Huhs v. NRG-El Segundo Operations Inc.

Full title: JEFFREY HUHS, Plaintiff and Appellant, v. NRG – EL SEGUNDO OPERATIONS…

Court: California Court of Appeals, Second District, Third Division

Date published: Jul 25, 2007

No. B189279 (Cal. Ct. App. Jul. 25, 2007)

Opinion

JEFFREY HUHS, Plaintiff and Appellant, v. NRG – EL SEGUNDO OPERATIONS, INC., et al., Defendants and Respondents. B189279 California Court of Appeal, Second District, Third Division July 25, 2007

NOT TO BE PUBLISHED

Appeal from a judgment and order of the Superior Court of Los Angeles County Super. Ct. No. BC326146, Elizabeth A. Grimes, Judge. Judgment is reversed; order regarding reconsideration and sanctions is reversed; order regarding attorney’s fees is affirmed; matter is remanded with directions.

Appleton, Blady & Magnanimo and Heather Appleton for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Douglas R. Hart and Geoffrey D. DeBoskey for Defendants and Respondents.

CROSKEY, J.

In this appeal, plaintiff Jeffrey Huhs (plaintiff) challenges the summary judgment granted to defendants NRG El Segundo Operations, Inc. (El Segundo), NRG Energy, Inc. (Energy), NRG Western Affiliate Services, Inc. (Western Affiliate Services, collectively NRG), Audun Aaberg (Aaberg), Robert Rea (Rea), and Keith Goodner (Goodner, and collectively with the corporate defendants, defendants).¹ Additionally, plaintiff challenges the trial court’s denial of his request for a continuance on the hearing of the summary judgment motions.

1 In his declaration filed in support of his opposition to defendants’ motions for summary judgment, plaintiff addressed how the various corporate defendants relate to his job. He stated he began his employment with such defendants on June 1, 2001 and he works at El Segundo. The job application he filled out and the offer letter he received are on El Segundo letterhead. His salary review forms and performance evaluations are on Energy letterhead, as are the employee handbook, memoranda, and education assistance tuition checks he has received during his employment. His paychecks and his W-2 forms have the name Western Affiliate Services on them.

Plaintiff also challenges the trial court’s denial of his request for reconsideration, denial of his request to treat the motion for reconsideration as a motion for new trial after the court entered a judgment while the motion for reconsideration was pending, and imposition of sanctions in connection with the denial of his request for reconsideration. Plaintiff further challenges the denial his motion for new trial which was denied by operation of law when the court set a hearing on the motion past the statutory time on which the court had jurisdiction to rule on the motion. Lastly, plaintiff challenges the court’s award of attorney’s fees to defendants Rea and Goodner.

Regarding plaintiff’s challenge to the judgment itself, we find that the papers submitted by the parties in support of, and in opposition to, the various summary judgment motions filed by defendants support the trial court’s decision that there are no triable issues of material fact on the first six of plaintiff’s seven causes of action. However, the trial court’s minute order on the summary judgment motions did not address plaintiff’s seventh causes of action and thus it remains outstanding. Summary judgment, therefore, should not have been ordered. Nevertheless, because the defendants’ respective motions requested summary adjudication of issues as an alternative to summary judgment, the court should have entered an order granting adjudication in favor of the defendants on the first six causes of action. We will remand the matter with directions to the trial court to consider and rule upon the defendants’ motion with respect to the seventh cause of action and, depending on that ruling, to conduct such further proceedings as may be appropriate.

There was no error or abuse of discretion in the denial of plaintiff’s request for a continuance of the hearing on the summary judgment motions. However the denial of his motion for reconsideration and the award of sanctions cannot stand given that the court had no jurisdiction to even consider the motion because of the intervening judgment. As for plaintiff’s challenge to the denial by operation of law of his motion for new trial, that result occurred because he did not monitor the resetting of the hearing on the motion. Lastly, we find no cause to reverse the court’s award of attorney’s fees to defendants Rea and Goodner.

We will remand the case to the trial court for further proceedings on the request for summary adjudication of issues on the seventh cause of action.

PROCEDURAL BACKGROUND OF THE CASE ²

2 We provide an additional discussion of the facts in the Discussion section of this option.

1. Allegations in Plaintiff’s Complaint

In a motion for summary judgment, the parties’ pleadings set the parameters for the scope of the issues. The party bringing the motion essentially contends that the material factual claims that arise from the pleadings do not need to be tried because they are not really in dispute. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Thus, claims not made in a complaint cannot raise an issue in a summary judgment motion.

Plaintiff filed this suit on December 20, 2004. The operative complaint is plaintiff’s first amended complaint (“complaint”). According to the complaint, plaintiff is a white, male employee of one or more of the NRG companies. Defendant Aaberg was the regional plant manager of El Segundo when most of the events in this case occurred, defendant Rea is the operations and maintenance (O&M) manager of El Segundo, and defendant Goodner is the business manager and regional business unit manager of El Segundo. In his complaint, plaintiff alleges that the following occurred during the period 2001 to 2005.

Plaintiff began working at El Segundo in June 2001 as a shift supervisor. In April or May 2002, he complained to Aaberg and to the person who at that time was the O&M manager (Richard Orlowski), about a sexually hostile work environment, stating that his co-employees were engaging in inappropriate conversations in the workplace about female co-workers breasts, inferences to lesbians, and an apparent affair between two co-workers. In June 2002 plaintiff received an overall performance rating from Orlowski of “exceeds standards.”

Also in June 2002, one of his co-workers, Joyce Vialto, complained to him about sexually inappropriate conduct by defendant Aaberg and another person, and plaintiff forwarded that information to Orlowski and to a Marty Crotty, a regional manager. Plaintiff participated in defendants’ investigation of that sexual harassment allegation. After his participation in the investigation, defendant Aaberg developed a negative attitude towards him. In September 2002, plaintiff laterally transferred to the position of instrumentation & electrical (I&E) supervisor. He received an overall performance rating from Orlowski of “exceeds standards” in May 2003.

In October 2003 the O&M manager position at the El Segundo plant became available when Orlowski resigned from that position. Defendants placed defendant Rea in the position on an interim basis without conducting interviews. That same month, Aaberg told plaintiff that Rea was given the interim position because Rea had been with the company longer than plaintiff and had expressed an interest in moving up in the company. However, plaintiff had earlier expressed the same interest.

Aaberg also told plaintiff in October 2003 that he would work with plaintiff in plaintiff’s attempt to receive educational assistance benefits from NRG if plaintiff were to be accepted into an MBA program at Claremont College. Later, plaintiff was given false information about NRG’s education assistance program, including that the program was suspended due to bankruptcy proceedings. Plaintiff never received the application forms for the program that he requested.

When the opening for the permanent O&M Manager position was formally posted in February 2004, the requirements for the position were misrepresented. Defendants changed the qualifications so that Rea was qualified for the position. Plaintiff submitted an application. Neither he nor the other applicants were interviewed. Instead, Aaberg simply announced on April 30 that Rea had accepted the position of O&M Manager. After plaintiff complained that he had not been given the O&M manager position, he was warned by a number of supervisors and other employees to be careful not to give Aaberg a reason to fire him.

Plaintiff filed an EEOC complaint in May 2004 alleging retaliation based on his having complained of a sexually hostile work environment and participated in an investigation of sexual harassment, and alleging discrimination based on age. Plaintiff alleged that not only is Rea less qualified than plaintiff for the O&M manager position but Rea is also younger than plaintiff.

In June 2004, defendant Rea, who was now plaintiff’s supervisor, gave plaintiff an overall performance rating of “meets minimum standards,” which is the equivalent of a 2 out of 5 rating. Plaintiff was informed that his performance was reviewed by a committee constituted of defendants Rea, Aaberg and Goodner. Rea acknowledged to plaintiff that he should have spoken to plaintiff, prior to the evaluation, about how plaintiff’s performance was viewed, and Rea could not give plaintiff any examples of problems with plaintiff’s performance, other than the vague examples mentioned in the written performance evaluation. However, plaintiff has always performed his duties in a diligent, competent and professional manner when working for NRG.

The performance evaluation caused plaintiff to amend his EEOC complaint and add a charge that the evaluation was unfair and was intended to justify having given Rea the O&M manager position. Plaintiff also amended the EEOC complaint by adding a charge that he had been denied the right to review his personnel file and he had received only a 1/2% raise because of the biased performance evaluation.

In October 2004 plaintiff filed a complaint with California’s Department of Fair Employment and Housing (DEFH) in which he alleged he was denied a promotion and benefits in retaliation for his participating in the sexual harassment investigation and filing a charge of discrimination with the EEOC, and also because of his physical disability or perceived disability. He received a right to sue letter from the EEOC in September and a right to sue letter from the DFEH in November.

In early August 2004, there was an ammonia supply line failure at defendants’ El Segundo plant that resulted in a leak of ammonia, which is a hazardous material. Although defendants have a specific procedures in place for handling such a leak so as to minimize the risk of harm to employees and the public, Aaberg and Rea decided to not follow the procedures that day and thus caused such a risk to safety. Plaintiff asserted to defendants that the proper safety procedures had not been followed.

When plaintiff takes a day of vacation or uses one of his “personal time off” days, he is charged for the whole vacation day or the whole personal time off day and they are deducted from his account even though he is required to perform work on those days. As already noted, this lawsuit was filed on December 20, 2004.

In March, Aaberg announced he was resigning from the position of regional plant manager and defendants posted the coming availability of that position. Plaintiff was informed that applications for the position would be pre-screened and only applicants who met the minimum qualifications would be granted an interview. Plaintiff submitted an application. He was given an interview in April. In May he was told that although he interviewed well, he was not one of the final candidates for the position because he did not have experience as a manager. Had he been selected for the position of O&M manager in 2004 he would have had sufficient managerial experience to qualify him for final candidate consideration for the regional plant manager position.

2. Plaintiff’s Seven Causes of Action

Plaintiff’s first and second causes of action are against all of the defendants. His third through seventh causes of action allege claims only against the NRG defendants. The specific claims made by the plaintiff may be summarized as follows:

a. First Cause of Action

Defendants violated Government Code section 12940, subdivision (h),³ when they denied plaintiff the position of O&M manager, denied him wage increases, gave him low ratings on his performance evaluation, and otherwise harassed him in retaliation for his opposing the sexual harassment he observed and opposing the retaliation to which he was subjected when he complained to the EEOC.

