Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS00664
BLEASE, J.
Sandra Martin appeals from a summary judgment in favor of the Regents of the University of California and Philip Raimondi. Martin filed this action alleging gender discrimination, retaliation, and harassment.
Defendants adduced evidence plaintiff’s employment contract was not renewed because of staff complaints. Plaintiff argued the real reason for the adverse action was gender discrimination and retaliation. However, plaintiff’s wholly circumstantial evidence does not raise a rational inference that discrimination or retaliation occurred. Summary judgment was also proper on plaintiff’s harassment by hostile work environment claim because none of the acts complained of were sexual in nature.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Raimondi is the medical director of the University of California Davis Health System Primary Care Network (PCN). In 1996, he interviewed plaintiff for a position as a podiatrist in the PCN. Plaintiff was hired for the position, and throughout her tenure, her employment was pursuant to a series of employment contracts. Most of these contracts were for a period of one year, but in 2002, she signed a two year contract that expired on September 30, 2004.
A. Early Complaints
Between approximately 1998 through early 2000, Raimondi received an inordinate number of complaints about plaintiff. Some of these complaints were conveyed directly to Raimondi by staff members, while others were conveyed by the practice managers at the various clinics at which plaintiff worked. The complaints consistently asserted that plaintiff did not work well with the other staff at the clinics.
As a result of the complaints, Raimondi held three meetings with plaintiff, in April and June 1999, and January 2000. Raimondi was not so much concerned with the truth of the complaints against plaintiff as the fact that there were numerous complaints -- more than for any other physician. For her part, plaintiff was concerned that Raimondi simply accepted the complaints without attempting to determine their truth. At the last meeting, Raimondi advised plaintiff that he would terminate her employment if he received one more complaint about her. Raimondi documented this meeting in a letter to plaintiff.
Soon after, plaintiff filed a grievance against Raimondi. The grievance alleged Raimondi treated plaintiff in a discriminatory manner on the basis of her gender. Specifically, “[t]he discriminatory treatment [was] unfair and unsubstantiated criticism and hostile treatment to which [her] male counterparts have not been exposed.” An investigation commenced, which resulted in the conclusion that there was no gender discrimination by Raimondi.
The investigation found that instances of plaintiff being rude and abusive with clinic staff had occurred, but that there was no evidence of on-going problems in the last six months, and that mitigating circumstances may have contributed to a stressful environment leading to the incidents. However, the investigation review recommended Raimondi take supervisor training and counseling to enhance his communication skills.
Plaintiff appealed the first step review, resulting in a second review by James McElroy, who made a formal finding that there was no evidence to support a finding of gender discrimination. Informally, McElroy suggested the letter threatening plaintiff’s termination be removed from her file, and that Raimondi develop his communication skills and consider changing his management style. The letter was removed from plaintiff’s file.
B. 2003 Complaints
Raimondi received no further complaints from staff about plaintiff until August 2003. At that time, two staff members at the PCN clinic in Rancho Cordova reported that plaintiff was subjecting them to a hostile work environment. Because plaintiff had accused him of discrimination following his handling of the prior staff complaints, Raimondi did not perform any investigation and did not talk to plaintiff about the complaints, but directly forwarded the complaints to Gloria Alvarado, Executive Director of Human Resources.
Alvarado assigned Marie Lumbard to investigate the complaints. Lumbard’s report, to which plaintiff was allowed to provide input, was completed on January 5, 2004. The report made no conclusions, but was merely a compendium of statements made by the employees Lumbard interviewed. After the report, Raimondi discussed with Alvarado and Mike Sheesley, from Employee and Labor Relations, whether plaintiff’s employment should continue. They did not come to a conclusion, although Raimondi felt it would be appropriate to terminate her.
On January 28, 2004, Raimondi received a letter from an attorney representing plaintiff. The letter accused him of discriminating against plaintiff.
