else heard it, and . . . wanted to know the truth about it." During his deposition, Freebury admitted to making certain objectionable comments. For example, he acknowledged that he had made a comment like "the Mexican mentality is to break something and not say anything." He also admitted to making the statement, "'"God created Mexicans to prove that Indians fucked the buffalo."'" Luzaich eventually "wrote Bruce up for saying this joke." Freebury further acknowledged that he had made a "comment about Louisiana and Black people and Louisiana" as well.
B. Procedural background
Gonzalez filed a complaint in September 2005, alleging causes of action for (1) wrongful termination in violation of public policy based on violations of a number of statutory provisions; (2) violations of California's Labor Code; (3) discrimination in violation of FEHA; (4) failure to prevent harassment; (5) violation of the California Constitution's prohibition against employment discrimination; (6) violation of Business and Professions Code section 17200, et seq.; (7) intentional infliction of emotional distress; (8) negligent supervisions and/or negligent retention; and (9) defamation.
Included in what was identified as the "First Cause of Action," Gonzalez set forth a number of claims for wrongful termination based on different provisions of the Labor Code, including violations of Labor Code sections 98.6, 201, 203, 210, 6310, 6311, 6402, 6404, and 1102.5. Gonzalez could have set forth these claims as separate and independent causes of action, but did not.
Again, as with the first cause of action, Gonzalez set forth multiple claims for violations of the Labor Code, including violations of sections 98.6, 201, 203, 210, 6310, 6311, 6402, 6404, and 1102.5.
LSI filed an answer in October 2005. The parties conducted discovery, and Gonzalez, Freebury, and Luzaich were deposed.
LSI moved for summary judgment or, alternatively, summary adjudication, on June 23, 2006. Gonzalez filed an opposition, and LSI replied. The trial court issued a tentative decision granting LSI's motion for summary judgment in its entirety. The court heard oral argument on the matter on October 20, 2006, and ultimately confirmed its tentative ruling, with one minor correction.
The trial court entered judgment in favor of LSI on November 8, 2006, and awarded LSI costs in the amount of $2,663.55 on December 6, 2006. Gonzalez filed a timely notice of appeal on April 16, 2007.
III.
DISCUSSION
A. Summary judgment standards
"Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. [Citation.] On appeal, the reviewing court makes '"an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]"' [Citations.]" (Hesperia Citizens for Responsible Development v. City of Hesperia (2007) 151 Cal.App.4th 653, 658.)
In independently examining the record on appeal "to determine whether triable issues of material fact exist," we "'consider[] all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained.' [Citations.]" (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1530.) Further, "'we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff's] evidentiary submission while strictly scrutinizing the defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.' [Citation.]" (Ibid.)
"'In the summary judgment context, . . . the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877 (Faust).) "'Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.' [Citation.]" (Ibid.)
B. Gonzalez's causes of action
Gonzalez challenges the grant of summary judgment with regard to a number of the causes of action he alleged in his complaint, but not all of them. Because Gonzalez does not challenge the grant of summary judgment as to his causes of action for failure to prevent harassment (fourth cause of action), intentional infliction of emotional distress (seventh cause of action), and defamation (ninth cause of action), the summary adjudications of these claims stand. We consider only the matters Gonzalez has raised on appeal.
1. Gonzalez's claims of disability and race discrimination under FEHA
a. Legal standards for discrimination claims
"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, supra, 24 Cal.4th at pp. 354-356.) "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." (Id. at p. 354; see also Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317 ["In most cases, the complainant will be unable to produce direct evidence of the employer's intent. Consequently certain rules regarding the allocation of burdens and order of presentation of proof have developed in order to achieve a fair determination of 'the elusive factual question of intentional discrimination.' [Citation.]"].)