3 Government Code section 12940 addresses unlawful employment practices and is part of the California Fair Employment and Housing Act (“FEHA,” Gov. Code, § 12900 et seq.).

b. Second Cause of Action

Defendants engaged in unlawful retaliation against him with respect to the terms and conditions of his employment (such as excluding him from a safety meeting), in violation of Labor Code section 6310 et seq., because he objected to unsafe working conditions during the ammonia leak.

c. Third Cause of Action

The NRG defendants violated Government Code section 12940, subdivision (a) by failing to promote him, and such failure to promote was based on his having reported sexual hostility in the workplace, having participated in the investigation of sexual harassment, and having filed a lawsuit against defendants.

d. Fourth Cause of Action

The NRG defendants regard plaintiff as having a physical disability and because of that perception, they engaged in discrimination against him, including denying him the positions of O&M manager and regional plant manager, either because of the perceived disability or because they believe this perceived disability will prevent him from performing the job duties that those positions entail, and such discrimination is a violation of Government Code section 12940, subdivision (a).

e. Fifth Cause of Action

This count is based on Government Code section 12940, subdivision (k), and plaintiff alleges that the NRG defendants failed in their duty to take reasonable steps necessary to prevent unlawful discrimination, harassment and retaliation from occurring at their workplace and as a result, plaintiff was subjected to such things.

f. Sixth Cause of Action

The NRG defendants wrongfully took adverse employment actions against him, in violation of Government Code sections 12940 and 12941, when they pretextually lowered his performance ratings, denied him promotion to the position of O&M manager, and denied him bonuses and wage increases, and in doing such wrongful acts, defendants were motivated by his complaints of illegal discrimination, retaliation and harassment.

g. Seventh Cause of Action

As a benefit of his employment, plaintiff alleges that he is entitled to paid vacation time off and paid personal time off, and in connection therewith, he has a right to be relieved of his job duties on the days when he is charged with taking a full vacation day or a full personal time off day, but despite such right, the NRG defendants have wrongfully deprived him of his vacation pay and personal time off by charging him for full days when he has actually performed work on such days, and by requiring him to be available by cell phone on such days.

3. The Motions for Summary Judgment Or Alternatively, Summary Adjudication of Issues

On August 26, 2005, the NRG defendants filed a motion for summary judgment or, alternatively, summary adjudication of issues. Additionally, on the same date, defendants Aaberg, Rea and Goodner each filed their own separate summary judgment/adjudication of issues motion. A hearing on these motions was held on November 9, 2005. The court stated it had not “spent enough time with the papers yet” and it directed the parties to present their arguments and the matter would then stand submitted. On November 28, 2005, the court issued its minute order granting the motions.

On December 13, 2005, plaintiff filed a motion for reconsideration, with a reserved hearing date of January 12, 2006, however the trial court signed and filed a judgment on December 15, 2005. The court considered the merits of the motion for reconsideration, determined it was without merits and imposed a monetary sanction, and denied plaintiffs request to treat the motion as a motion for new trial. Plaintiff also filed a motion for new trial and despite an agreement between the parties and the court to have the motion heard prior to the statutory 60 days for ruling on the motion, the trial court rescheduled the hearing date to a time after the 60 days, with the result that the motion was deemed denied by operation of law.

DISCUSSION

1. Standard of Review

We review, on a de novo basis, the order granting defendant’s motion for summary judgment. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiff’s causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)⁴

4 Unless otherwise indicated, all references herein to statutes are to the Code of Civil Procedure.

If a defendant’s presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action, or on a defense thereto, the burden shifts to the plaintiff to present evidence showing that contrary to the defendant’s presentation, a triable issue of material fact actually exists as to those elements or the defense. (§ 437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. Thus, section 437c, subdivision (c), states that summary judgment is properly granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865-866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.⁵

5 Although Code of Civil Procedure section 437c, subdivision (g) requires a trial court to specifically refer to the evidence that indicates there is no triable issue of material fact, and although the trial court in this case did not do that, this is not cause for reversal because the failure was harmless. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)

2. Issues Regarding the Trial Court’s Evidentiary Rulings

In deciding an appeal from a summary judgment, we generally consider all of the evidence presented to the trial court in the moving and opposition papers, including uncontradicted inferences reasonably deducible from the evidence, except for the evidence to which objections were made and sustained. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)

However, if the party who propounded evidence to which objections were made and sustained by the trial court challenges, in its appellate brief, the trial court’s adverse evidentiary rulings, we will examine those rulings using an abuse of discretion standard. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The same is true for evidentiary objections which were overruled. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 739.) If no such challenge is made, we consider the issue of the correctness of the trial court’s evidentiary rulings to have been waived by the party whose evidence was excluded, or the party whose evidentiary objections were overruled. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)

To avoid a finding, by a reviewing court, that a challenge to a trial court’s evidentiary rulings has been waived, the evidentiary rulings must be affirmatively challenged on appeal. That is, the asserted erroneous evidentiary rulings must be identified “as a distinct assignment of error” and be supported by distinct analysis. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) Thus, we look to see if the person challenging an evidentiary ruling has set out the specific evidence, the objection to that evidence made by the other party, the trial court’s ruling on the objection, and an argument detailing why the ruling was incorrect. That must be done for each ruling asserted to be erroneous. Plaintiff has not made such a presentation here.

Here, plaintiff argues that the trial court improperly excluded his evidence because (1) trial courts are required to liberally construe the affidavits of the party opposing summary judgment, (2) the court may only accept a moving party’s evidence as an undisputed fact if such evidence is not contradicted by the evidence of the party opposing the summary judgment motion, and (3) facts alleged in the evidence of the opposing party, together with the reasonable inferences from such facts, must be accepted as true. In making such a presentation, plaintiff is arguing generalities. We cannot agree that this is sufficient to constitute an affirmative challenge to the trial court’s specific evidentiary rulings. It is not a distinct analysis of each individual objection made by defendants that was sustained by the trial court. If plaintiff’s presentation were all that is required in an appeal, then ruling on individual evidentiary objections would be a useless act by the trial court.

Regarding the trial court’s hearsay rulings, it is not sufficient to lump them all together and argue that the hearsay statements are admissible under Evidence Code section 1222 because they are party admissions. Section 1222 is not the blanket admission ticket that plaintiff portrays it to be.

Because plaintiff has not presented this court with sufficient analysis for why the sustained evidentiary objections made by defendants should have been overruled, he has waived his right to assert error in the trial court’s rulings.

3. The Law Governing Causes of Action Asserting Employer Retaliation Against an Employee’s Protected Activity, and Asserting Employer Discrimination Based on a Protected Class

Plaintiff contends defendants violated the FEHA by retaliating against him for his having participated in an investigation of Joyce Vialto’s claim of sexual harassment, and also for his having filed EEOC and FEHA claims. In reviewing such retaliation charges, courts apply a three-step analysis. Has the plaintiff established a prima facie case of retaliation? Has the defendant presented a legitimate, nonretaliatory reason for its challenged acts/adverse employment actions? Has the plaintiff demonstrated that the defendant’s asserted legitimate, nonretaliatory explanation for its acts is actually a pretext for what amounts to retaliation. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)

For a plaintiff to meet his first burden, that is, establish a prima facie case of retaliation, the plaintiff must show that (1) he engaged in a protected activity, (2) thereafter he was subjected to an adverse employment action by his employer, and (3) there is a causal link between the plaintiff’s protected activity and the employer’s action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476.) A plaintiff may establish the casual link/retaliatory motive by inferences derived from circumstantial evidence that the employer knew of the plaintiff employee’s protected activities and that within a relatively short time after the plaintiff engaged in those activities the employer took its allegedly retaliatory action against the employee. (Morgan, supra, at pp. 69-70.) However, once the employer produces substantial evidence of a legitimate, nonretaliatory motive for the adverse employment action taken against the plaintiff (which is a burden of production for the employer, not a burden of persuasion), then the presumption of retaliation created by plaintiff’s prima facie case is dispelled and the burden shifts back to the plaintiff to prove intentional retaliation, that is, to show that the employer’s reason for the adverse employment action is a pretext intended to mask the employer’s illegal motive for the adverse action against the plaintiff. (Id. at p. 68.) The employee can demonstrate the retaliation/pretext directly by persuading the court that the employer was more likely motivated by a desire to retaliate, or indirectly by showing that the explanation given by the employer for its adverse employment action is not worthy of belief. (Ibid.) Here, the parties’ respective burdens of production occurred at the summary judgment stage and thus defendants were required to produce evidence first.

When examining a plaintiff’s claims of unlawful employment discrimination, courts use a three-step analysis that is similar to that used for examining retaliation claims. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 67-70.) The plaintiff must present a prima facie case of discrimination. He does that with evidence that he is member of a protected class, he was qualified for the employment position he sought or was performing competently in the position he held, he suffered an adverse employment action (termination, demotion, denial of an available position, etc.), and some other circumstance suggests a discriminatory motive. From this prima facie case, a rebuttable presumption of discrimination arises. Then, the employer must rebut the presumption with evidence that its employment action was taken for a legitimate, nondiscriminatory reason. As with claims of retaliation, the employer bears only a burden of production, not persuasion. The employer “ ‘need not persuade the court that it was actually motivated by the proffered reasons. [Citation.] It is sufficient if the [employer’s] evidence raises a genuine issue of fact as to whether it discriminated against the [employee].’ [Citation.]” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 663-664.) If such evidence is produced, the rebuttable presumption of discrimination raised by the plaintiff’s prima facie case is dispelled and the plaintiff must present evidence that the employer’s proffered explanation for its employment action is a pretext for discrimination, or any other evidence of discriminatory motive. As with claims of unlawful retaliation, the burden of persuasion remains with the plaintiff. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356.) “ ‘[T]he plaintiff may establish pretext “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.” ’ [Citations.] Circumstantial evidence of ‘ “pretense” 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. [Citations.] With direct evidence of pretext, ‘ “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” [Citation.] The plaintiff is required to produce “very little” direct evidence of the employer’s discriminatory intent to move past summary judgment.’ [Citation.]” (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 68-69.)

Here, the trial court found that plaintiff did not present direct or circumstantial evidence, nor evidence from which it can be reasonably inferred, “that defendant made any decision or took any action with respect to his employment in retaliation for plaintiff engaging in any protected activity or in discrimination against plaintiff on account of his age or disability or perceived disability.”