C. Orthopedic Clinic Complaints
In March, 2004, Dr. Stephen Pinney, chief of the foot and ankle service for the orthopedics department, met with Raimondi to express concerns about plaintiff and to request that she be removed from the orthopedic clinic. Dr. Pinney’s concerns were that plaintiff was not an effective member of the team due to poor, or lack of, interaction with the other team members. Raimondi asked Dr. Pinney to put his concerns in writing.
Dr. Pinney wrote a letter to Raimondi complaining of several aspects of plaintiff’s performance, but stated that her “failure to function[] as an effective member of the foot and ankle team” was the factor leading him to request that plaintiff’s affiliation with the orthopedic department be terminated. Raimondi forwarded this letter to Alvarado for review by Human Resources.
Human Resources initiated an investigation into the allegations in Dr. Pinney’s letter. Alvarado and Sheesley recommended plaintiff be placed on paid administrative leave while the investigation was conducted. On April 16, 2004, Raimondi sent plaintiff a letter informing her of the paid leave, and advising her that the purpose of it was to review concerns recently raised regarding her performance. Shortly thereafter, Raimondi was advised that plaintiff had filed a complaint with the Department of Fair Employment and Housing (DFEH) against defendants for gender discrimination, harassment, and retaliation.
The investigation was conducted by Robert Murta, who was then the Executive Director of Human Resources. Murta reviewed the investigation previously conducted by Lumbard, but determined it was a separate and distinct matter, since it covered incidents occurring in the Rancho Cordova clinic, while Dr. Pinney’s letter covered incidents occurring at the orthopedic clinic in Sacramento. Murta interviewed six staff members at the orthopedic clinic. These interviews may be characterized as follows: the three medical assistants who worked directly with plaintiff had complaints about the way they were treated, but the nurses, including the nurse manager, a senior vocational nurse, and a clinical nurse who did not work directly with plaintiff, had generally positive comments regarding plaintiff.
Murta also interviewed Dr. Pinney, who expressed frustration over the working atmosphere and poor communication with plaintiff. He felt plaintiff was uncooperative with him and brusque with the staff.
Murta concluded the allegations of plaintiff’s poor interactions with the nursing staff were true, particularly with the medical assistants who worked directly under plaintiff’s supervision. He said that the strained relationship between plaintiff and Dr. Pinney was described by both as “dysfunctional.”
Based on the continuing complaints about plaintiff, the investigation conducted by Murta, and the earlier investigation by Lumbard, Raimondi decided not to renew plaintiff’s contract when it expired on September 30, 2004.
After plaintiff filed her complaint in this action, defendants filed a motion for summary judgment, which the trial court granted. As to the first cause of action for gender discrimination, the trial court found plaintiff had not stated a prima facie case. Citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz), the court stated that a prima facie case requires a showing that: 1) plaintiff is a member of a protected class, 2) she was performing competently, 3) she suffered an adverse employment action, and 4) some other circumstance suggested a discriminatory motive for the adverse action. The trial court found plaintiff’s evidence was insufficient to satisfy the last requirement of a prima facie case.
The trial court further found that assuming plaintiff’s evidence was sufficient to establish a prima facie case, defendants had submitted evidence of a legitimate, nondiscriminatory reason for not renewing plaintiff’s contract.
As to the cause of action for retaliation, the trial court found plaintiff had established a prima facie case, but had not proffered sufficient evidence to establish that the legitimate business reason for not renewing her employment was merely a pretext for what was, in fact, retaliation. The court found plaintiff’s evidence insufficient because there was nothing to show that Raimondi reacted negatively either to her April 2000 grievance or her April 2004 DFEH complaint. As to the former, plaintiff worked without incident for three years after the grievance. As to the latter, the complaint was filed after Raimondi had already placed her on administrative leave to investigate the allegations against her.
The trial court also found defendants were entitled to summary adjudication on the cause of action for harassment. The court found that most of the conduct complained of (refusing to communicate or supply administrative support, placing her on administrative leave, changing her job duties, interfering with her patients, denying her requests to further her skill, and refusing to conduct an appropriate investigation) were not harassment because they constituted conduct necessary to a supervisor’s job performance and business or personnel management decisions. The remaining allegations, that Raimondi treated her in a hostile or demeaning way, also did not constitute harassment. The court found the evidence did not demonstrate that defendants applied a different standard to her based on gender, and did not demonstrate that harassing conduct was so pervasive that it altered her working conditions.
