Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 434179
OPINION
Richman, J.
Jorge Montiel sued his employer, the City and County of San Francisco (City), for allegedly violating his rights under California’s Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)). Montiel’s complaint set forth two causes of action, which in essence amounted to three distinct FEHA-based claims. The trial court granted the City’s motion for summary adjudication on two of the claims, for discrimination and retaliation, but denied it as to the third, for race-based harassment. That cause of action went to a jury, which returned a verdict in favor of the City.
Montiel has appealed, contending first that the City’s motion for summary adjudication was erroneously granted. We reject this contention because our de novo review leads us to agree with the trial court that Montiel failed to make the required prima facie case and did not rebut the City’s legitimate nondiscriminatory or nonretaliatory explanation. We also reject Montiel’s contention that an in limine motion prejudiced him in presenting his harassment claim to the jury. In light of these conclusions, we affirm.
BACKGROUND
Montiel describes himself as “of Mexican (Hispanic) national origin.” He worked in the City’s Department of Public Works (DPW) as an Environmental Control Officer (ECO) from 1998 to 2005. Montiel described his duties as an ECO as including “working under general direction, patrolling in assigned districts or areas to enforce compliance with municipal[, p]olice, health and public works codes relative to litter and environmental control regulations . . .; investigate reports or complaints regarding environmental health or safety concerns; . . . issue written warnings and citations, take photographs and notes to document violations, interview witnesses and violators, . . . prepare written reports, correspondence and documentation which may be used for court proceedings, . . . testify in court,” and “respond[ing] to calls via cell phone to citizens and co-workers.” The job also required the ECOs to “drive motor vehicles . . . as required.”
The salient details of what occurred during the period of Montiel’s employment are not really in dispute. They are set out in the detailed 19-page order filed by the Honorable Peter Busch when he ruled on the City’s motion. The order also describes the parties’ differing interpretations. We have confirmed the accuracy of the factual recitals in the order—none of which are challenged by Montiel here—from the parties’ respective statements of undisputed facts. In the interest of not making this opinion longer than necessary, with minor editorial changes we adopt Judge Busch’s synopsis of the controversy:
“Upon employment, DPW assigned Montiel to the ‘Adopt-A-Street’ Program. In 2001, the three ECOs assigned to the program were transferred back to the general ECO unit, and no further ECOs were assigned to the program.
“According to Montiel, in approximately January 2001, his supervisor in the general unit, Ernie Easterday, called Montiel into his office. Easterday told Montiel that a female member of the public had complained that an African-American male driving DPW truck #407 had cursed her out. Truck #407 was assigned to Montiel. According to Montiel, Easterday suspected that a certain co-worker of Montiel’s may have been involved in the incident. Montiel told Easterday he hadn’t witnessed such an incident. Montiel contends that Easterday continued to pressure Montiel to say that he had seen such an incident. He alleges that Easterday took away his bilingual pay and criticized his performance because Montiel would not say what Easterday wanted.
“Montiel does not recall whether this particular co-worker was driving with him in truck #407 on that day.”
“In the Spring of 2001, the City accepted applications for the . . . Senior ECO position at DPW. According to Montiel, he submitted an application for the position but it was lost.
“In June and July of 2001, DPW attempted to schedule an interview with Montiel in connection with an internal investigation regarding a complaint by other ECOs. Montiel was given a letter by Assistant Superintendant Scott Shaw notifying him that he was scheduled to be interviewed on June 6, 2001. The letter stated the interview was to discuss ‘ongoing performance problems’ and ‘issues regarding your conduct and interactions with other . . . employees.’ However, ultimately, Montiel was never interviewed or disciplined regarding any of the alleged conduct.
“In May 2003, Montiel used his cell phone while driving his DPW assigned vehicle. DPW has a policy against cell phone usage while operating its vehicles. Montiel was cautioned by his immediate supervisor, Robert Arevalo. A couple of days later, Sandy Cuadra, a Supervisor II senior to Robert Arevalo, also gave Montiel a verbal counseling. In a memo to her own supervisor, Chris Montgomery, Cuadra memorialized the verbal counseling in writing. She gave a copy of the memo to Montiel and put a copy in her supervisor drop file. She did not cause the memo to be put in his official personnel file. Montiel claims that soon thereafter, he saw Cuadra talking on a cell phone while driving, but he didn’t report it, because he couldn’t break the ‘chain of command.’
