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Hughes v. California State Employees Assn.

California Court of Appeals, Third District, Sacramento
Jul 24, 2008
No. C056840 (Cal. Ct. App. Jul. 24, 2008)

Opinion


MICHAEL A. HUGHES, Plaintiff and Appellant, v. CALIFORNIA STATE EMPLOYEES ASSOCIATION et al., Defendants and Respondents. C056840 California Court of Appeal, Third District, Sacramento July 24, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 05AS00219

BUTZ, J.

Plaintiff Michael A. Hughes, in propria persona, appeals following defendants’ summary judgment in an action for damages for alleged racial discrimination in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900.) As best we can make out, Hughes contends that the trial court erred in granting the motion for summary judgment notwithstanding: (1) procedural shortcomings in the notice and timing of the motion, (2) conflict with an earlier decision overruling a demurrer, and (3) defendants’ misrepresentation of the claims tendered by his complaint. Finding no merit in his contentions of error, we shall affirm the judgment.

Undesignated statutory references are to the Government Code.

FACTUAL AND PROCEDURAL BACKGROUND

Hughes’s first amended complaint makes the following essential allegations.

The action is brought against named defendants California State Employees Association (CSEA) and John A. Alexander, a CSEA labor representative, for harassing and discriminating against him on the basis of race by providing him with “second[-]class membership/representation” in employment discrimination proceedings he brought against the Department of Fish and Game. Hughes is a CSEA member. Defendants “essentially failed to provide him with the same level of adequate representation as other dues paying members throughout the entire matter.”

On August 7, 2001, Alexander was assigned to represent Hughes in pursuing the administrative grievance proceedings against the Department of Fish and Game. Alexander indicated he was unwilling to prosecute Hughes’s case vigorously. When Hughes challenged him about this, Alexander became angry and used the quintessential offensive racial epithet for African-Americans in describing Hughes’s behavior. Thereafter, Alexander, in representing Hughes, incompetently and inadequately dealt with various matters arising in the course of the State Personnel Board proceedings. On May 23, 2002, after Alexander lied to Hughes about failing to take a procedural action, Hughes confronted him. Alexander once again responded with the offensive racial epithet.

In August of 2002 Hughes complained to Frank Guilermino, Alexander’s CSEA supervisor, about Alexander’s misconduct, including the use of the racial epithet. Hughes told Guilermino that Alexander’s misconduct was racial discrimination. In September of 2002 CSEA assigned Hughes’s case to Catherine Kennedy, a CSEA attorney who represents members of the labor organization unit to which Hughes’s Fish and Game Department supervisors and grievance adversaries belong. In November of 2002, one week before the scheduled State Personnel Board hearing, CSEA withdrew from representation of Hughes on the ground of conflict of interest.

While represented by Alexander, Hughes had consulted an attorney in private practice about representing him in the grievance proceedings. CSEA failed to approve his longstanding and repeated requests for indemnification of the expense of employing outside counsel until the point at which it withdrew as his representative.

The actions of Alexander and others on behalf of CSEA jeopardized his administrative grievance case, were racially discriminatory, and caused him to suffer severe emotional distress.

The foregoing allegations are incorporated by reference in four counts styled causes of action. The first count asserts that Alexander’s alleged inadequate representation was discrimination in violation of section 12940, subdivisions (a), (h), (i), and (j). The second count asserts that Alexander’s alleged uses of the offensive racial epithet violated the same provisions. The third count asserts that Alexander’s inadequate representation, CSEA’s failure to replace him in light of it, and the assignment of Hughes’s case to Kennedy was discrimination in violation of the same provisions. The fourth count asserts that the failure to grant his requests for indemnification, withdrawal from representation, failure to replace Alexander, and assignment of his case to Kennedy in retaliation for his opposition to a portion of the memorandum of understanding between CSEA and the Department of Fish and Game, was discrimination, harassment and retaliation in violation of the same provisions. [This ends our account of the allegations of Hughes’s first amended complaint.]

Defendants demurred on the ground that all of the counts of the first amended complaint, at best, proffered unfair labor practice claims, within the exclusive jurisdiction of the Public Employment Relations Board. A principal theory was that the allegation of use of the racial epithets on two occasions is insufficient to show racial harassment, as such acts must be severe enough to create an abusive working environment. In its tentative ruling the trial court sustained the demurrer as to the first, third, and fourth counts without leave to amend and overruled it as to the second count, saying in its ruling that that count “sufficiently alleges facts showing racial harassment by Alexander.” There was no request for oral argument and the tentative ruling was affirmed by minute order.