DISCUSSION
I
Gender Discrimination Claim
Plaintiff asserted a cause of action for gender discrimination pursuant to the Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (a). That section provides in pertinent part: “It shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, . . . to discharge the person from employment . . . .”
A. Burden of Producing Evidence
At trial, plaintiff would have the burden of making a prima facie case, consisting of evidence she was a member of a protected class, she was performing her job competently, she suffered an adverse employment action, and some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) This would result in a presumption of discrimination, shifting the burden to defendants to show a legitimate non-discriminatory reason for the adverse action. If defendants were to be successful, the presumption would disappear, leaving plaintiff with the burden of persuading a trier of fact that the employer’s proffered reason was a pretext. (Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1097 (Kelly).)
Defendant’s motion for summary judgment modifies the order of the showings. The employer, as the moving party, may rely on a showing that there were nondiscriminatory reasons for the adverse action. It satisfies its burden if it presents evidence that would permit a trier of fact to find that the adverse action was the result of nondiscriminatory reasons. (Kelly, supra, 135 Cal.App.4th at pp. 1097-1098.) To defeat the summary judgment motion, the employee must then adduce evidence that would be sufficient to permit a rational inference that the employer’s actual motive was discriminatory. (Guz, supra, 24 Cal.4th at p. 361.)
B. Plaintiff’s Evidence that Reason Given for Action was Pretextual
There is no real question but that defendants met their burden of showing nondiscriminatory reasons for the non-renewal of the contract. Defendants relied on evidence that the reason for plaintiff’s termination was that she was unable to get along with clinic staff. In addition to Raimondi’s declaration, this evidence consisted of e-mails from three of the clinic managers complaining of plaintiff’s treatment of staff, a letter from a doctor documenting complaints from the nursing staff, three written complaints from clinic staff, a formal review of plaintiff’s grievance concluding rude and abusive behavior with clinic staff had occurred, a letter from Dr. Pinney complaining of plaintiff’s failure to function as an effective member of the team, and the deposition testimony of four medical assistants complaining of the way plaintiff treated them.
The issue here is whether plaintiff met her burden of showing that a reasonable trier of fact could conclude from her evidence that defendants’ proffered reasons were pretextual. A plaintiff may meet her burden and avoid summary judgment by offering “substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
Plaintiff attempted to show that defendants’ explanation for not re-hiring her was not credible, not by showing that there were no staff complaints about her, but by arguing there was no merit to the staff complaints about her, by arguing that other doctors (namely Pinney) were the subject of staff complaints, yet no action was taken against them, and by arguing that the complaints against her were not properly investigated.
Plaintiff presented evidence that she treated staff no worse than other physicians, and argued the complaints against her were trivial or were made by problematic employees. Essentially, her argument was that the complaints against her had no merit or were not true. However, “[i]t is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.) “[C]ourts ‘only require that an employer honestly believed its reason for its actions, even if its reason is “foolish or trivial or even baseless.”’ [Citation.]” (Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1063.) There is no question but that numerous complaints were made, and that defendants honestly believed the complaints were serious enough to warrant non-renewal of plaintiff’s contract.
As to plaintiff’s claim that the investigation into the complaints against her were inadequate to her detriment, she sets forth no evidence to support this claim.
Plaintiff’s argument that Dr. Pinney did not suffer any adverse action because of staff complaints does nothing to show defendants’ reasons were discriminatory. A showing that defendants treated similarly situated men more favorably than plaintiff would be probative of pretext (Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641), but the evidence falls short of such a showing. Plaintiff was not similarly situated with Dr. Pinney. Dr. Pinney was chief of the orthopedic foot and ankle service for the Department of Orthopedics. Plaintiff was a non-surgical podiatrist employed by the U.C. Davis Health System Primary Care Network. Plaintiff’s supervisor was Raimondi. Plaintiff admits Dr. Pinney’s supervisor was Dr. George Rab. Rab stated he never received any formal complaints about Dr. Pinney. By contrast, Raimondi stated he received more complaints about plaintiff than any other physician. Additionally, defendants adduced evidence that other similarly situated male physicians were terminated for similar reasons. Raimondi terminated the contracts of eight male physicians, some of whom were terminated because they could not get along with staff members.