"The McDonnell Douglas prima facie case . . . is 'designed to assure that the "plaintiff [has] his day in court despite the unavailability of direct evidence."' [Citation.]" (Green v. State of California (2007) 42 Cal.4th 254, 275.) In the context of disability discrimination, the plaintiff initially has the burden of establishing a prima facie case of discrimination by proving that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254 (Jensen).) In the context of race discrimination claims, "[g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action . . . ., and (4) some other circumstance suggests a discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.) If the plaintiff establishes a prima facie case of discrimination, a rebut table presumption of discrimination arises. (See ibid.)
b. Gonzalez's claims related to disability discrimination under FEHA
Gonzalez contends that "there is no question" that he was disabled and that a jury could have concluded that he "was subject to disparate treatment because of his disability." However, the disparate treatment about which Gonzalez complains on appeal is conduct that is alleged to have occurred after Gonzalez's employment had already been terminated. Gonzalez does not claim on appeal that he was improperly terminated because of his alleged disability. Rather, Gonzalez contends that it is LSI's failure to rehire and/or failure to accommodate him in the rehiring process that represents the actionable disability discrimination. This argument is merit less
Gonzalez asserts that "there is direct evidence that [his] disability is the reason he has not been rehired by LSI to this day." However, in all of the cases we have found where the plaintiff alleged discrimination in the failure to hire or rehire, the plaintiff had applied for the position, or, because of the plaintiff's current position as an employee, he or she possessed the right to preferential consideration in being hired for the position in question. There is no evidence that any similar circumstance existed here. Rather, at the time of the alleged discrimination in this case, Gonzalez was no longer an employee of LSI, and there is uncontroverted evidence that Gonzalez never indicated to LSI that he wished to be rehired. Gonzalez admitted that he never contacted LSI to inform them that he wished to be rehired:
"Q. Did you expect the company to give you a call to see if you were still hurt before [they] hired Blair?
"A. Yeah.
"Q. Did you tell anybody at the company to – to give you a call to see if you were still hurt before they hired anybody?
"A. No.
"Q. Why did you expect the company to put the call in to you?
"A. Well, I expect[ed] them to be checking up to see how I was doing, if I'm willing to work again or not. I mean they – I had got injured from their company. It was them that injured me. I didn't injure myself."
When asked, "Have you ever tried to get reinstated in your job at LSI," Gonzalez responded, "No. Well, I couldn't because of my leg. It was bad at the time." Gonzalez also responded in the negative to the question, "Did Mr. Freebury say any words like 'it was nice to work with you, or keep in touch, or we feel bad about having to let you go or anything of that nature?'" When asked whether he, Gonzalez, had said anything similar to Freebury, Gonzalez responded in the negative. Luzaich testified that he "never received a request from [Gonzalez] that he be considered for rehire."
It is also uncontroverted that Gonzalez did not file a worker's compensation claim until after his employment was terminated. LSI thus could not have known that Gonzalez was claiming a disability until after Gonzalez was no longer an employee. Again, there is simply no evidence that Gonzalez submitted another application or otherwise informed LSI that he wished to return to work after having his employment terminated.
Despite the lack of any action on his part that would have indicated to LSI that he wanted to return to work, Gonzalez presumes that he had the right to be rehired, and even goes so far as to assert that "LSI was obligated to give Gonzalez preferential consideration for rehire . . . ." (Capitalization and underscoring omitted.) The only authority Gonzalez cites in support of this argument involves an individual who was an employee at the time the alleged adverse employment action occurred. (See Jenson, supra, 85 Cal.App.4th at p. 265 ["[T]o the extent Wells Fargo rejected Jensen for positions for which she was qualified because it had applicants who were more qualified or had seniority, it overlooks that when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration" (italics added)].)
As noted above, Gonzalez was no longer an employee of LSI. He does not challenge his termination on the basis of disability discrimination, thus apparently conceding that his termination was not undertaken for reasons related to disability discrimination. Gonzalez has offered no authority to suggest that LSI had an affirmative duty to seek him out for reemployment once he was neither employed by LSI nor an applicant for any job with LSI.