Defendants argued that a racial harassment claim under FEHA must involve circumstances creating a hostile working environment. A hostile working environment requires more than occasional and isolated incidents of harassment. Isolated incidents, such as the sporadic use of abusive language, are not actionable. (See, e.g., Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-467.)

Defendants moved for clarification of the court’s use of the term “racial harassment” in its ruling, as the second count was entitled “race discrimination.” The court, by minute order, responded: “The Court clarifies its ruling on defendants’ demurrer[] to the first amended complaint to make it clear the demurrer was overruled as to the second cause of action for racial discrimination, which was erroneously stated as being for harassment.”

On November 30, 2006, defendants filed their motion for summary judgment. The thrust of defendants’ motion is that Hughes’s claim is that CSEA and Alexander inadequately represented him on his claim because of racial animus, but he could not show any requisite adverse action resulted and all of the decisions of which he complains were taken for legitimate nondiscriminatory reasons. Defendant Alexander offered the additional claim that there is no cause of action under FEHA against an employee of a labor organization for racial discrimination.

Defendants supported the motion with evidence of the following. Alexander properly prosecuted Hughes’s claims until September 19, 2002, notwithstanding Hughes’s manifold complaints to him and others in CSEA. Alexander withdrew at that time as a result of yet another in a series of confrontations with Hughes who insisted he was being inadequately represented. In many other vigorous complaints to CSEA about Alexander, during the time that Alexander represented him, Hughes did not complain of insulting use of racial epithets. Indeed, in a complaining letter to Alexander on May 15, 2002, Hughes himself employed the epithet, remarking that he was unconcerned if his vigorous advocacy of his views made him seem an “‘uppity [epithet]’” in the eyes of others. Moreover, in his deposition, Hughes testified that when Alexander used the epithets it was in the “second person,” e.g., “they think you’re an uppity [epithet].”

After Alexander withdrew, Hughes’s case was transferred to Catherine Kennedy and then immediately, upon her discovery that she had a conflict, to Nancy Yamada. Yamada terminated CSEA representation of Hughes because he was disrespectful and accused her of lying, irremediably damaging the attorney-client relationship. Thereafter, CSEA granted Hughes’s request for indemnification of costs of private counsel to pursue his claims. Hughes, represented by private counsel, ultimately recovered a settlement against the Department of Fish and Game for $175,000. Hughes’s precursor administrative complaint (§ 12960) with the Department of Fair Employment and Housing about CSEA’s alleged misconduct in this case alleged only a single use of the racial epithet by Alexander.

Hughes responded to the summary judgment motion with a memorandum of points and authorities in opposition, his own declaration, a statement of undisputed facts, and a list describing purported documentary evidence. There is nothing in the record supplied which indicates that any of the purported documentary evidence on the list was actually produced in the summary judgment proceedings. The record on appeal contains only the first page of his declaration, his opposition memorandum, and four of five pages of his “list of evidence” submitted in opposition to the summary judgment motion.

Hughes’s opposition memorandum is rambling and confused, full of extraneous matter and legal malapropisms, and notably lacking assertions about disputed material issues of fact with reference to appropriate evidence produced in his moving papers. Instead, it relies principally upon allegations of fact alleged in his complaint. He responded to the thrust of defendants’ motion with arguments that the ruling on the demurrer satisfied the required element of disparate treatment and determined that the court had subject matter jurisdiction over the surviving count for race discrimination. He asserted that the requirement for an adverse employment action was satisfied by his constructive discharge by the Department of Fish and Game. Sprinkled through the memorandum are assertions that Alexander and numerous other persons not named in the first amended complaint were liable for harassment. However, the harassment is described as providing “second[-]class membership/ representation.” There is no intelligible assertion in his responding papers that defendants’ motion should be denied because they have failed to address and rule out triable issues of fact on a claim of racial harassment in the nature of creation of a hostile work environment by Alexander through use of racial epithets.