“On June 3, 2003, Montiel got into a car accident while driving at work with co-worker Derek Madaris and, consequently, Montiel went out on workers’ compensation leave until October 9, 2003.
“Upon return from workers’ compensation leave, Montiel discovered that his previously assigned truck (#407), was now assigned to his supervisor, Senior ECO Jody Monahan. Montiel was assigned another truck that ran well, but did not have air-conditioning.
“On October 23, 2003, Montiel wrote a 6-page letter of complaint to DPW’s EEO manager, Tom Willis, which he sent certified mail. In the letter, Montiel complained about being counseled for his cell phone use while driving, about being assigned a truck without air-conditioning, about various policies and procedures at DPW and in his unit, about his supervisor calling him ‘Jorge’ instead of ‘George’ and making fun of his accent, and about his health benefits being cut off.
“On October 28, 2003, Montiel and Norman Lambert, Montiel’s union shop steward, met with Willis regarding Montiel’s complaint. Willis had not received the certified mail letter, so Montiel gave him a copy of it. During the meeting, Montiel told Willis he would rather wait to answer questions regarding his complaint until he could have his ‘other’ shop steward in attendance. He contends Willis refused this request.
“After the meeting, Willis sent Montiel a letter memorializing the fact that Montiel refused to answer questions regarding his complaint during their meeting. He further clarified that he was willing to meet again with Montiel and his other union rep, but his questions would be directed to Montiel only. From the fall of 2003 to the spring of 2004, Willis sent Montiel two additional letters offering to meet with him to discuss his complaint.
“On November 19, 2003, Montiel submitted a letter to Cuadra stating that Monahan had refused to let him use a truck other than his assigned truck on three days in October. Montiel claimed that there were extra trucks available with air conditioning that he could have used. Cuadra referred this letter to her supervisor, Chris Montgomery, who forwarded it to Willis.
“On November 20, 2003, Montiel went on extended leave, which he contends was due to stress. On January 15, 2005, all of DPW’s ECOs and senior ECOs were laid off. Montiel does not recall whether he returned to work at DPW any time prior to the layoff.
“On January 18, 2005, with no break in service with the City, the City appointed Montiel to his current position as a [Parking Control Officer at the Department of Parking and Traffic]. Montiel received the position as the result of a ‘near list’ procedure used by the City to find employment for its laid off employees.”
During the period Montiel was on leave, and while still employed by the City, Montiel filed an administrative complaint with the Department of Fair Employment and Housing (DFEH). The Department took no action on the complaint beyond issuing Montiel a “right to sue” letter on April 14, 2004.
In August 2004, Montiel commenced this action by filing a complaint for damages against the City. In his complaint, Montiel stated FEHA-based causes of action for “Race, Color and National Origin Discrimination” and “Retaliation.”
The complaint also named Edwin Lee, the Director of DPW, as a defendant. Lee demurred on the ground that he had not been named in Montiel’s administrative complaint to DFEH, and thus Montiel had failed to exhaust his administrative remedies. Apparently accepting the soundness of Lee’s demurrer, Montiel stipulated that it should be sustained without leave to amend, and Lee dismissed from the action with prejudice.
In January 2006, Montiel filed what he called a “Supplemental” to his complaint that would have added allegations that: (1) on January 15, 2005 Montiel “was laid off (terminated) . . . without cause or provocation; and (2) also in January 2005, Montiel had exhausted his administrative remedies after filing a complaint with the United States Equal Employment Opportunity Commission, “which referred same to the [DFEH] which on January 28, 2005 issued a Notice of Right to Sue thereon.”