Plaintiff’s evidence was insufficient to allow a rational inference that defendants’ proffered explanation for the non-renewal of her contract was not worthy of credence.
C. Plaintiff’s Evidence of Discriminatory Intent
Plaintiff attempted to show through the testimony of other female physicians who had worked for Raimondi and other unattributed statements contained in an investigative report, that he discriminated against women. We first address the admissibility of the unattributed statements in the investigative report as well as attachments to the female physicians’ reports, because plaintiff claims the trial court improperly excluded them.
1. Statements and Attachments were Hearsay
The trial court sustained defendants’ objections to statements contained in a report written by Annetta Myers. This report was prepared in 2001 as a part of the level II review of plaintiff’s grievance pursuant to University of California policy. The statements contained in the report appear to be responses from staff when interviewed about gender discrimination by Raimondi. As an example, one statement reads: “The idea of Raimondi being gender biased is absolutely ridiculous. Raimondi is fair, tells me when I screw up, but is the first to promote me when I do good, is far and away the best boss.” Another statement reads: “Raimondi tends to target women more than men. I have seen Raimondi treat both poorly, but more so with females than males. Raimondi is belittling, demeaning, writes inflammatory emails, [and] is rude.” None of the statements is attributed to its author.
Plaintiff argues the statements were admissible because they are evidence of defendants’ knowledge that Raimondi discriminated against women employees and evidence of their failure to take corrective action.
While the employer’s knowledge of discrimination by an employee may be material to recovering damages from the employer for such discrimination (see Civ. Code, § 3294, subd. (b)), at this stage of the summary judgment, the only issue is whether there is evidence a discriminatory reason motivated the employer in taking the adverse action. The statements are hearsay for that purpose because they are evidence of a statement that was made other than by a witness while testifying, and are offered to prove the truth of the matter stated, i.e., that Raimondi discriminated against women. (Evid. Code, § 1200.) The statements were properly excluded by the trial court.
The trial court also properly sustained objections to the attachments to the declarations of the female physicians. The attachments consisted of letters the declarants had written prior to their declarations describing their experiences with Raimondi.
Plaintiff argues they are not hearsay because they do not recount someone else’s statements, and points out that the declarants could have made the same statements in their declaration. Also, plaintiff again argues that the statements are admissible to show defendants had notice that Raimondi discriminated against women.
The test of hearsay is not whether the person making the prior statement is the same person before the court. It is hearsay because it was not made by the witness “while testifying at the hearing . . . .” (Evid. Code, § 1200, subd. (a).) Even if the statements would have been admissible had they been part of the declaration, they are not admissible when simply attached to the declaration. As with the statements in the Myers report, the attachments are being offered here to prove the truth of the matters asserted, not to prove the defendants’ state of mind or knowledge, which is not at issue in this summary judgment proceeding.
2. Declarations of Female Physicians
Plaintiff presented the testimony of six female doctors who worked with Raimondi. None of these physicians claimed to have suffered any adverse employment action from Raimondi.
The trial court found that the deposition testimony and declarations of the female physicians failed to establish a prima facie case of discrimination because they did not suggest a discriminatory motive for the adverse action.
The court found that as a preliminary matter, all of the female physicians statements were “largely conclusory.” None of them mentioned any specific circumstance, but rather characterized Raimondi as treating men and women differently. The trial court also found that two of the female physician declarations, those of doctors Bisharat and Sahba, were from physicians who were not working under Raimondi when he received the first complaint regarding plaintiff, and had not worked for Raimondi for a year prior to the first complaint.