4. Overview of Plaintiff’s Retaliation Claims

Plaintiff complaint charges that defendants retaliated against him in three ways. First, defendant Aaberg did not give him the interim position of O&M manager after Orlowski left that position in October 2003 and then did not give him the permanent O&M manager position in April 2004. Second, he was given a performance evaluation in June 2004 with a low overall rating (“meets minimum standards”), and was only given a 1/2% raise in pay. Third, defendants did not give him the plant manager job when Aaberg left that position in March 2005. We note that plaintiff alleged in his complaint that in June 2002 and May 2003, he received performance evaluations from Orlowski with an overall ratings of “exceeds standards.”⁶

6 Although plaintiff’s second cause of action alleges he was retaliated against because he opposed unsafe working conditions at the El Segundo plant having to do with an ammonia leak, in his deposition, plaintiff stated he does not believe he was retaliated against for anything he did in connection with the ammonia spill and does not believe he has been retaliated against for any complaints he has made concerning safety. His attorney was present at his deposition and although she liberally posed objections throughout the deposition, she did not pose any objections to the nature of the questions asked of plaintiff regarding retaliation based on safety concerns.

Regarding the motivation for defendants’ alleged retaliation, plaintiff asserts several motivators. One is his involvement in the investigation of Joyce Vialto’s charge of sexual harassment. He also asserts that later, defendants retaliated against him again because he filed an EEOC claim, and he specifically links the low performance rating he was given in 2004 to his having filed the EEOC claim. However, plaintiff stated he believes there is an additional reason why his performance evaluation was downgraded—so that defendants would have a justification for not giving him the O&M manager position. Additionally, plaintiff asserts his having filed the instant lawsuit in December 2004 was a motivation for retaliation and he links it to his having been denied the position of plant manager when Aaberg left that job in March 2005.

5. Evidence Presented by the Parties Respecting the O&M Manager Position Going to Rea Instead of to Plaintiff ⁷

7 The parties presented the trial court with declarations, plaintiff’s deposition transcript, and documentary evidence. Our presentation of evidence in this opinion is an amalgam of that evidence.

Plaintiff began working for defendant NRG in June 2001 as a shift supervisor at the El Segundo plant. At that time, defendant Aaberg had been the plant manager there since 1999. Aaberg was responsible for management of the El Segundo and Long Beach plants and supervision of plant personnel. As plant manager, Aaberg was plaintiff’s second level supervisor. Richard Orlowski was plaintiff’s first level supervisor from the time plaintiff came to work at El Segundo until Orlowski left in October 2003.

Plaintiff stated the following three things happened in June 2002. He did not state in which order the first two occurred. One, he received an overall performance rating of “exceeds standards” from his supervisor Richard Orlowski. Two, a co-worker, Joyce Vialto, complained to him that she was being sexually harassed by defendant Aaberg and another person, and plaintiff forwarded details of Vialto’s complaint to Marty Crotty, the regional manager of a company called West Coast Power, and to Richard Orlowski. Three, at Orlowski’s directive, plaintiff participated in NRG’s investigation of Vialto’s sexual harassment claims, including allegations specifically against Aaberg. Plaintiff’s part in the investigation was to speak with an Eric Bachman (“from corporate Human Resources”) and with David Lloyd, whom plaintiff knew was an attorney employed by NRG. He met with those two men for approximately 30 to 45 minutes in the office of defendant Goodner. Goodner was not present during that meeting.

According to plaintiff’s complaint, a month or so earlier, plaintiff had complained to Aaberg and Orlowski about a sexually hostile work environment, to wit, that his fellow employees were engaging in inappropriate conversations regarding female co-workers’ breasts, inferences to lesbians and an affair between two co-workers. However, plaintiff testified at his deposition that he believes he was subjected to retaliation not because he revealed such inappropriate work environment, but rather because of his involvement in the investigation of Joyce Vialto’s charge of sexual harassment. He stated that “at that point, [he] went from someone who was constantly being told that [he was] on the right track for promotion to the opposite [end] of the spectrum.” (Italics added.) He stated that “on the surface it appeared that [he] was siding with Joyce during that investigation.” Asked why he thought Aaberg believed he sided with Vialto, plaintiff answered that it “explain[s] why he treated me differently after that occurred.”

Plaintiff did not offer direct proof that Aaberg knew about plaintiff’s participation in the investigation, much less that Aaberg knew that plaintiff had anything negative to say about Aaberg, assuming arguendo he did say anything negative about Aaberg. It is important to note that although plaintiff asserted that things went south for him right after he took part in the investigation into Vialto’s charges of sexual harassment, the following year his performance evaluation was very positive. Plaintiff acknowledged at his deposition that as far as he knows, no one openly criticized him for participating in the sexual harassment investigation.⁸

8 Plaintiff gave several examples of how Aaberg’s attitude towards him changed after plaintiff’s involvement with the Vialto investigation. In September 2002 when plaintiff made a lateral transfer from being a shift supervisor to being the Instrumentation and Electrical (I&E) supervisor, Aaberg stopped giving him words of encouragement and instead made comments that belittled plaintiff’s abilities. He used plaintiff’s paper work as examples when discussing problems even though there were paper work problems in all of the departments. He would ask plaintiff to attend meetings to provide input and when plaintiff offered his input Aaberg would cut him off.

In May 2003, 11 months after he cooperated in the Vialto investigation, he received an overall performance rating of “exceeds standards” from supervisor Orlowski, who at that time was still the O&M manager at the El Segundo plant. Plaintiff interviewed for the O&M manager position at the Long Beach plant in August 2003 however he did not move to that position.

In October 2003, Orlowski resigned from his O&M position at El Segundo, but defendants did not conduct interviews to fill that slot. Rather, Aaberg announced on October 15 that defendant Rea had been placed in that position on an interim basis. Then in February 2004, defendants posted the position for a permanent O&M manager. The posting erroneously stated the position requires a college degree or equivalent experience with two years of college education. It should have stated that a four-year college degree or equivalent experience was required. Rea stated in his interrogatory responses that he has a high school diploma and is currently pursuing a bachelor of arts degree in business.

Plaintiff submitted his application for the permanent O&M manager slot along with his resume, which plaintiff states highlights his years of “experience in the operation and maintenance of electric power generation facilities” (he states he has more than 25 years of experience), and “references [his] educational experience, including [his] Bachelor of Science in Business Administration-Computer Information Systems.”

Defendant Aaberg stated in his declaration that he did not bother to interview any of the three people who applied for the permanent O&M manager position (plaintiff, defendant Rea and an external candidate, Robert Poitras) because he knew all three men personally and was familiar with the quality of their work since all three had worked at the El Segundo plant.⁹ Further, he had already recently (August 2003) interviewed plaintiff for the O&M manager position at the Long Beach plant.

9 Plaintiff stated at his deposition that Robert Poitras is an engineer who worked for defendants as an outside contractor. Plaintiff considered Poitras to be his toughest competitor for the position but plaintiff believes he was a better candidate than Poitras and Rea.

Aaberg asserts he selected Rea for the permanent O&M manager position because he believed Rea to be the best qualified applicant. Although plaintiff and Robert Poitras have college degrees,¹⁰ Rea had been performing the job successfully on an interim basis and Aaberg believed that Rea had the leadership, team building and communication style that Aaberg wanted for the position.¹¹ On April 30, 2004 Aaberg announced that Rea had accepted the position.

10 Plaintiff testified to his belief that because he had a college degree, he would do a better job in the position of O&M manager than Rea does. However, he also stated he would not automatically hire someone for the O&M management position on the basis that the candidate has a college degree.

11 Both plaintiff’s and Rea’s May 2003 performance review are part of the record. Although both men received overall ratings of “exceeds standards,” Rea was rated “exceeds expectation” in several more categories than plaintiff was, including “facing issues,” “staff development,” “interpersonal relations,” “communication skills,” “analysis and problem solving,” and “stability.” Plaintiff acknowledged at his deposition that Aaberg told him in December or January that he (Aaberg) did not need a smart guy in the O&M manager’s slot, only someone who can get along. Plaintiff was rated better than Rea in “quantity” of work produced, “planning and organization,” and “organizational relationships.”

It has been plaintiff’s understanding that NRG interviews qualified applicants for open positions before it selects a candidate to fill the position. On May 3, 2004, plaintiff e-mailed the regional plant manager, Gregory Hughes, and asked him how the O&M manager position could be awarded to Rea without NRG conducting interviews. Plaintiff told Hughes he felt unfairly passed over for the job. On that same day plaintiff e-mailed Aaberg to state he was extremely disappointed that the position had been given to Rea without interviews, and plaintiff asked to discuss the matter with Aaberg.

The next day, May 4, Aaberg sent an e-mail to Steven Christianson, the human resources manager, with copies to plaintiff and Goodner. Aaberg told Christianson that he had just offered plaintiff a meeting to discuss plaintiff’s disappointment over not being given an interview for the permanent O&M manager position and in response plaintiff told Aaberg that he did not need to meet with Aaberg because he already knew Aaberg’s point and because he (plaintiff) had other ways to pursue the matter. Aaberg asked Christianson if he (Aaberg) should nevertheless meet with plaintiff “and explain my expectation regarding working with Bob Rea.” A few minutes later, plaintiff e-mailed regional plant manager Gregory Hughes stating that he did not feel comfortable discussing the O&M manager position with Aaberg and for that reason had turned down a meeting with him. Plaintiff indicated he was concerned about his continued employment, and about retribution for having questioned Aaberg’s decision to give the position to Rea. Plaintiff asked that instead he be permitted to discuss his concerns with Hughes or someone from human resources.

By letter dated May 7, plaintiff wrote a letter to human resources manager Steven Christianson asking to speak with “an EEO or HR representative” regarding the fact that Rea and not plaintiff had been chosen to fill the position. Nowhere in this three-page letter is any mention made of the fact that plaintiff had participated in the investigation of Ms. Vialto’s sexual harassment charges. Nor does the letter assert retaliation or physical disability as reasons for why Rea and not plaintiff was promoted. Rather, the letter states plaintiff’s belief that he was passed over because of “personal bias.” The letter states that Rea told a former employee that Aaberg will never promote plaintiff because Aaberg doesn’t like plaintiff because plaintiff argues with Aaberg instead of agreeing with him; the letter also states that when Rea was given the interim position, plaintiff was informed by many people, including supervisors and the people who report to him, that he was not given the interim position because Aaberg hates him and he should be careful and not argue or disagree with Aaberg, and then when Rea was given the permanent position, people warned him not to give Aaberg a chance to fire him. The letter also states that Aaberg told plaintiff that Goodner has a problem with plaintiff because Goodner and Rick Orlowski did not get along and since plaintiff worked for Rick Orlowski, plaintiff was perceived by Goodner as being one of “Orlowski’s guys.”