The City moved to strike this pleading because it “was not filed in conformity with . . . Code of Civil Procedure section 464, which requires leave of court to file such a pleading.” The City also argued that “the court should not grant plaintiff leave to subsequently file the supplemental complaint because he is time-barred from suing the City for the alleged layoff under the FEHA,” in that more than one year had already passed from issuance of the second DFEH right-to-sue letter.
The trial court granted the City’s motion to strike and indicated that it “cannot grant Plaintiff leave” to refile “the supplemental complaint because he is time-barred from suing the City under . . . FEHA . . . for discrimination based on his alleged layoff on January 15, 2005, as Plaintiff received his Notice of Right to Sue from . . . [DFEH] more than one year ago.”
In June 2006, the City moved for summary judgment or summary adjudication. Construing Montiel’s complaint as actually stating three causes of action, the City argued each was flawed, as follows: (1) in his “first Cause of Action for . . . race, color and national origin race discrimination,” Montiel “has not stated a prima facie case of discrimination and has not produced evidence of pretext sufficient to overcome . . . legitimate business reasons for the alleged actions”; (2) Montiel’s “Cause of Action for race harassment” did not involve “discriminatory personnel actions” and any harassment “was neither severe nor pervasive”; and (3) concerning his “Cause of Action for retaliation,” Montiel could not show that he had “suffered an adverse employment action” or was the victim of a manufactured pretext. The City supported its motion with extensive excerpts from Montiel’s deposition and ten declarations from City employees.
Montiel’s evidentiary opposition to the motion was based on his declaration and a December 2004 report by a psychologist who had examined him.
The summary motion/adjudication motion was heard and decided by Judge Busch, who, as noted, filed a lengthy order in which he granted the City’s motion as to two of the three claims asserted by Montiel. Judge Busch first noted that events or incidents that occurred prior to April 9, 2003—that is, one year prior to Montiel’s filing his complaint with the DFEH—would not be considered because they were outside the statute of limitations period. Next, he concluded that Montiel’s cause of action for “race, color and national origin” discrimination was defective because “he cannot meet his prima facie burden to state a claim of discrimination, and because he cannot rebut the City’s legitimate non-discriminatory reasons for its actions with evidence of pretext.”
Even so, Judge Busch concluded that none of the “Conduct Outside the Limitations Period” was sufficient to form a basis for liability.
Judge Busch also granted the City summary adjudication on Montiel’s retaliation cause of action for the same reasons as the discrimination claim, because Montiel “can neither establish a prima facie case nor can he rebut the City’s legitimate non-retaliatory reasons for its actions.” Judge Busch denied summary adjudication on the harassment claim, determining that it presented a material issue of fact that required a trial.
The harassment claim proceeded to trial before a jury. However, Montiel did not include a reporter’s transcript of the trial for the record on appeal. We do know that on February 7, 2007, the jury returned a special verdict by which it found (by a 10-to-2 vote) that Montiel had been “subjected to unwanted harassing conduct because of his race or national origin,” but further found (voting 9-to-3) that the harassment was not “so severe, widespread, or persistent that a reasonable person of Hispanic descent or Mexican ancestry in Jorge Montiel’s circumstances would have considered the work environment to be hostile or abusive.” A judgment that Montiel take nothing was entered on February 27, 2007, from which Montiel filed a timely notice of appeal.
In addition to the judgment, Montiel purported to appeal from the summary adjudication orders on his discrimination and retaliation causes of action. The orders are not separately appealable, but they can be reviewed on appeal from the judgment. (Code Civ. Proc., § 437c, subd. (m)(1); Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 111; Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1013; Gaillard v. Natomas Co. (1989) 208 Cal.App.3d 1250, 1255, fn. 1.)
DISCUSSION
The Law We Apply To The Summary Adjudication Rulings
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
The law governing review of summary adjudication rulings has been stated by this court as follows:
“Our standard of review is well settled. Under Code of Civil Procedure section 437c, a motion for summary judgment or adjudication shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. On appeal from an order granting summary adjudication, we exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff’s theories and establishing that the action was without merit.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320; accord, Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
“[W]e must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment to decide whether evidence produced in support of the motion negates any of Montiel’s claims. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) Or, as we said in Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807, in affirming a summary judgment for the employer on a FEHA complaint, “We review the evidence presented to the trial court and independently adjudicate its effect as a matter of law. [Citation.]”