Gonzalez's assertion that the trial court should not have granted summary adjudication as to his disability discrimination claims on the basis of LSI's failure to accommodate his disability suffers from the same problem. In addition to prohibiting discrimination on the basis of disability, FEHA also requires that an employer "make reasonable accommodation for the known physical or mental disability of an applicant or employee" if it can do so without undue hardship to its operation. (Gov. Code, § 12940, subd. (m).) In making the argument that LSI violated FEHA by failing to accommodate his disability, however, Gonzalez again relies on evidence and argument related to LSI's conduct after Gonzalez was no longer an employee of LSI. The FEHA provision regarding reasonable accommodation applies only to "an applicant or employee." The undisputed facts demonstrate that Gonzalez was neither an applicant nor an employee at the time he claims LSI failed to rehire him or to accommodate him. Because Gonzalez never indicated his desire to come back to work, LSI had no duty to accommodate him at any point after his employment relationship with LSI ended. Gonzalez provides no authority for his position that LSI should have accommodated his disability despite the fact that he was neither an employee nor an applicant.
c. Gonzalez's claims for race/national origin discrimination under FEHA
Gonzalez challenges the trial court's grant of summary adjudication as to his claim of discriminatory treatment based on his race/national origin. Section 12940, subdivision (a) of the Government Code provides that it is an unlawful employment practice for an "employer, because of the race . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." We conclude that there remain triable issues of fact with regard to Gonzalez's claim of race discrimination under FEHA.
We do not intend to suggest that a reasonable jury would, in fact, determine that LSI engaged in unlawful race discrimination in this case. We simply conclude that the evidence available for purposes of summary judgment, when viewed in plaintiff's favor, is sufficient to support such a conclusion. It was thus error for the trial court to decide this issue in favor of LSI as a matter of law at this stage of the litigation.
i. Prima facie case
Under the McDonnell Douglas test, Gonzalez bears the initial burden of coming forward and establishing a prima facie case of discrimination by demonstrating "that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action . . ., and (4) some other circumstance suggests a discriminatory motive." (Guz, supra, 24 Cal.4th at p. 355.)
Gonzalez offered evidence showing that he is of Mexican decent, that he was performing his job competently, and that he suffered an adverse employment action in that he was laid off. Gonzalez also offered other evidence that suggests a discriminatory motive. Specifically, Gonzalez provided uncontradicted evidence that Freebury, his direct supervisor, had made derogatory jokes and remarks about those of Mexican decent, including a remark made in Gonzalez's presence to the effect that "one thing about Mexican – Mexicans is that [Mexicans] break something and . . . attempt to hide it and not tell nobody." Gonzalez also noticed that white employees were given more "prevailing wage" work than he and his partner, who was African-American. In addition, there was evidence that LSI rehired a less experienced Caucasian coworker of Gonzalez's who had been terminated at the same time as Gonzalez, shortly after they were let go.
ii. The proffered nondiscriminatory motive
In response to Gonzalez's prima facie showing, LSI offered evidence that it believed was "sufficient to . . . 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]" (Guz, supra, 24 Cal.4th at pp. 355–356.) Citing to that evidence on appeal, LSI asserts that Freebury did not make the decision as to which workers to lay off, but rather, that the decision was made exclusively by Luzaich, and that Luzaich did not consider Gonzalez's race in making the decision.
In a declaration submitted in support of LSI's motion for summary judgment, Luzaich states that LSI experienced a "work slowdown" in the spring of 2005, so he decided to lay off six workers. Luzaich stated that he "chose Mr. Gonzalez as one of the six for layoff because he was a marginal worker during the year of his employment [with LSI]. Further, he displayed erratic attendance." Luzaich also offered a "worksheet that [he] had prepared after Mr. Gonzalez presented his claim in this matter" that Luzaich believed "confirmed [his] understanding upon laying [Gonzalez] off that he had a poor attendance record." Certainly, the decision to fire an employee because the company does not have enough work to go around is a nondiscriminatory reason. Additionally, firing an employee because he is considered to be a "marginal worker" also would appear to be a nondiscriminatory reason.
iii. Evidence of pretext and racial animus
If an employer offers nondiscriminatory reasons for the adverse employment action, "[t]he plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Guz, supra, 24 Cal.4th at p. 356.) A plaintiff may succeed in rebutting the employer's nondiscriminatory reasons "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 256.)