On May 10 plaintiff telephoned Steven Christianson and discussed with him Ms. Vialto’s sexual harassment complaint and the investigation into it, and the awarding of the O&M manager position to Rea “despite the fact that I was more qualified for the position.” Plaintiff spoke with Christianson again on May 13 about the same issues.

On May 17 plaintiff filed a claim with the EEOC in which he alleged discrimination based on age (plaintiff asserted that Rea was younger and less qualified than him for the O&M manager position), and retaliation based on plaintiff’s having reported a sexually hostile work environment in April or May 2002 and participated in the investigation of Vialto’s charges against Aaberg in June 2002. The next day he met with Steven Christianson and during their meeting he told Christianson that he had filed the EEOC claim. On May 26, plaintiff e-mailed Christianson one more time, again asking for details about the decision to give the position to Rea as well as for information about the NRG education assistance program.

Aaberg stated in his declaration that he did not know about plaintiff’s involvement in Joyce Vialto’s sexual harassment complaint until he learned about it in plaintiff’s EEOC complaint in late May or early June of 2004, and thus, he was not aware of it when he selected Rea to fill the O&M manager position vacated by Orlowski.

Gregory Hughes, the regional plant manager for defendant Western Affiliate Services, stated in his declaration that he approved the selection of Rea in April 2004, and at the time of that approval, he was not aware of plaintiff’s participation in the investigation of Ms. Vialto’s sexual harassment charges and did not become aware of such participation until late May or early June 2004 when he learned of the allegations in plaintiff’s EEOC complaint.

Defendant Rea also stated in his declaration that he did not know of plaintiff’s involvement with Ms. Vialto’s sexual harassment charges until he learned about it in plaintiff’s EEOC complaint in late May or early June 2004. Thus, he stated, he did not know about it when he was selected for the O&M manager position.

Defendant Goodner stated in his declaration that he began working at the El Segundo power plant in 1999. He handles administrative issues, including accounting. He had no role in selecting Rea for the position of interim O&M manager position. The requirement for the permanent position of O&M manager is a four-year college degree or equivalent experience, but the job posting for the position erroneously stated college degree or equivalent experience with two years of college education. He did not make the decision to select Rea for the permanent position but he did speak with Aaberg regarding the logistics of the selection process and the structure of the O&M manager position. Like the other defendants, Goodner stated he did not know of plaintiff’s participation in the investigation of Joyce Vialto’s sexual harassment charges when Rea was selected. Rather, he learned about it in plaintiff’s EEOC complaint in late May or early June 2004. At his deposition, plaintiff acknowledged that he has no basis for believing that Goodner knew, prior to the filing of plaintiff’s EEOC claim, that plaintiff had participated in the Vialto investigation. In his declaration filed in support of his opposition to the summary judgment motions, plaintiff opined that it is “inconceivable to [him] that Defendant Goodner would not have been aware in June 2002 that corporate Human Resources and corporate counsel were conducting an investigation into Ms. Vialto’s sexual harassment complaints at the El Segundo Plant.” We observe that knowing there was an investigation and knowing that plaintiff was part of the investigation are two different things.

6. Analysis of the Retaliation Claim Regarding the O&M Manager Position

Defendants presented a straight forward non-retaliatory reason for selecting Rea over plaintiff for the position of O&M manager—Aaberg believed Rea was better for the position. Rea had far more experience with the company (20 years more than plaintiff), and he had been performing the duties of an O&M manager on an interim basis. Moreover, he was better suited to work with Aaberg. Although plaintiff describes that characteristic negatively by saying that Rea is a “yes man,” the fact remains that Aaberg valued his being able to get along with Rea. Plaintiff stated at his deposition that Aaberg told him early on that what he wanted in the person who would be the new O&M manager was someone who can get along. Given the personality differences between plaintiff and Aaberg, Aaberg’s choice of Rea over plaintiff demonstrates a nonretaliatory personnel decision.

Indeed, when plaintiff had an opportunity in his May 7, 2004 letter to Christianson to charge retaliation in connection with the O&M manager position being given to Rea rather than himself, plaintiff did not make that charge. Rather, he attributed his not receiving the position to personality issues he had with Aaberg. At his deposition, plaintiff acknowledged there were strong personality differences between himself and Aaberg and that the differences played a role in his not being awarded the O&M manager position. Plaintiff testified that his not being willing to always agree with Aaberg “played a large part” in why he did not have Aaberg’s support. Further, Aaberg stated that Rea had leadership, team building and the communication style that he wanted in an O&M manager. Although both Rea and plaintiff received good performance reviews in 2003, Rea was rated better in categories corresponding to those three attributes than plaintiff was. (See fn. 9, ante.) And those performance reviews were made by Richard Orlowski, not by Aaberg. Further, given that Rea, plaintiff and the other candidate were known to Aaberg, it was not unreasonable for Aaberg to dispense with interviews, no matter what company policy usually required. And, as defendants point out, even though the education requirements stated in the posting of the open position were incorrect, defendants did not need to change the education requirements of the O&M manager position in order to avoid hiring plaintiff since the third candidate had the education that plaintiff has but Rea did not have—a four-year college degree.

Plaintiff’s claim that he was not made the O&M manager because he was being retaliated against for his having participated in the investigation of Joyce Vialto’s sexual harassment charges is just that—a speculative claim with no support. Aaberg, Rea and Goodner all stated that when Rea was chosen for the O&M manager position they did not know that plaintiff was involved in an investigation concerning Vialto. Moreover, plaintiff has no proof that any of those men know what plaintiff said during the investigation, nor proof that any of them were negatively affected by the investigation. Nor is there any evidence that anyone else who was interviewed during the investigation suffered retaliation.

Plaintiff has not presented the evidence to create a triable issue of fact that defendants’ stated legitimate, nonretaliatory reason for giving the position to Rea rather than to plaintiff is just a pretext intended to cover up defendants’ illegal motive for denying plaintiff the job. Plaintiff has not presented evidence to support a finding that defendants’ reason for promoting Rea was more likely retaliation against plaintiff than it was Rea’s being more qualified for the position. Nor has plaintiff presented evidence to support a finding that defendants’ proffered reason for promoting Rea is not credible.

Further, plaintiff has not presented his own prima facie case for retaliation in connection with his failing to be promoted to the O&M manager position. While plaintiff demonstrated that he engaged in protected activity (cooperating with the investigation into Joyce Vialto’s charges), and that later he was subjected to an adverse employment action (not being promoted to the O&M manager position), the evidence will not support a finding of a causal link between the two. The adverse employment action occurred essentially two years after plaintiff was interviewed during the investigation. Moreover, a year after his interview in the investigation, plaintiff was given a very good overall performance rating (“exceeds standards”), and a few months after that he was given an interview for the O&M manager position in Long Beach. Further, plaintiff acknowledge that after the Vialto investigation, although there were times when Aaberg criticized him and snubbed him, there were also times when Aaberg would compliment him on his work performance, including many compliments on a training program plaintiff developed. Aaberg also took care to advise plaintiff that if plaintiff transferred to the Long Beach plant and that plant closed, there was no guarantee that plaintiff could come back to the El Segundo plant, and Aaberg told him that he was valued as an I&E supervisor.

Because of these clearly positive employment actions by defendants, including Aaberg, in order to find a prima facie case of retaliation in plaintiff’s being denied the El Segundo O&M manager position, we would have to find that defendants were biding their time and passing up opportunities to retaliate against plaintiff in order to seize on an opportunity to retaliate that had more distance between such retaliation and plaintiff’s cooperation with the Vialto investigation. That is pure speculation.

7. Evidence and Analysis Regarding Plaintiff’s Claim that His 2004 Performance Evaluation Was Made in Retaliation for His EEOC Claim

a. The Evidence

In May 2004, plaintiff signed an EEOC claim in which he asserted he was denied the permanent O&M manager position (1) because of his age, and (2) in retaliation for his having participated in protected activities (he mentioned both reporting the sexually hostile work environment and participating in the Vialto investigation). Regarding the issue of age, he listed his age as 49 and stated that Rea was in his “early 40s.”

The EEOC’s case log indicates that plaintiff’s EEOC claim was drafted and signed on May 17 and served, by mail, on NRG on May 18, 2004. Plaintiff states he received defendants’ 2004 performance evaluation of his work on June 14, 2004. He asserts defendants gave him a low performance evaluation and a 1/2% pay raise in retaliation for filing the EEOC claim. The performance evaluation is for the period May 1, 2003 to April 30, 2004.

Plaintiff testified at his deposition that he did not tell anyone he was going to file a charge with the EEOC. He stated he met with Steve Christenson on May 18 to discuss the letter that he sent to Christianson and during that meeting he told Christenson that an EEOC charge had been filed. He admitted that he has no basis for knowing when defendants Aaberg, Goodner and Rea learned that he filed the EEOC claim. Thus, he has no basis for knowing whether they knew of the EEOC charge before they determined their 2004 performance review rating and salary decision for him.

Speaking specifically in reference to Rea, who was plaintiff’s supervisor when the 2004 performance review was prepared, plaintiff was asked why he believes that Rea knew about the EEOC claim before Rea filled out plaintiff’s 2004 performance evaluation. Plaintiff answered that he assumes that Christianson would have “shared [information about the EEOC claim] with people at the station,” but plaintiff added that he has no evidence that Rea was told about it. He stated that no one at NRG ever made any comments, jokes or criticisms to him that led him to believe he was retaliated against for filing the EEOC charge.

The evidence shows that Rea prepared plaintiff’s 2004 performance evaluation with help from Aaberg and Goodner because he had been plaintiff’s supervisor for only part of the evaluation period and he knew that Aaberg had counseled plaintiff on performance deficiencies during that period.

Aaberg, Rea, Goodner all deny that the EEOC claim had anything to do with their preparation of plaintiff’s 2004 performance evaluation and pay raise. They all stated in their declarations that when plaintiff’s overall performance review rating and annual raise were determined, and when the first draft of plaintiff’s performance evaluation was completed, they were not even aware that the EEOC claim had been filed (and not aware that plaintiff had participated in the investigation of Joyce Vialto’s sexual harassment charges).