The court stated that the most important deficiency of plaintiff’s evidence was that none of the female physicians who complained that Raimondi treated men and women differently claimed to have suffered any adverse employment action because of their gender. The court found that short or even rude treatment of women was insufficient to suggest a discriminatory motive for the non-renewal of plaintiff’s employment contract.
Even if the trial court was wrong in determining that the statements were insufficient to establish a prima facie case, the summary judgment was properly granted because the statements were insufficient to allow a rational inference that defendants’ proffered reason for not renewing plaintiff’s contract was pretextual.
Dr. Albina Gogo stated she was also counseled by Raimondi because of her interactions with staff. She said his manner of speaking to her was “very harsh” and that she felt unappreciated. She stated she had thought the hierarchy in medicine ended after residency, and that she felt she was being chastised as a child and not respected as a physician. She said she had witnessed Raimondi responding to certain women physicians differently, and that he would be curt, short, and shoot down the opinions voiced by certain women. She did not ever recall him doing the same with male physicians.
Raimondi stated he had to counsel Gogo about her interactions with staff. He stated the difference between Gogo and plaintiff was that Gogo listened to what he said and agreed to work on the problem. Gogo continues to be an employee of the PCN.
The other female physicians also declared that Raimondi “treated men and women very differently”, that he was “very domineering with women,” and that in mixed groups he reacted negatively to comments made by women, but did not react this way to men.
The trial court considered this evidence, but found it to be “largely conclusory” and found: “Not one individual mentions a specific meeting or other circumstance when the behavior complained of occurred. Further, two declarants, . . . did not even work under Raimondi after 1998, the year before he received the first email complaining about plaintiff. More importantly, however, absent from all the declarations and deposition testimony is any evidence that Raimondi ever took any action on the basis of gender that had any [e]ffect [on] the terms or conditions of employment . . . . At most, plaintiff presents evidence that Raimondi was, at some unspecified times, short with, perhaps even rude to, women physicians under his supervision in both ‘mixed company’ and in private.”
Plaintiff argues the trial court impermissibly weighed the evidence. We disagree. Even though the court may not weigh the evidence as though it were sitting as the trier of fact, it must nevertheless determine what the evidence could show, or what the inferences could imply to “a reasonable trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) The trial court did not engage in impermissible weighing of the evidence, but instead found that the evidence submitted by plaintiff was insufficient to meet plaintiff’s burden to defeat the motion for summary judgment.
To defeat the motion for summary judgment, an employee is required to adduce evidence that would permit a reasonable trier of fact to find that intentional discrimination occurred. (Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at p. 1098.) The purpose of a summary judgment motion is to weed out those cases that do not warrant the time and cost of factfinding by trial. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735.) Therefore, the plaintiff must produce “‘substantial responsive evidence’” that the defendants’ showing of cause was untrue or pretextual, and speculation does not constitute substantial evidence. (Ibid.) Where, as here, the plaintiff’s evidence of discriminatory intent is circumstantial, the evidence must be specific and substantial to create a triable issue of fact. (Vasquez v. County of Los Angeles, supra, 349 F.3d at p. 642.) Finally, the employee’s evidence must relate to the employer’s motivation for the adverse action and must demonstrate a causal link between the prohibited motivation and the adverse action. (King v. United Parcel Service, Inc, supra, 152 Cal.App.4th at pp. 433-434.)
In this case the other physicians stated they observed Raimondi treating men more favorably than women in mixed company, but there was no evidence to allow a trier of fact to make the link between motivation and adverse action. None of the women claimed to have had any adverse action taken against them because of their gender. There was no evidence in the record linking any adverse action taken by Raimondi against an employee to a discriminatory intent on his part. In light of defendants’ strong showing of proper grounds for action, any inference of discriminatory intent is unreasonable absent such evidence. Summary judgment for the employer is appropriate where the employer makes a strong showing of innocent reasons, and the countervailing circumstantial evidence of discriminatory motive is too weak to raise a rational inference that discrimination occurred. (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 362.) No reasonable inference of discrimination can be drawn from plaintiff’s evidence. Therefore, plaintiff has not met her burden of demonstrating a triable issue of fact, and the summary judgment was properly granted.