The summary judgment motion was set for hearing on February 13, 2007. In its tentative ruling, as to Alexander, the trial court opined that the FEHA does not provide a cause of action for racial discrimination against individuals who are not employers within its meaning. As to CSEA, the trial court opined that: (1) there was no evidence of a requisite “adverse employment action” as Hughes ultimately obtained a monetary settlement of his grievance claim, (2) there was no evidence that Hughes was treated differently that other CSEA members, and (3) there was no evidence that CSEA’s explanation of its withdrawal as Hughes’s representative because of conflict of interest was pretextual. There was no request for oral argument and the tentative ruling was adopted and motion for summary judgment was granted.

Thereafter, Hughes filed a motion for reconsideration. He argued that the summary judgment ruling was mistaken because the remaining count of his complaint pleaded “two separate and distinct wrongful acts,” i.e., both a race discrimination claim and a distinct racial harassment claim, and the ruling did not address the harassment by creation of a hostile working environment claim. The trial court denied the motion for reconsideration.

DISCUSSION

Hughes’s brief on appeal mixes assertions of fact not shown to have been adduced in the summary judgment proceedings and unsupported by his record references, disjointed assertions of law, and basic procedural misperceptions. Hughes’s pro. per. status warrants no extraordinary indulgence as regards these solecisms. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Accordingly, “[w]e discuss those arguments that are sufficiently developed to be cognizable. To the extent [plaintiff] perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis.” (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; see also People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Callegri (1984) 154 Cal.App.3d 856, 865; People v. Dougherty (1982) 138 Cal.App.3d 278, 282; People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on a different ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3; Schulz v. Wulfing (1967) 251 Cal.App.2d 776, 779.) Thus, we turn to Hughes’s specific contentions of error, as best we can identify them.

There is a blizzard of factual assertions in his brief on appeal; however, the record citations are to allegations in his first amended complaint or assertions in trial court memoranda of points and authority. Allegations and assertions in memoranda are not evidence. The record he has provided does not include any showing that he adduced material evidence in the summary judgment proceedings. It is the appellant’s duty to affirmatively show error by an adequate record. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, pp. 562-564.)

I. Procedural Deficiencies in the Summary Judgment Proceedings

A. Timely Notice

Hughes contends that the trial court erred in granting the motion for summary judgment because of various asserted deficiencies in abiding by time requirements for noticing and hearing the motion for summary judgment. He argues that the judgment must be reversed because, by his accounting, (1) the motion was served one day short of the 75-day lead time required, which should have been 77 days because of the means of service, (2) the motion was heard later than 30 days before the date originally set for trial, and (3) amendments to the notice of motion were made without extending the date of the motion to afford the required notice period. The contentions have no merit.

Such defects, if any there were, are not cognizable without a showing that Hughes objected in timely fashion and the trial court erred in its ruling on the objection. (See 9 Witkin, Cal. Procedure, supra, Appeal, §§ 390-391, 394, pp. 440-442, 444-446; 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 7, p. 406.) There is no indication in Hughes’s opposition memoranda or elsewhere in the record that he made any such objection, nor that the trial court erred in ruling thereon.

B. Failure to Articulate a Basis for the Ruling

Hughes contends that the trial court erred because it did not articulate the basis for its ruling as required by section 437c, subdivision (g). That provision of the statute has no application to a grant of a motion for summary judgment.

II. Circumvention of the Demurrer Ruling

Hughes contends that the summary judgment is infirm because it “circumvented” the earlier overruling of the demurrer to the surviving count of his first amended complaint. As best we can make out, Hughes argues that as a result of the demurrer proceedings and the questions he was asked in deposition, defendants were on notice that the claim in his complaint was for damages for racial harassment and they misled the court by framing the issue in the summary judgment as one of racial discrimination. On appeal, we are concerned with error, generally with error in rulings of the trial court. Hughes fails to show error in connection with the claimed misrepresentation of his claim.

In failing to make a claim of error concerning the trial court’s ruling that his claim of racial discrimination presents no triable issue of fact, Hughes concedes the validity of that ruling.

It is not surprising that defendants framed their summary judgment motion on the view that the claim tendered by the remaining count of Hughes’s first amended complaint was one for racial discrimination. Nor is it surprising that the trial court proceeded on that view. The facial ruling on the demurrer (as to the first, third and fourth counts) was that Hughes had failed to plead a tenable claim of racial discrimination because the allegations of use of the epithet, in context, were not sufficient pleading of circumstances creating a hostile working environment. (See fn. 2, ante.)