Gregory Hughes, the regional plant manager, said the same thing, and added that the overall assessment rating and pay increase for plaintiff’s 2004 performance review were determined on or before April 23, 2004, three weeks before plaintiff filed his EEOC claim. With his declaration Hughes included a performance rating/pay increase spread sheet for plaintiff and other employees, together with an e-mail cover letter from himself to a Laurie Thorman (with a “cc” to Steven Christianson), indicating that the spreadsheet had been “reviewed, adjusted, and approved” by Hughes. The e-mail is dated April 23, 2004. Additionally, we note that the letter that plaintiff sent to Steve Christianson was not written by plaintiff until early May, after his assessment rating and pay increase were determined. Thus, defendants presented evidence that plaintiff’s letter and his EEOC claim had no effect on their evaluation of plaintiff’s performance rating and determination of his annual raise.

As for the written performance evaluation itself, the record supports the assertion made by Aaberg, Rea, Goodner and Hughes that when the first draft of the written performance evaluation was finished they were not aware that the EEOC claim had been filed. The record contains (as plaintiff’s exhibit No. 45) an e-mail from Goodner to Rea, dated May 18, 2004 (the day that the EEOC was served by mail on defendant NRG), which states: “The attached is the jeff eval we talked about please review and make your changes the heading and the future goals need to be addressed.” Under that is “jeff huhs.doc.” Exhibit No. 45 includes a copy of a performance review for plaintiff. An e-mail from Goodner to Aaberg, Hughes, Christianson, Schoolman, and Rea, dated May 27, 2004 is included as plaintiff’s exhibit No. 46. It states: “Here is the second draft of the evaluation we talked about this morning” and then mentions “jeff huhs.doc.” Exhibit No. 46 includes a revised copy of the performance review for plaintiff. A June 2, 2004 e-mail from Hughes to Schoolman, Christianson, Aaberg, Rea and Goodner is plaintiff’s exhibit No. 47. It states: “Gents, Here is my take on the Huhs performance review. I tried to be more direct in the comments, corrected some language structure, and checked the spelling.” Hughes added: “Please review and changed [sic] where I may have mis-spoke, not knowing all the details.” Exhibit No. 47 includes another revised version of the performance review for plaintiff. The later two drafts include some fleshing out of comments and evaluations that the first draft addressed and they do not vary widely from the May 18 draft. The final version of the evaluation is plaintiff’s exhibit No. 4. It was signed by plaintiff on June 14. In the final version, two of the 17 individual ratings (ratings of specific job duties and competency factors) are different from the initial draft and in both, the rating changed from “consistently meets” to “meets minimum standards.” However essentially, it cannot reasonably be said that the first draft and the final version vary to the extent that an inference can be made that there was retaliation at work in the making of the second, third or final version.

Plaintiff asserted the evaluation is not reflective of his performance, and he believes that there was a conspiracy to write a bad evaluation of his work as a means of justifying giving the position of O&M manager to Rea rather than to him. We have already determined that defendants presented a plausible, nonretaliatory reason for awarding the position to Rea—he was better suited to it than plaintiff. Thus, there was no need for a conspiracy to prepare a false performance review for plaintiff.

To support their downgrading of plaintiff’s performance evaluation from earlier years, defendants presented the following evidence. In November 2003 and January 2004 Aaberg came to plaintiff’s work area and discussed with plaintiff the need for plaintiff to improve the housekeeping of the area where plaintiff works. Plaintiff agreed with Aaberg that the area needed cleaning. Aaberg also discussed with plaintiff that plaintiff should have been seeing to calibration of revenue meters at the Long Beach plant, and that plaintiff’s subordinates were not reporting to work on time. Thus, he needed reminders on fulfilling his job duties. Moreover, there were times when plaintiff and Aaberg disagreed on work related issues and if plaintiff felt strongly about something he would not back down but instead would keep repeating his position and both of them would raise their voices when they argued. This would occur in front of other people. Additionally, plaintiff discussed with his subordinates the fact that he was denied a promotion and he mentioned that he believed it was retaliation for his having advised an employee what to do about a situation and that he felt things changed after the investigation into Joyce Vialto’s charges. He told the subordinates he could go to an outside agency to make a complaint. With his peer group he also discussed company policies and practices and Rea’s having been given the position that plaintiff applied for. Regional plant manager Gregory Hughes stated that plaintiff was relatively well compensated for employees in his position and performance level and his 1/2% pay raise in 2004 was based on his 2004 performance and the fact that he was relatively well compensated for his position level.

Plaintiff had a different view of these matters. He asserted he did not have a habit of arguing with Aaberg. He only argued with Aaberg when he (plaintiff) felt strongly that he was right about some issue, and Aaberg had a practice of ignoring the point that plaintiff was making and taking the opposite position and it appeared that Aaberg did so simply because he wanted to argue with plaintiff. Regarding the state of plaintiff’s work area, plaintiff states that in January 2004 Aaberg walked through plaintiff’s work area and mentioned that the area needed housekeeping, plaintiff corrected the deficiencies immediately, and since then the area has been fairly tidy and has passed inspections by internal and external safety and environmental agents.¹² Regarding the fact that plaintiff had not calibrated the meters in Long Beach, plaintiff stated that he had always thought that calibration of meters at NRG’s Long Beach plant was someone else’s duty and so when Aaberg talked to him about the calibration, plaintiff took care of it as soon as he could have a certified outside vendor calibrate the meters. Plaintiff stated he does not remember Aaberg ever mentioning to him that his (plaintiff’s) subordinates do not report to work on time.¹³ Regarding defendants’ position that plaintiff is relatively well compensated in his position and such compensation was taken into account when plaintiff was awarded a 1/2% raise in 2004, plaintiff stated he is neither close to the top nor to the bottom of his salary range. Plaintiff denied that he had disparaged NRG or discussed work complaints with his subordinates but he acknowledged that doing so would be inappropriate. He stated he simply told his subordinates that he was not given the O&M manager position and he did not think it was fair.

12 In contrast, the evaluation states that things discussed with plaintiff in November regarding having a safe work area were still not “addressed to the satisfaction of Management and/or good housekeeping practices” at the time the 2004 evaluation was prepared.

13 The evaluation states the timeliness of his subordinates being ready for work was discussed with plaintiff in November 2003 and January 2004 and “some improvement has been observed.”

Plaintiff stated that on May 24 he e-mailed Rea and requested an opportunity to review all of his own personnel files, with the intent of reviewing both the local and the officially maintained files. The next day, Rea forwarded a copy of plaintiff’s e-mail to Goodner. Goodner forwarded a copy of plaintiff’s e-mail to Steve Christianson and a Todd Schoolman, with copies to plaintiff, Aaberg, Rea and Hughes, stating plaintiff’s personnel file was at NRG corporate headquarters.

Plaintiff filed an amended EEOC claim on June 16, 2004 in which he stated that since his initial EEOC claim was filed, he had been denied the right to review his personnel file, he had been given an unfair performance evaluation and the purpose of such unfair evaluation was to support defendants’ attempt to justify promoting Rea instead of plaintiff, and he had only been given a 1/2% raise in pay.

In his amended EEOC claim, plaintiff did not state that the low performance evaluation he was given was a retaliation for his having filed his initial EEOC claim. However, as noted above, in this lawsuit plaintiff does make that contention, and he again asserts his performance evaluation was downgraded so that defendants would have a justification for not giving him the O&M manager position.

b. Analysis of the Evidence

From this evidence it is clear that defendants presented a legitimate, nonretaliatory reason for the low rating, low pay and low performance evaluation given to plaintiff, and plaintiff has not presented evidence that constitutes a prima facie case of retaliation associated with those matters because he has not presented evidence of a causal link between his filing the EEOC claim and the performance rating, review and pay increase he was given in 2004.

To begin with Aaberg, Rea, Goodner all stated in their declarations that when plaintiff’s overall performance review rating and annual raise were determined, and when the first draft of plaintiff’s performance evaluation was completed, they were not even aware that the EEOC claim had been filed. The documentary evidence in the record backs that up. Thus, defendants presented evidence that the EEOC claim had no effect on their evaluation of plaintiff’s performance, overall performance rating, and determination of his annual raise. Further, plaintiff admitted that he has no basis for knowing when Aaberg, Goodner and Rea learned that he filed the EEOC claim.

Moreover, although plaintiff disputed the thrust of the evidence presented by defendants regarding his competency at work (clean working area, calibration of meters in Long Beach, ensuring that his subordinates were at work on time, habitually arguing with Aaberg), those were not the only areas of plaintiff’s job that both the various drafts and the final edition of plaintiff’s performance review indicated needed improvement. Among the others were plaintiff’s noncompliance with environmental regulations, plaintiff’s subordinates not following through repairs to critical equipment, plaintiff’s subordinates not having quality service levels, failure of plaintiff to look for the cause of equipment breakdowns rather than just fixing the equipment, and plaintiff lacking office etiquette.

Aaberg, Goodner and Rea all believed that plaintiff’s overall evaluation was adversely affected by his attitude. An inference can reasonably be made that when Rea was given the interim O&M manager position in mid-October 2003 plaintiff’s attitude worsened.

To all this we note that even though he complained to Aaberg and Orlowski in April or May of 2002 about a sexually hostile working environment caused by his co-employee’s conversations, and he cooperated in June 2002 in the Vialto investigation, in both June 2002 and May 2003 he nevertheless received an overall performance rating of “exceeds standards.” This raises an inference that defendants did not use evaluations as a form of retaliation.

8. Denial of the Plant Manager Position

When Aaberg decided to resign from his position of plant manager, defendants posted the availability of the position in March 2005 and plaintiff submitted an application for the job. He was informed that only applicants who met the minimum qualifications for the job would be interviewed. He was interviewed in April.

Gregory Hughes, the regional plant manager, stated in his declaration that defendant NRG received applications for the position from a substantial number of highly qualified people, including many people who had prior experience as a plant manager. Plaintiff did not have such experience, he was not one of the top four candidates, and thus he was not a finalist. According to an e-mail from plaintiff to Gregory Hughes dated June 14, 2005, Hughes had, at an earlier date, discussed the regional plant manager position with plaintiff and had told plaintiff that although plaintiff’s interview for that position did not have any problems, the people who were chosen as the final four candidates had managerial experience.

The position was filled in May 2005. Aaberg stated in his declaration that he did not have a role in selecting his replacement. Rea and Goodner both stated in their respective declarations that their role in the selection process was limited to speaking with the top four candidates about their own job duties.