The cases plaintiff cites do not further her argument. She cites Strumph v. Thomas & Skinner, Inc. (7th Cir. 1985) 770 F.2d 93, and argues the statements of other employees can show discrimination even where the other employees had no adverse action taken against them. However, in Strumph there was direct evidence of discriminatory intent and the circumstantial evidence was strong enough to support a reasonable inference of discrimination. The direct evidence in that age discrimination case was a statement by the president of the company that he wanted to eliminate older employees. (Id. at p. 97.) The circumstantial evidence was the statement of one older employee that his job duties were decreased until he had nothing of substance or importance to do and the statement of another that she felt unwelcome in her job because of her age. (Ibid.)
Here, by contrast, the other female physicians stated they thought Raimondi treated male physicians better in a group than some female physicians, but none of them suffered any adverse employment action. Although most of the physicians stated that Raimondi’s treatment of them was the reason or a reason that they left the PCN, none asserted she left the PCN because of gender discrimination in the workplace.
Plaintiff cites United States Postal Service Bd. Of Governors v. Aikens (1983) 460 U.S. 711, 713, fn. 2 [75 L.Ed.2d 403, 409], for the proposition that an employer’s derogatory remarks about persons in a protected class may show discriminatory intent. However, in that case, the evidence showed white persons were consistently promoted over black persons, the plaintiff had no negative comments in his employment file, he had more seniority and training than the white persons promoted above him, he had substantially more education (a Masters Degree and three years toward a Ph.D.) than white employees who were promoted ahead of him, none of whom had a college degree, and the person in charge of promotion had made numerous derogatory remarks about blacks. (Ibid.) The court stated that it would not be error for the trier of fact to find on all the evidence that the employee suffered discrimination.
Plaintiff’s evidence, by contrast, shows no preference toward males in hiring or promotion, and no derogatory comments by Raimondi about women from which a trier of fact could infer a discriminatory motive. The only evidence from which a trier of fact could infer anything other than gender neutral conduct on Raimondi’s part, is the opinion of some women who worked for him that he was nicer to men. When considered in light of plaintiff’s well documented problems relating to other staff members, such opinions, which were based on very little in the way of specific facts, are simply insufficient to produce a reasonable inference of discrimination.
In Robinson v. Runyon (6th Cir. 1998) 149 F.3d 507, 512-513, also cited by plaintiff, the issue was whether the trial court erred in excluding evidence of racist writings that had circulated in the work place with the knowledge and acceptance of management. By contrast, there is no evidence in this case that Raimondi or any other supervisor ever made derogatory comments on the basis of gender. The Robinson case was in a different posture from the instant case, because it was concerned only with whether the evidence should have been excluded at trial because it was irrelevant and more prejudicial than probative.
Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, also cited by plaintiff, is inapplicable. That appeal was taken after a trial on the merits and verdict for the plaintiff. The court held there was sufficient evidence to support the verdict, a very different question than the one posed here. Additionally, unlike this case, there was direct evidence of discrimination. (Id. at pp. 652-653.)
Here, plaintiff was put to the test of showing that her circumstantial evidence demonstrated a reasonable inference that the action taken against her was motivated by discrimination. Plaintiff’s evidence was too speculative and too attenuated to meet this test.
II
Retaliation
To establish a prima facie case of retaliation, plaintiff must show she engaged in protected activity after which she was subjected to an adverse employment action, and there was a causal link between the protected activity and the adverse action. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69 (Morgan).) The adverse action must follow within a relatively short time of the protected activity. (Ibid.)
On a motion for summary judgment, the parties are subject to the same shifting burdens set forth in the discussion of plaintiff’s gender discrimination claim. Where, as here, the employer offers a legitimate reason for the adverse action, plaintiff must adduce evidence that would permit a reasonable trier of fact to find that the proffered reason was pretextual. (Morgan, supra, 88 Cal.App.4th at p. 68.) As with evidence of discrimination, circumstantial evidence of pretext must be specific and substantial to create a triable issue with respect to whether the employer intended to discriminate on an improper basis. (Id. at p. 69.)