"'Pretext may be demonstrated by showing " . . . that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge. [Citation.]" [Citation.]'" (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023.) "'Pretext may also be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination. [Citation.]'" (Ibid.)
Although downsizing is on its face a nondiscriminatory reason for terminating an employee, "downsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal" of a protected worker. (Guz, supra, 24 Cal.4th at p. 358.) "An employer's freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may 'use the occasion as a convenient opportunity to get rid of its [protected-class] workers.' [Citation.]" (Ibid.) Thus, even if LSI reasonably decided to reduce its work force, LSI was nevertheless prohibited from including Gonzalez among those to be fired on the basis of his ethnicity. On the record presented to the trial court for purposes of summary judgment, we conclude that there remains at least a triable issue of fact as to whether the reasons LSI offered for Gonzalez's termination were pretextual.
Gonzalez presented evidence that Freebury made inappropriate jokes and comments about persons of Mexican heritage. In at least one of those comments, Freebury indicated that he believed that persons of Mexican heritage are afraid to report when they have broken equipment and therefore, that they created "problems" for the company. Freebury also told an offensive and degrading joke about Mexicans, thereby demonstrating potential discriminatory motives. In addition, Gonzalez testified that he noticed that Freebury gave two of Gonzalez's Caucasian coworkers more "prevailing wage" work than he gave Gonzalez. Gonzalez did not recall Freebury giving any other minority individuals more prevailing wage work than Gonzalez. Further, LSI hired four employees in the time between the layoffs and Freebury's deposition in August 2006, two of whom LSI had previously employed. One of the individuals LSI rehired was a Caucasian man with less experience than Gonzalez, who had been laid off at the same time as Gonzalez. Although none of this constitutes direct evidence of racial animus, it provides circumstantial evidence of a possible discriminatory motive on Freebury's part.
Although LSI asserts throughout its briefing that Luzaich, alone, made the decision to terminate Gonzalez, our review of the record demonstrates that there remains a triable issue of fact as to the degree to which Freebury may have participated in the decision. Freebury described what occurred at the time Gonzalez was terminated as follows: "The understanding is that we were going through a business reconfiguration, and we had to cut back on our employees. And at that time, Rodney and I consulted to determine how many and who was going to be eliminated at that time." (Italics added.) In its briefing, LSI fails to acknowledge Freebury's testimony that he was involved in the determination not only of how many employees would be let go, but also which of the employees would be let go. Freebury's testimony also raises questions about the veracity of Luzaich's declaration, in which Luzaich does not acknowledge having consulted with Freebury as to whom to lay off, but instead claims full and sole responsibility for the decision.
It also appears that Freebury was involved in helping Luzaich determine who would be hired, from which one could reasonably infer that Freebury was similarly involved in deciding whom to fire. For example, Freebury stated that he "do[es] the interviews" with applicants and then "meet[s] with Rod Luzaich to go over the interviews, and consult[s] with him whether the applicant is hirable or not hirable." With regard to the four workers who were hired after Gonzalez's termination, Freebury said that his involvement was the same as with other hirings: "Again, the same procedure; interviews, recommendations with Rod Luzaich on hiring them, and consulting with him." For purposes of Gonzalez's claim of race discrimination, this evidence raises a triable issue of fact as to the extent of Freebury's participation in the decision to terminate Gonzalez's employment.
Further, Gonzalez has demonstrated that the additional proffered reasons for his termination may not be based in fact. By way of declaration, Luzaich asserts that Gonzalez was a "marginal worker" and that he "displayed erratic attendance." However, there is no evidence in the record substantiating the assertion that Gonzalez's work was "marginal." Gonzalez was never reprimanded for the quality of his work, nor was he ever told that his work was marginal. LSI has no records that suggest that Gonzalez was a marginal worker, and there is no testimony in the record to support this assertion. Although Gonzalez believed that he may have shown a lack of productivity as a result of his arm injury, he believed that, otherwise, he was a fully productive employee.