At his deposition, plaintiff was asked whether he believes that any aspect of the selection process for the position was discriminatory or retaliatory. He stated that when he applied for the position he believed he was qualified for it. He was aware that “a few other people” applied for the position but he only knows one of them and he believes he is more qualified than that person. He stated that he was told he wasn’t selected because he does not have managerial experience and the company would not promote him two levels. In his opinion, however, he was only given a “complementary interview” and he really did not have a chance at the position because by the time it was filled he had filed the instant lawsuit and thus his not being made the new plant manager was retaliation for his having filed this suit. However, he admitted that he was speculating when he asserted that the lawsuit was the cause for his not receiving the plant manager position.

In his opening brief on appeal, plaintiff no longer asserts that he was retaliated against when he did not receive the plant manager job. Rather, he contends that had he been selected to fill the O&M manager job rather than Rea, he would have had enough experience as a manager “to qualify him to remain in consideration for the position of” plant manager. Because we have already determined that plaintiff’s cause of action for retaliation in connection with the O&M manager job cannot survive defendants’ summary judgment motions, this claim of improper denial of the plant manager position must necessarily fail.

9. Plaintiff’s Various Claims of Discrimination

a. Involvement with Vialto Investigation

On the topic of discrimination, plaintiff testified at his deposition that he was discriminated against because of his involvement with Joyce Vialto’s investigation and the advice he gave to her. We have already discussed his claim of retaliation based on his involvement in the Vialto investigation and found it wanting. As a basis for a charge of discrimination, it fares no better and we will not address it further.

b. Age

Plaintiff also testified regarding the issue of age discrimination as it concerns his age and the age of defendant Rea, who was given the O&M manager position. Plaintiff is over 40. Plaintiff stated that he checked the box on the EEOC form for age discrimination because the EEOC worker who helped him fill out the form suggested that because of plaintiff’s age and because plaintiff believed at that time that defendant Rea was younger than plaintiff, the age “box” could be checked because that way the EEOC could investigate whether there was age discrimination. Plaintiff has not presented evidence of how old Rea actually is. When we couple those facts with the fact that when plaintiff was asked if he now believes he was the victim of age discrimination, plaintiff testified he did not know, and we add the evidence that defendants believed that Rea was better qualified to have the O&M manager position, it is clear that the claim of age discrimination must fail.

c. Disability/Plaintiff’s Weight

Plaintiff’s fourth cause of action alleges that in May, June and July of 2004 he had medical problems that necessitated several doctor appointments. The complaint further alleges, on information and belief, that defendants perceive him as having a physical disability, and because of their perception, they discriminated against him by denying him the O&M manager and plant manager positions because they perceive that such perceived disability will prevent him from performing all of the duties required of those positions. The complaint does not allege what disability it is that plaintiff thinks defendants perceive plaintiff as having (cancer, arthritis, heart problems, etc.). The complaint alleges that defendants’ conduct caused him to gain a significant amount of weight.

We note that in his letter to Steve Christianson plaintiff did not mention physical disability (perceived or otherwise) as a reason for why plaintiff was not promoted to the O&M manage position. Further, plaintiff admitted that he did not claim disability discrimination in either his original or amended EEOC claim because when he filed those claims he did not believe that he was being discriminated against based on a disability. Concerning the fact that later he filed a DFEH claim in which he did assert disability discrimination, plaintiff testified that the only thing that changed between the filing of the EEOC claims and the DFEH claim is that he spoke with his attorney and now he believes he has been discriminated against because he believes that defendants perceive he has a disability. In his October 2004 DFEH complaint, he alleged he was denied a promotion and benefits available to other employees based on a physical disability or perceived physical disability. Aaberg, Goodner, Rea and regional plant manager Gregory Hughes, however, all stated in their declarations that they have never thought of plaintiff as being disabled, nor have they ever thought that plaintiff’s being overweight made him incapable of performing a job.

At plaintiff’s deposition he was asked about discrimination based on his being overweight. He acknowledged that his weight has not prevented him from doing his job. He stated he did not know if his weight would be a ground for discrimination but he said that it appeared to him that people who were promoted were not overweight and that was his only basis for believing his weight played a part in who received promotions. In his appeal, he concedes that weight is not a disability protected by the FEHA.

As already discussed, defendants presented legitimate, non-discriminatory grounds for not promoting plaintiff to the positions of O&M manager and plant manager. Plaintiff’s evidence here amounts to pure speculation about promotions being based on perceived disability, and does not rise to a prima facie case of discrimination.

10. Other Claims by Plaintiff That Fail

Plaintiff’s fifth cause of action alleges defendants failed to prevent the discrimination and retaliation visited on him. Because we have determined that plaintiff has not met his summary judgment/adjudication burden respecting employment claims of retaliation and discrimination, the fifth cause of action necessarily fails.

Plaintiff’s first through sixth causes of action claim a right to punitive damages. Given our analysis of those causes of action, plaintiff will not prevail on any of them and thus analysis of his punitive damages claim is unnecessary.

11. The Seventh Cause of Action

Plaintiff’s seventh and final cause of action alleges that as a benefit of his employment, he is entitled to paid vacation time off and paid personal time off, and in connection therewith, he has a right to be relieved of his job duties on the days when he takes a full vacation day or a full personal time off day, but despite such right, the NRG defendants have wrongfully deprived him of his vacation pay and personal time off by charging him for full days when he has actually performed work on such days, and by requiring him to be available by cell phone on such days.

In support of his opposition to the summary judgment motions, plaintiff stated that throughout his employment at NRG, plaintiff has been required to perform some work on days that he requested a full day of vacation or personal time off, and despite the fact that he has worked on such days, defendant always charge him with a full vacation or a full personal time off day by deducting such days from his vacation and personal time off accounts.

Aaberg, Rea, Goodner, and regional plant manager Gregory Hughes all stated in their declarations that until plaintiff filed this suit, they were not aware that plaintiff made a complaint about being required to work on his paid time off days, or that plaintiff requested a credit of paid time off days because he was required or expected to work on such days. Until he brought this lawsuit, plaintiff had not complained about having to work on his paid time off days and had not requested a credit for working or being expected to work on paid time off days. Regional manager of human resources, Tom Claussen, stated that NRG does not have a policy that requires employees to work when they are taking paid time off and absent unusual or emergency circumstances NRG does not expect them to work on paid time off days. However, supervisory employees are expected to arrange appropriate coverage when they take paid time off. He also was not aware, until this suit was filed, that plaintiff had been expected to work on his paid time off days or that plaintiff requested that he be credited because he was expected to work on such days.¹⁴

14 It is not clear whether, by using the phrase “paid time off days,” defendants, Hughes and Claussen mean both vacation days and personal time off days.

This cause of action was not addressed in the trial court’s minute order granting the various motions for summary judgment. The minute order only addresses plaintiff’s claims of retaliation and discrimination. While it is true that the attorney order submitted by defendants and signed by the trial court does include a short analysis of the seventh cause of action (finding there is no triable issue of material fact as to that cause of action because plaintiff was not expected or required to work on the days he was taking as vacation or paid time off), the attorney order is inconsistent with the minute order and nothing else reflects that the seventh cause of action was actually considered by the trial court prior to signing and filing the summary judgment. Therefore, the summary judgment cannot stand. We will send this case back for further proceedings on this cause of action.

12. Plaintiff’s Section 437c, Subdivision (h) Request for a Continuance or Denial of the Summary Judgment Motions

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).) Subdivision (h) makes it mandatory for a trial court to grant a continuance of a summary judgment/adjudication of issues hearing if there is a good faith showing by affidavit that a continuance is necessary in order to obtain the facts essential to oppose the motion. (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280; accord Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715, where the court stated that to come within the mandatory provisions of subdivision (h), the party opposing a summary judgment motion must show (1) that the facts sought to obtained through a continuance are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain such facts. In connection therewith, the party seeking subdivision (h) relief must detail specific facts to show the existence of controverting evidence. (Lerma, at p. 715.)

On October 26, 2005, the same day that plaintiff submitted his papers in opposition to the motions for summary judgment, plaintiff also filed a section 437c, subdivision (h) request. Although subdivision (h) addresses those cases where “facts essential to justify opposition may exist but cannot, for reasons stated, then be presented,” (§ 437c, subd. (h), italics added), plaintiff’s subdivision (h) presentation states that the evidence presented in plaintiff’s opposition papers is sufficient to defeat defendants’ motions for summary judgment, and further states that plaintiff “contends that additional evidence exits, responsive to his discovery requests, which will further support his Opposition.” (Italics added.). This presentation takes plaintiff’s subdivision (h) request out of the mandatory grant category. Moreover, although the subdivision (h) request references a declaration filed by plaintiff’s attorney, the declaration does not indicate that the additional discovery responses from defendants that plaintiff was seeking are essential to oppose the summary judgment motions.

Because plaintiff’s presentation did not support mandatory subdivision (h) relief by the trial court, the court was required to exercise its discretion in ruling on plaintiff’s subdivision (h) request. (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 716.) The question for the trial court was whether plaintiff “ha[d] nevertheless established good cause” for a continuance. Based upon the showing made by plaintiff, we cannot find that the court abused its discretion when it did not grant the continuance.

Plaintiff’s showing was an explanation, by plaintiff’s attorney, of plaintiff’s discovery efforts beginning on April 29, 2005. The declaration sets out numerous continuances granted by plaintiff to requests made by defendants for more time to respond to plaintiff’s discovery and plaintiff’s meet and confer letters, with such continuances culminating in a meet and confer conference on October 7, 2005, in which, according to plaintiff’s attorney, approximately one-half of the discovery issues connected to discovery propounded by plaintiff were resolved. Additionally, we note that although plaintiff’s deposition commenced on March 29, 2005, and continued on August 5 and 8, 2005, plaintiff did not contact defendants’ attorney until September 28, 2005, to inquire as to dates on which Rea, Goodner and Aaberg would be available to have their depositions taken. Plaintiff did not secure a firm date for Rea and Goodner’s depositions until October 7, 2005, with the deposition date being October 20, 2005, six days before plaintiff filed his papers opposing the motions for summary judgment. Plaintiff did not have the transcripts from Rea and Goodner’s depositions when his opposition papers were filed, but there is no indication that his attorney requested expedited transcription. As for Aaberg’s deposition, defendants’ attorney indicated on October 5, 2005, that Aaberg could not be deposed at that time because he was out of the state.

All that plaintiff established was that discovery was outstanding due to his not being aggressive in obtaining it for a lawsuit that had been filed nearly a year before the hearing on the summary judgment motions.¹⁵ Moreover, the court was still left with the fact that plaintiff believed his opposition papers contained sufficient evidence on which the court could deny the summary judgment motions.