The complaint does not specify what actions defendants are alleged to have retaliated against. Plaintiff’s briefs on appeal mention only the 2000 grievance and the 2004 letter from plaintiff’s attorney accusing Raimondi of gender discrimination.
There was no direct evidence of pretext in this case, and the only circumstantial evidence offered was the fact that plaintiff filed one grievance and one FEHA complaint against Raimondi, that her attorney sent one letter, and that the non-renewal of her contract occurred afterward.
As stated above, a prima facie case for retaliation must show that the adverse action followed within a relatively short time of the protected activity. However, the 2000 grievance was too remote in time to be considered a motivating factor in the action taken against her in 2004.
As to the other two actions--the letter from plaintiff’s attorney and the FEHA complaint--the evidence is simply too weak to raise a triable issue in light of defendants’ strong showing of innocent reason. The fact that plaintiff was not terminated after her 2000 grievance, but instead worked nearly three years without incident, that the letter from her attorney was sent after an investigation into complaints against plaintiff had been completed, and that the DFEH complaint was sent after plaintiff had been placed on paid administrative leave, further weaken plaintiff’s showing of pretext. Circumstantial evidence of pretext must be specific and substantial to overcome defendants’ evidence of innocent reason for action, and plaintiff’s evidence falls short.
III
Sexual Harassment Claim
Plaintiff’s second cause of action alleged she suffered harassment due to her gender. She alleged this harassment included speaking to her in a hostile and demeaning way, refusing to communicate with her, instigating groundless allegations of misconduct, holding her to performance standards not applied to male physicians, refusing to respond to her requests for administrative support, withholding administrative support, placing her on administrative leave, changing her job duties, giving her a demeaning job assignment, interfering with her relationships with patients, refusing to investigate her complaints appropriately, and refusing her requests to further her professional skills.
The FEHA prohibits both harassment and discrimination, but they are distinct types of conduct. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 62 (Janken).) Harassment is “a type of conduct not necessary to a supervisor's job performance,” and is to be distinguished from “business or personnel management decisions-which might later be considered discriminatory-[which are] inherently necessary to performance of a supervisor's job.” (Id. at p. 63.)
Harassment includes “verbal epithets or derogatory comments, physical interference with freedom of movement, derogatory posters or cartoons, and unwanted sexual advances.” (Janken, supra, 46 Cal.App.4th at p. 63.) It is “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Ibid.)
Discrimination, by contrast, arises “out of the performance of necessary personnel management duties.” (Janken, supra, 46 Cal.App.4th at p. 63.) It arises out of the type of conduct that is essential to personnel management. (Id. at pp. 63-64.)
None of the conduct in which Raimondi was alleged to have engaged was outside the scope of necessary job performance. All of it was conduct which might later be perceived to be discriminatory, but none of it was in the nature of verbal epithets or derogatory comments based on gender, derogatory posters or cartoons, or unwanted sexual advances.
Plaintiff argues she presented evidence of harassment arising from a hostile work environment. To prevail on such a claim, a plaintiff must “demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).)
The California Supreme Court has cited with approval the federal Equal Employment Opportunity Commission’s definition of sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the ‘purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.’ (29 C.F.R. § 1604.11(a)(3) (2004).)" (Miller, supra, 36 Cal.4th at p. 463; Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278 (Lyle).) A hostile work environment sexual harassment claim requires that the employee show she was subjected to sexual advances, sexual conduct, or sexual comments that were unwelcome because of sex and were “‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment[.]”’ [Citations.]” (Lyle, supra, at p. 279.)
Because Raimondi’s alleged conduct had absolutely nothing to do with sex or with plaintiff’s gender, she cannot state a claim of hostile work environment sexual harassment. Her real claim was that she was treated more harshly than her male counterparts, which is a claim of discrimination, not harassment, and which we have already addressed in Part I.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
We concur: SCOTLAND, P. J., ROBIE, J.