Although LSI offered a worksheet that showed that Gonzalez had been absent 36 days during his year of employment with LSI, that document was not created until after Gonzalez was terminated, and after he filed this lawsuit. The accuracy of the accounting of his absences is also in dispute in that Gonzalez does not believe he missed as many days of work as are identified in the document. Further, whether Gonzalez's absences or his productivity differentiated him from his coworkers remains in question; Gonzalez noted that "there were other guys that would show up like 15 minutes late or be missing a lot more . . . days than I have in one week."
Freebury stated that he did not recall ever having a discussion with Gonzalez about "any attendance problems that he might have had," although Luzaich testified that "we gave [Gonzalez] a verbal warning" about his attendance. The portions of Gonzalez's deposition transcript provided in the record do not indicate that Gonzalez was ever told that his attendance was poor. In fact, when Freebury notified Gonzalez that he was being laid off, Freebury did not say anything to Gonzalez about his job performance or about his attendance being poor. On a document entitled "Termination Checklist" that Freebury completed pertaining to Gonzalez, Freebury marked a box next to the statement "Eligible for rehire." Viewing this fact in the light most favorable to Gonzalez, one could infer that LSI would not have considered Gonzalez eligible to be rehired if it believed that his work had been marginal and that his attendance had been poor.
Freebury's deposition testimony also indicates that the attendance worksheet might not provide a full picture of Gonzalez's alleged absenteeism. Freebury said that there were times when Gonzalez called in the morning to ask if he should show up for work and that he might have been told that he did not have to come in. According to Freebury and Luzaich, the striping work the company does cannot be done in the rain. Freebury acknowledged that this was a reason Freebury might have told Gonzalez he did not have to come to work.
It does not appear that Freebury or anyone else noted the times when Gonzalez called and was told not to come in. When asked whether he was certain "that there were occasions that Ruben simply failed to show up without having called in to you or someone else first," Freebury responded, "No." Freebury said that he was "sure" that Gonzalez had called "every time he was supposed to be at work" and "on days that he was wondering whether or not he should be there," "or he was not going to be there, due to whatever reasons." In fact, when asked whether he was aware of any instances in which Gonzalez was absent and did not call, Freebury said, "No," and added that to his knowledge, that had never happened.
All of this evidence leaves open the possibility that LSI may have formulated its proffered reasons for Gonzalez's termination after his termination. "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.' [Citations.]" (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147-148.) "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." (Id. at p. 147.)
We conclude that the entirety of plaintiff's evidence, when viewed in the light most favorable to him, raises a triable issue of fact concerning whether the decision to terminate his employment was motivated by a discriminatory purpose.
2. Gonzalez's related claims for wrongful termination in violation of public policy, and violations of the UCL
To the extent that Gonzalez's claims for violation of the UCL and wrongful termination in violation of public policy (i.e., violations of the California Constitution's prohibition against race discrimination in employment and/or FEHA's anti-discrimination provisions) are based on allegations of unlawful race discrimination, we conclude that summary adjudication of these claims was improper. Because Gonzalez has viable claims for violation of FEHA, it necessarily follows that a triable issue exists with respect to his causes of action for wrongful termination in violation of public policy and violations of the UCL.
For example, the common law provides for a "tort action where an employer's discharge of an employee contravenes the dictates of fundamental public policy." (Rojo v. Kliger (1990) 52 Cal.3d 65, 89 (Rojo).) The public policy against racial discrimination found in article I, section 8 of the California Constitution and in FEHA is sufficient to support a cause of action for wrongful termination in violation of public policy. (See Rojo, supra, 52 Cal.3d at p. 89; see also Faust, supra, 150 Cal.App.4th at p. 886 [policy embodied in FEHA provisions satisfies the "public policy" element required to support cause of action for wrongful termination].)
Article I, section 8 of the California Constitution provides: "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin."