15 Although plaintiff’s appellate presentation characterizes defendants’ discovery responses as “antics,” “stall[ing] and delay[ing],” and “providing incomplete written discovery responses with meritless objections and providing hollow promises to [plaintiff’s] counsel, until it was too late,” plaintiff’s trial court presentation for his request for a continuance did not so disparage defendants’ attorney.

13. Plaintiff’s Motion for Reconsideration

a. Background of the Motion

On December 13, 2005, plaintiff served and filed a motion for reconsideration with a hearing date set for January 12, 2006. However, despite the fact that the reconsideration motion was pending, the trial court signed and filed a summary judgment in favor of the defendants on December 15, 2005, thereby losing its jurisdiction to rule on the motion. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)

According to a declaration of defendants’ attorney, Geoffrey DeBoskey, and documents included as exhibits to his declaration, on December 21, 2005, DeBoskey sent a letter to plaintiff’s attorney, Heather Appleton, along with a notice of entry of judgment. Citing case authority, he mentioned that because of the judgment, the trial court had lost jurisdiction to hear the reconsideration motion. He asked that plaintiff take the motion off calendar.

Appleton responded by saying that although she believed that DeBoskey might be correct about loss of jurisdiction, she needed to research the matter. She added that (1) she did not think she needed to withdraw the motion, (2) she did not think defendants needed to file opposition to the motion because the court would not hear it, and (3) her intent was to move for a new trial on the same grounds asserted in the motion for reconsideration. She stated that if DeBoskey believed she needed to “file something” concerning the reconsideration motion he should contact her.

On December 27, 2005, DeBoskey spoke with the court clerk who informed him that the reconsideration motion would remain on calendar unless Appleton telephonically took it off calendar. DeBoskey relayed that information to Appleton and she replied that she did not think it would be in plaintiff’s best interest for her to affirmatively withdraw the motion but if DeBoskey wished to present her with authority showing that she was required to withdraw the motion then she would be “willing to listen.”

DeBoskey then sent an e-mail to Appleton in which he stated that if plaintiff would not take the motion off calendar, defendants would be forced to file opposition to the motion the following day “out of an abundance of caution” and if opposition papers were filed, defendants would seek sanctions. DeBoskey also stated that if plaintiff were to take the motion off calendar, he would not use that fact in an argument against plaintiff and was not sure what effect taking the motion off calendar could have. He asked Appleton to advise him before noon if she took the motion off calendar.

On December 30, 2004, defendants filed a 15-page opposition to the reconsideration motion in which they asserted there was no jurisdiction to hear the motion and even if there were, plaintiff had not presented new or different facts and plaintiff’s facts do not provide a basis on which the court could reverse its order granting the summary judgment motions. Defendants asserted a right to sanctions because plaintiff did not take the motion off calendar and did not meet the standard for reconsideration motions. DeBoskey stated in his declaration that he spent 11 hours researching and drafting defendants’ opposition papers and anticipated spending another two hours preparing for and attending the hearing on the motion for reconsideration. Based on his hourly rate of $330, he sought sanctions in the amount of $4,290.

On December 30, 2004, plaintiff filed a notice of intent to move for a new trial. The first three grounds for the motion are the same as those raised in plaintiff’s motion for reconsideration: (1) assertedly new facts that establish as a matter of law that there are triable issues of material fact, with the asserted new facts being taken from the deposition transcripts of Rea and Goodner that were not ready when plaintiff filed his opposition to the summary judgment motions; (2) the need for clarification of the trial court’s minute order to address the requirements of subdivision (g) of section 437c (see fn. 3, ante); and (3) the need for clarification of the trial court’s minute order to address the requirements of subdivision (h) of section 437c. The latter two grounds were denominated as irregularities in the court proceedings. The motion for new trial added an additional ground: the judgment should not have been signed while the motion for reconsideration was pending.

On January 9, 2005, plaintiff filed his reply to defendants’ opposition to the reconsideration motion. Plaintiff acknowledge that the court no longer had jurisdiction to hear a reconsideration motion but observed that many courts have held that a trial court has discretion to disregard the label that a litigant has put on a motion and treat the motion as if it were a different motion, including treating a motion for reconsideration as a motion for new trial when the entry of a judgment has cut off the court’s jurisdiction to hear the reconsideration motion. Plaintiff cited several cases which support that point. Plaintiff argued that because his motion for reconsideration “is based on grounds which may also support a Motion for New Trial (irregularities in the proceedings and newly discovered evidence),” the court could treat the reconsideration motion as a new trial motion and therefore, (1) it was reasonable for plaintiff to expect that the court would treat it as a new trial motion after the court had entered judgment and cut off its jurisdiction to decided it as a new trial motion, (2) plaintiff was not required to withdraw his reconsideration motion after judgment was entered, and (3) imposition of sanctions against plaintiff for his not having withdraw his reconsideration motion would be inappropriate.

b. Hearing on the Reconsideration Motion

At the January 12, 2006 hearing on the motion for reconsideration, despite the citation in plaintiff’s reply papers to authorities for his contention that the motion could be treated as a new trial motion, the trial court expressed doubt as to its authority to do so and asserted that plaintiff had not “correctly cited the law.” When the court asked defendants’ attorney whether the court was mistaken, Mr. DeBoskey informed the court that it does have discretion to treat the reconsideration motion as a motion for new trial based on the court’s general authority to construe a motion as something other than how it is labeled. The trial court declined to do that with plaintiff’s motion.

At that point plaintiff’s attorney, Ms. Appleton, stated that awarding sanctions would be incorrect because the transcripts for Rea’s and Goodner’s depositions (on which the assertedly new facts for the reconsideration motion were based) were not available for inclusion in plaintiff’s opposition to the summary judgment motions. Appleton added that “there’s authority that suggest[s] that if you don’t have the transcript at the time, counsel’s declaration can summarize the [deposition] testimony for the court.” She observed that in the declaration she filed in support of plaintiff’s opposition to the motions for summary judgment she did summarize Rea’s and Goodner’s deposition testimony but, she noted, defendants’ objections to that summary of their testimony were sustained. She added that “now we have submitted the transcripts, which constitute new and different facts which were not submitted in support of the opposition [to the summary judgment motions].”

In response, defendants’ attorney, Mr. DeBoskey, asserted that the trial court’s minute order on the summary judgment motions stated “that even if the objections [had been] overruled, . . . defendants’ motions for summary judgment should still be granted.” Based on that representation of what the summary judgment minute order said, DeBoskey argued that “on that basis, [he] did not believe that [the deposition transcripts themselves] were new or different facts that merited a motion for reconsideration.” The trial court agreed with DeBoskey’s argument. It denied the motion for reconsideration and awarded sanctions against Ms. Appleton, under subdivision (d) of section 1008, in the amount of $4,290.¹⁶

16 Mr. DeBoskey was in error when he stated that the court’s summary judgment minute order states that even if defendants’ objections to plaintiff’s attorney’s summarizing of Rea’s and Goodner’s deposition testimony were overruled, defendants’ summary judgment motions should still be granted. The summary judgment minute order did not have reference to the objections to Ms. Appleton’s summary of the deposition testimony. It had reference to the court’s sustaining of “defendants’ hearsay objections to the portions of [plaintiff’s] declaration which attribute statements to defendants Aaberg and Rea because the statements do not fall within any exception to the hearsay rule.”

In the attorney order for the motion for reconsideration, the trial court stated: (1) plaintiff should not have maintained his motion after the judgment was entered; (2) plaintiff failed to “establish that reconsideration is necessitated by ‘new or different facts, circumstances, or law’ ”; and (3) plaintiff “failed to present a satisfactory explanation for not providing the purportedly “ ‘new or different facts, circumstances or law’ in his oppositions to Defendants’ Motions for Summary Judgment. Garcia v. Hejmadi, 58 Cal.App.4th 674, 690 (1997).”¹⁷

17 Rulings on motions for reconsideration are examined under an abuse of discretion standard. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Such motions must be “based upon new or different facts, circumstances, or law.” (§ 1008.) In Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690, the court stated that the Legislature’s 1992 amendment of section 1008 did not “dispense with the court-declared need to show a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.”

c. Analysis of Plaintiff’s Claim of Error in the Denial of His Motion for Reconsideration

The parties agree that reviewing courts apply an abuse of discretion standard when they examine the decision of a trial court to not treat a reconsideration motion as a new trial motion. In the instant case even if we were to find that there was an abuse of discretion in denying plaintiff’s request to have his reconsideration motion heard as a new trial motion, we cannot say that plaintiff suffered harm from such denial given that plaintiff also had a new trial motion pending that he admits was based on the same grounds as the reconsideration motion.¹⁸

18 Given the time constraints for filing a notice of intent to move for new trial, we do not find that it is unreasonable for a plaintiff to have both a motion for reconsideration and a motion for new trial pending at the same time if the latter motion was filed because a judgment cut off jurisdiction over the former motion, and if both motions address the same alleged new or different facts, circumstances or law.

On the other hand though, given that the reconsideration motion was not going to be treated as a new trial motion, the hearing on the reconsideration motion should have come to a halt since the court no longer had jurisdiction over the reconsideration motion. Therefore, the court’s pronouncements, in open court, in its minute order, and in the attorney order, on the substantive merits of the reconsideration motion are of no moment. They have no validity because the court was without jurisdiction to make them. Further, because the trial court did have discretion to considered the motion for reconsideration as a motion for new trial, the trial court also erred when it stated in the attorney order that the reconsideration motion was “improperly maintained” after the judgment was entered. Additionally, since the court had no jurisdiction to rule on the reconsideration motion, it had no jurisdiction to rule on defendants’ request for sanctions. The request for sanctions was based on defendants’ assertions that the reconsideration motion (1) should have been taken off calendar and (2) was substantively without merit, and we have just determined that those assertions are themselves without merit. Subdivision (d) of section 1008 states that sanctions are available when there is a violation of section 1008. The court lacked jurisdiction to find a violation of section 1008.

14. Plaintiff’s Motion for New Trial

Under section 660, the power of a court to rule on a new trial motion expires “60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier.” Section 660 further provides that failure to rule within that period is a denial of the new trial motion by operation of law. Here, defendants served notice of entry of judgment on plaintiff on December 21, 2005. Thus, February 19 would have been the last day on which the trial court could rule on the motion were it not for the fact that February 19, 2006, was a Sunday and the very next day was a holiday (Washington’s birthday) observed by the State of California. Thus, the last day to rule on the motion was February 21, 2006. (§ 12a; Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 75, fn. 3.)