As to an alternative racial harassment claim, FEHA prohibits that, whether as to an employer, a union, or any person. The anti-harassment provisions of FEHA prohibit on-the-job harassment. We assume, arguendo, that racial harassment in the relationship of representation by a union in grievance proceedings could, in some circumstances, provide an analogy to on-the-job harassment.

The core question is whether the trial court erred in treating Hughes’s first amended complaint, for purposes of summary judgment, as a claim for damages for racial discrimination, i.e., as defendants characterized it. “With respect to a defendant’s motion [for summary judgment], ‘the initial duty to define the issues presented by the complaint and to challenge them factually is on the defendant who seeks a summary judgment.’” (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114.) If defendants fail to address an alternative tenable theory of recovery presented by the complaint, the plaintiff can defeat the motion by making it clear in the opposition papers that there is an alternative tenable theory of the complaint on which he is relying. (See id. at p. 1116.) As Hughes failed to do this, the trial court did not err in accepting the motion as framed by defendants.

Hughes offers a hodgepodge of arguments concerning the meaning and perceived binding effects of the ruling on the demurrer as to the second count. He argues that the demurrer ruling established that he had pleaded a claim of racial harassment, because the court initially used that term to describe the sole remaining count of his complaint. For reasons already given, this argument leads nowhere. The initial ruling on demurrer was corrected in a manner which is reasonably susceptible to having left only a claim for racial discrimination. To raise an alternative discrete theory of racial harassment in the summary judgment proceedings, Hughes was obliged to clearly present this to the trial court, in a timely fashion, as an alternative tenable theory of the complaint. He did not.

On appeal, Hughes does not attack or address the order denying the motion for reconsideration.

Hughes also suggests that the trial court was bound by the harassment terminology in the original ruling on the demurrer, because defendants did not title their motion to correct the wording of the demurrer ruling, a motion for reconsideration or a motion for relief under Code of Civil Procedure section 473. He then acknowledges that the court had the power to correct a clerical error in any event. However, he submits there was no such error because defendants admitted to the racial harassment allegations in the demurrer proceedings and knew from his deposition that he still considered harassment a live claim. Lastly, he submits that, in any event, this clerical correction is consistent with validating a claim for harassment, because racial harassment is a variety of racial discrimination.

The short answer to all of these arguments is that the terminology used in the original ruling on the demurrer has no direct bearing on error in granting the motion for summary judgment. Hughes himself employs the term harassment to encompass a claim of racial discrimination by providing inadequate representation. As explained above, in view of the correction of the terminology of the original ruling and Hughes’s failure to assert an alternative discrete claim of harassment through use of racial epithets creating a hostile work environment, the trial court did not err in failing to rule on that as an issue in the summary judgment proceedings. Thus, the contention that the summary judgment is infirm because it “circumvented” the earlier overruling of the demurrer to the surviving count of his complaint has no merit.

Hughes also perfunctorily contends that the trial court erred in granting the motion for summary judgment because he had viable due process of law or equal protection claims against several CSEA officials who were not named in the complaint. It suffices to say that there is no showing that any such claims were tendered in the trial court.

DISPOSITION

The judgment is affirmed. CSEA and Alexander shall recover their costs of this appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur: BLEASE, Acting P.J., DAVIS, J.

However, as related, employment discrimination law generally requires that the racial harassment be severe enough to amount to a hostile working environment, a term of art which does not extend to isolated incidents, such as the sporadic use of abusive language. (See fn. 2, ante.) The allegations of use of the racial epithet on this record, in the circumstances of the showing of failure to complain timely to union representatives, and Hughes’s own usage, and the indications that Alexander used the epithet in the second person, arguably would fail to present a triable issue of fact of the kind of oppressive circumstances that could be actionable under FEHA. However, we imply no final view on this point. We do not have a complete record and the trial court did not reach this point in the summary judgment proceedings.


Summaries of

Hughes v. California State Employees Assn.

California Court of Appeals, Third District, Sacramento
Jul 24, 2008
No. C056840 (Cal. Ct. App. Jul. 24, 2008)
Case details for

Hughes v. California State Employees Assn.

Case Details

Full title:MICHAEL A. HUGHES, Plaintiff and Appellant, v. CALIFORNIA STATE EMPLOYEES…

Court:California Court of Appeals, Third District, Sacramento

Date published: Jul 24, 2008

Citations

No. C056840 (Cal. Ct. App. Jul. 24, 2008)