Further, the UCL prohibits any unlawful business practice: "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." (Bus. & Prof. Code, § 17200.) A claim under FEHA may therefore provide the basis for a separate and additional claim under the UCL. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1426 (Sisemore); see also Alch v. Superior Court (2004) 122 Cal.App.4th 339, 401.) Since we have concluded that there remain triable issues of fact regarding Gonzalez's race discrimination claims under FEHA, it follows that there also remain triable issues of fact with regard to Gonzalez's claim under the UCL, to the extent that the claim is related to the alleged FEHA violations. (Cf. Sisemore, supra, 151 Cal.App.4th at p. 1426 [because plaintiff "stated viable claims under the Unruh Civil Rights Act . . ., and under FEHA . . ., it necessarily follows that she has alleged sufficient facts to support a cause of action under the UCL"].)
In sum, because we have concluded that the evidence could support a judgment in Gonzalez's favor on the question whether there was an improper racial animus behind the decision to terminate his employment, the trial court should not have summarily adjudicated any additional causes of action that rely on this evidence in LSI's favor.
3. Gonzalez's claims under FEHA for failure to prevent harassment
To the extent that Gonzalez is asserting that the trial court should not have granted summary adjudication of his claim that LSI breached its duty to prevent harassment in the workplace, we reject this argument. Relying on Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289 (Trujillo) and the California Constitution, Gonzalez summarily asserts that there remain triable issues of fact as to his cause of action for failure to prevent harassment. He cites to what he terms as "persistent racist remarks" made by Freebury, and Freebury's ability to assign job duties, as evidence that LSI "failed to prevent . . . harassment." However, Gonzalez has not challenged that portion of the trial court's ruling granting summary adjudication of his claim that Freebury's remarks and conduct constituted harassment. There can be no recovery on a private right of action for the failure "to take all reasonable steps necessary to prevent . . . harassment from occurring" where there has been a finding "that no such discrimination or harassment actually occurred at the plaintiff[]'s workplace." (Trujillo, supra, 63 Cal.App.4th at pp. 288-289.) Because the trial court made the finding that, as a matter of law, Gonzalez did not suffer harassment, and Gonzalez has not challenged this finding, we must affirm the trial court's grant of summary adjudication of Gonzalez's claim that LSI failed to prevent harassment in the workplace.
4. Gonzalez's cause of action for failure to pay immediately under the Labor Code
Gonzalez asserts that the trial court erred in granting summary adjudication as to his cause of action asserting LSI's violation of Labor Code sections 201 and 203 because the evidence demonstrates that LSI failed to meet the statutory requirements. We agree that it was error to grant summary judgment in LSI's favor on this issue because there remain triable issues of fact with regard to whether LSI violated these provisions of the Labor Code.
Labor Code section 201, subdivision (a) provides in pertinent part, "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." Labor Code section 203 provides in pertinent part, "If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days."
It is thus clear that an employer who terminates an employee must provide that employee, at the time of termination, with any wages then due. There is evidence that LSI mailed Gonzalez's final check to him, and that he received the check three days after he was discharged from his job. LSI suggests that there is no evidence that Gonzalez was fired in person and thus, there is no evidence that LSI could have given Gonzalez his final check any earlier. The trial court agreed with LSI's argument, stating "Plaintiff offers no evidence to suggest that the check could have been tendered to Plaintiff any earlier . . . ." However, Gonzalez indicated during his testimony that he was terminated in person. When asked whether a coworker was told about the layoffs first, Gonzalez replied, "We were both told at the same time. They had – they had us both in the office."
Other portions of Gonzalez's testimony also support the inference that Freebury informed Gonzalez of his termination in person, and that Freebury did not give Gonzalez his check on the day he was terminated. When Gonzalez was asked about what Freebury had said to him when Freebury was letting him go, Gonzalez noted that Freebury did not indicate to Gonzalez that it had been "nice to work with you, or keep in touch, or we feel bad about having to let you go," but that "the employees, when I was leaving, they were saying, you know, hey man, it's been a pleasure working with you. . . ." Gonzalez presumably would not have had contact with the other employees if he had not been discharged in person at his place of employment. One can thus reasonably infer that Gonzalez was terminated in person, and that LSI could therefore have given him his final check at that time.