When plaintiff filed his notice of intent to move for new trial on December 30, 2005, he had already reserved a hearing date of February 3, 2006. On January 11, 2006, the clerk of the court mailed plaintiff notice that the hearing was rescheduled to February 7, 2006. Plaintiff served notice of the rescheduling.

Defendants filed their opposition to the new trial motion on January 19, 2006 and plaintiff’s reply papers were filed on January 31, 2006. Because of a family matter for Mr. DeBoskey, Ms. Appleton agreed to reschedule hearing on the new trial motion and the attorneys signed a joint stipulation to that effect. All three pages of the joint stipulation state that the new hearing date would be February 17, 2006. Thus, the parties agreed to continue the hearing to two days before the last day on which the court could rule on the motion.

The joint stipulation was filed with the court on February 3, 2006. On that same day, the court, sua sponte, changed the date of the hearing from February 17 to March 2, 2006, thereby setting the motion for hearing on a date past the last day on which the court could rule on the motion. On February 9, 2006, DeBoskey served written notice on Appleton that the trial court had continued the hearing from February 7 to March 2, 2006. On February 28, 2006, Appleton requested that the motion for new trial be taken off calendar as it had already been denied by operation of law.

Although plaintiff, on appeal, contends the trial court abused its discretion because it denied the motion for new trial, the facts of the case are clear—the court did not deny the motion. It was denied by operation of law. Having been served with notice that the court set a hearing date that was contrary to the parties’ stipulation to continue the hearing to a date within the 60 days in which the court had jurisdiction to rule on the motion, plaintiff should have gone into court ex parte and asked the court to correct its error in setting the hearing on the motion on March 2, 2006, and then sought relief from this court pursuant to a petition for a writ of mandate if no correction was made by the trial court.

15. The Award of Attorney’s Fees to Rea and Goodner

On February 17, 2006, defendants Rea and Goodner filed a motion requesting an award of attorney’s fees and costs in the amount of $24,753.13, plus fees associated with the motion for attorney’s fees. The request for fees and costs was made under Government Code section 12965, subdivision (b), which provides: “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.”

Fees awarded under section 12965 are reviewed for abuse of discretion. (Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 765-766.) It is not simply that a plaintiff has not prevailed on his claim that will justify attorney’s fees under section 12965. Rather, fees should be awarded to a defendant only if the plaintiff’s suit is frivolous, vexatious, unreasonable, or meritless, with the term “meritless” meaning groundless or without foundation. Further, the trial court must make findings to that effect. The purpose of such requirements is to “ ‘avoid discouraging litigants from bringing meritorious but not airtight claims to court’ and to limit awards of attorney’s fees to extreme cases. (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 831.)

Here, the motion for fees was based on defendants’ contention that plaintiff’s claim of retaliation in not being promoted to O&M manager was “based on nothing more than rampant speculation” as to all of the defendants, and that as to Rea and Goodner specifically, plaintiff’s deposition testimony conclusively establishes there was “absolutely no basis to subject [them] to rigors of litigation” and plaintiff’s claims against them are lacking in foundation, unreasonable and frivolous.

At the March 23, 2006, hearing on the motion, the trial court found that plaintiff’s claims against Rea and Goodner were meritless, unreasonable, frivolous, vexatious, without foundation, and brought in subjective bad faith for the purpose of threatening them. The court said that plaintiff “admitted in deposition that his claims against them rested on his own speculation.”

The court further found that although the amount of fees claimed by defendants to be attributable to the defense of Goodner and Rea was reasonable, it was the corporate defendants that paid for Goodner and Rea’s attorney’s fees and thus awarding those defendants the amount requested by defendants would not work to level the playing field in favor of Rea and Goodner. Instead, the court awarded Rea and Goodner “a nominal fee of $1,000.”

We need not repeat all the evidence in the record that supports the trial court’s findings. Plaintiff’s claims regarding retaliation in connection with the O&M manager promotion and plaintiff’s claims regarding safety issues are sufficient to demonstrate the validity of the attorney’s fees award. Goodner is the business manager at El Segundo. He stated in his declaration that he handles administrative issues, including accounting. Plaintiff presented no evidence that Goodner had a vote in the selection of Rea for the position of O&M manager, much less that Goodner had a vote and used it against plaintiff in retaliation for plaintiff’s having participated in the Vialto investigation. Indeed, plaintiff testified at his deposition that he has no basis for believing that Goodner knew, prior to when plaintiff filed his EEOC claim, that plaintiff had participated in that investigation. And as for Rea, he was the person being promoted, not the person doing the promoting. There is no evidence that he did anything that resembles retaliation in connection with his promotion. Additionally, although plaintiff’s second cause of action alleges he was retaliated against because he opposed unsafe working conditions at the El Segundo plant having to do with an ammonia leak, at his deposition he stated he does not believe he was retaliated against for anything he did in connection with the ammonia spill or for any complaints he has made concerning safety.

As for plaintiff’s argument that there is no evidence that Goodner and Rea are actually responsible for paying the attorney’s fees expended in defending them, plaintiff has not presented authority to support his assertion that responsibility for payment is a requirement in a fee award.

DISPOSITION

The summary judgment is reversed. The trial court is directed to vacate its order granting the motion for summary judgment and to enter a new order granting defendants’ motion for summary adjudication as to causes of action one through six. Upon remand, the trial court is directed to address and rule upon the merits of defendants’ summary adjudication motion as plaintiffs’ seventh cause of action. Following such ruling, the trial court is directed to conduct such further proceedings as may be appropriate. The order denying plaintiff’s motion for reconsideration and awarding sanctions to defendants is reversed and the court is directed to enter a new and different order stating (1) the plaintiff’s request to treat the motion for reconsideration as a motion for new trial is denied, (2) the court has no jurisdiction to determine the merits of the motion for reconsideration because of the intervening entry of judgment, and (3) the court has no jurisdiction to award sanctions against plaintiff or his attorney because there is no determination that the motion for reconsideration violated Code of Civil Procedure section 1008 . The order awarding defendants Robert Rea and Keith Goodner attorney’s fees of $1,000 is affirmed. Costs on appeal to defendants.

We Concur: KLEIN, P. J., KITCHING, J.

Aaberg also stopped occasionally having breakfast with plaintiff and stopped talking to plaintiff about promotions. However, plaintiff acknowledged that about a month after plaintiff was made I&E supervisor, plaintiff’s workplace changed from being close to Aaberg’s office to being 300 to 400 yards away from Aaberg’s office and “outside a completely different building and part of the plant,” and after that plaintiff did not expect that he would have the previous opportunities for casual social interactions with Aaberg.

Soon after plaintiff became the I&E supervisor Aaberg threatened to smash plaintiff’s cell phone when plaintiff answered it during a meeting. Plaintiff did not understand Aaberg’s reaction because many people answered their cell phones during meetings. However, later Rick Orlowski explained to plaintiff that Aaberg felt that cell phones should be turned off during meetings. There is evidence that although Aaberg has always required that employees be available by the company cell phone at all times, ultimately Aaberg imposed a policy that cell phones be turned off during meetings.

Another change plaintiff noticed was that the nature of how he and Aaberg disagree over matters changed. Prior to the incident with Joyce Vialto, the disagreements between plaintiff and Aaberg would not become heated; rather the two would just agree to disagree. But after the Vialto investigation, plaintiff had the impression that rather than focusing on the topic of the disagreements that Aaberg would have with him, the focus of the arguments was who would win them, and several times Aaberg would end the argument by saying that he is the plant manager and his way is the way something would be done.

However, plaintiff acknowledged that after the Vialto investigation there were times when Aaberg would compliment him on his work performance. Many of those times were connected to the training program that plaintiff developed. Another was when plaintiff brought Aaberg materials from a class that Aaberg was not able to attend. Also, Aaberg took care to advise him that if he (plaintiff) accepted a position at the Long Beach facility and that plant closed down, there was no guarantee that he could come back to the El Segundo plant. Also, Aaberg appreciated that plaintiff brought to his attention, in the spring of 2002, the inappropriate workplace conversations plaintiff’s fellow employees were having.

Once when Aaberg invited him to a meeting and then spent the meeting ostracizing plaintiff and not listening to his opinions, he asked Aaberg after the meeting if it was time for him (plaintiff) to find another job. Aaberg told him it was not time for plaintiff to move on because plaintiff was valued as an I&E supervisor. This occurred after Rea was installed as the interim O&M manager in October 2003. Plaintiff stated that Aaberg may have liked him at that specific point in time but generally Aaberg tolerated him.

Plaintiff acknowledged at his deposition that his not being willing to “just agree with” Aaberg on work issues and “just do what [Aaberg] wanted [him] to do” “played a large part” in why he did not have Aaberg’s support. In connection therewith, plaintiff testified he believes that Aaberg set up the process of selecting an O&M manager so that Rea would be chosen for the position and Aaberg did that because Rea’s “personality is that he would not challenge Aaberg. He was what is coined as a yes man.” Asked if he would have been selected for the permanent O&M manager position if he had been given the opportunity that Rea was given to be the interim O&M manager and show what kind of a job he could do, plaintiff stated that even with such an opportunity he would not have been given the permanent position of O&M manager because he is not a yes man. Plaintiff stated Aaberg wanted a yes man and so if plaintiff had run the position on an interim basis the way that plaintiff believed it should be run, Aaberg would not have given him the position on a permanent basis. However, he added that if there had been an interview process, then he would have stood a better chance at being made the permanent O&M manager because with an interview process other people besides Aaberg would have been making the selection. He added that to his knowledge, that was the only time a position was filled at El Segundo without an interview process.

Defendant Rea’s declaration sets out his qualifications for the O&M manager position. In 1983 he began working at the El Segundo plant and thereafter reached the top classification in his bargaining unit and was later promoted numerous times. He was working in the position of shift supervisor in October 2003 when Aaberg asked him to take over the position of interim O&M manager. He was then permanently promoted to that position.

By the time plaintiff’s deposition was taken in 2005, plaintiff had worked at NRG El Segundo for four years and Rea had worked there for almost 25 years. Plaintiff stated that as long as he has known Rea, up until the point where Rea was put into the interim O&M manager position, Rea was always a shift supervisor and Rea had “never really stood forward as a lead shift supervisor. He’s kind of blended into the background.” Plaintiff stated Rea turned down the position of training supervisor, which plaintiff stated was a position considered to be a developmental position for promotions. However, in Rea’s declaration, Rea stated he has held the position of training supervisor. Plaintiff admitted that other than what he can say from his own observations, he has no knowledge of Rea’s leadership and experiences.