LSI suggests that it "need[ed] [to] merely mail his paycheck to his last known address to comply with this statute by promptly delivering it, and it did so." LSI cites no authority in support of this assertion, and it would appear that LSI is relying on a different part of the statute—a portion of the statute that does not apply here—in support of this argument. Section 201 of the Labor Code clearly establishes that wages earned and unpaid "are due and payable immediately" upon discharge. However, the statute provides more leeway for employers who "lay[] off a group of employees by reason of the termination of seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables . . . ." (Labor Code, § 201, subd. (a).) Those employers "shall be deemed to have made immediate payment when the wages of said employees are paid within a reasonable time as necessary for computation and payment thereof; provided, however, that the reasonable time shall not exceed 72 hours, and further provided that payment shall be made by mail to any employee who so requests and designates a mailing address therefor." (Ibid.) The statute provides no similar leeway to other employers, such as LSI. LSI's argument in this regard is thus without merit. Pursuant to the terms of the statute, LSI was required to pay Gonzalez any wages due to him at that time, immediately upon his discharge.
At the very least, the state of the evidence presented in support of summary judgment was insufficient to establish that LSI paid Gonzalez wages that were due to him "immediately" upon his discharge and thereby fulfilled the requirements of Labor Code section 201, subdivision (a), as a matter of law. The trial court thus should not have granted summary adjudication as to this claim.
5. Negligent supervision/retention
Gonzalez asserts that Luzaich did "not properly supervise[] [Freebury] to ensure that he was aware of his obligation to provide work assignments fairly, safely, without regard to race or national origin, not harass employees based on race and national origin and to properly accommodate disabled employees consistent with FEHA and LSI's own written employment policies." Gonzalez makes no further argument in this regard, except to assert in a conclusory manner that LSI "is liable for negligently supervising FREEBURY . . . ." We conclude that summary adjudication of this cause of action in favor of LSI was proper.
"'An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit.'" (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213 (Federico).) "'"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . . [¶] . . . [¶] . . . in the employment of improper persons or instrumentalities in work involving risk of harm to others . . . ."'" (Ibid.) "'"An agent . . . . may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity."'" (Ibid.) The employer is not liable "'"merely because the one employed is incompetent, vicious, or careless,"'" but, rather, is liable because "'"under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand."'" (Id. at pp. 1213-1214.) Thus, liability arises because "'"the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment . . . ." [Citation.]' [Citations.]" (Id. at p. 1214, italics omitted.)
Although the question whether a defendant was negligent is generally a question of fact for the jury, in situations "where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment [may be] granted. [Citation.]" (Federico, supra, 59 Cal.App.4th at p. 1214.) In this case, summary adjudication was appropriate. An employer breaches his or her duty in this regard only "when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed." (Ibid.) It is uncontradicted that Luzaich was not aware of Freebury's inappropriate racial comments, and there is no evidence that Luzaich should have been aware of Freebury's conduct in this regard. Further, since we are affirming summary adjudication in favor of LSI on all of Gonzalez's disability discrimination-related claims, it necessarily follows that there can be no successful negligent supervision/retention claim on those grounds, either. We therefore affirm the trial court's grant of summary adjudication as to Gonzalez's cause of action for negligent supervision/retention.
IV.
DISPOSITION
We affirm the judgment in part and reverse in part. Triable issues of fact exist with respect to Gonzalez's claims of race discrimination under FEHA, the common law, the California Constitution, and the UCL; we therefore reverse the trial court's grant of summary adjudication on those causes of action. We also reverse the trial court's grant of summary adjudication in LSI's favor on Gonzalez's cause of action for a violation of Labor Code section 201. We affirm the trial court's grant of summary adjudication as to the other causes of action Gonzalez raises in this appeal.
The case is remanded to the trial court for further proceedings with regard to Gonzalez's causes of action alleging violations of FEHA, the common law, the California Constitution, and the UCL on the basis of race discrimination, as well as Gonzalez's cause of action pursuant to Labor Code sections 201 and 203.
The parties are to bear their own costs on appeal.
WE CONCUR:
O'ROURKE, Acting P. J., IRION, J.