FEHA makes it illegal for an employer “because of the race, [or] . . . national origin . . . of any person, to . . . discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) The Supreme Court has stated that for a prima facie case of discrimination, “[T]he plaintiff must produce evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)
FEHA also makes it illegal for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Gov. Code, § 12940, subd. (h).) “California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
“Once an employee establishes a prima facie case, the employer is required to offer a legitimate, [nondiscriminatory or] nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of [discrimination or] retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional [discrimination or] retaliation.” (Yanowitz, supra, 36 Cal.4th 1028, 1042, citing this court’s decision in Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) Moreover, and as we have held, if the employee claims the employer’s ostensibly nondiscriminatory reason is in fact merely pretextual, “the plaintiff bears the burden of proving the employer’s proffered reason pretextual. [Citation.] When there is no disputed issue of material fact that the employer had a nondiscriminatory reason for the adverse employment decision, the employer is entitled to summary [disposition].” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)
One of the common elements of both prima facie cases for the causes of action resolved here by summary adjudication, and the only one approaching a term of art, is that Montiel must establish he was subjected to an “adverse employment action.” Speaking to just what constitutes an adverse employment action, Division One of this District recently explained: “ ‘A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.’ [Citation.] ‘ “[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.” [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any “action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.” [Citation.]’ [Citation.] The plaintiff must show the employer’s . . . actions had a detrimental and substantial effect on the plaintiff’s employment. [Citations.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 (McRae).)
Speaking at greater length on the point, the Supreme Court stated: “[W]e believe that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or other enumerated characteristics ‘in compensation or in the terms, conditions, and privileges of employment’ properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, the provision protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection that the FEHA was intended to provide.
“ . . . [T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees, that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz, supra, 36 Cal.4th 1028, 1053-1055, fns. omitted.)
Courts of Appeal have construed this and similar language as accepting that just what constitutes an adverse employment action is to be determined on a case-by-case basis according to an objective standard. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1381; Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357; Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511.)
Continuing the position he took in opposition to the motion below, Montiel devotes a great deal of space in his opening brief to numerous instances of alleged discrimination, retaliation, and harassment commencing in 2001. As indicated ante, in his written decision on the City’s motion Judge Busch excluded these purported events from consideration, reasoning as follows:
“In his opposition Montiel conceded that the City cannot be liable for any wrongdoing he alleges occurred prior to April 9, 2003, one year prior to his filing of his administrative [complaint with the DFEH]. [¶] Prior to filing a civil action alleging violations of FEHA, a plaintiff must timely file an administrative charge with the DFEH. The administrative charge must be filed within one year of the allegedly wrongful act. [¶] Montiel filed his administrative charge on April 9, 2004. Therefore, he is barred from recovery for the wrongful conduct that occurred more than one year prior to that date, or prior to April 9, 2003. Therefore, the only alleged acts that Montiel contends could be the basis for liability for discrimination and retaliation are: (1) the May 2003 write up for his use of a cell phone; (2) the failure to assign him a truck with air conditioning in October 2003; and (3) the cessation of his healthcare benefits.” (Citations omitted.)
This reasoning is completely sound. Montiel did state in his points and authorities in opposition to the City’s motion that he “neither alleges not attempts to allege actionable claims for incidents occurring prior to April 9, 2003.” He cannot repudiate that concession on appeal. (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 651.)
With certain exceptions not relevant here, FEHA is unambiguous on its chronological scope: “No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .” (Gov. Code, § 12960, subd. (d).) Thus, events occurring more than one year prior to the filing of an administrative complaint with DFEH cannot be actionable subjects of a FEHA-based complaint. This court has endorsed the reading of FEHA adopted by Judge Busch. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th 52, 63-64.)
We now proceed to our de novo review of Montiel’s challenge to Judge Busch’s summary adjudication rulings.
Summary Adjudication of Montiel’s Discrimination Cause of Action Was Appropriate
Judge Busch identified three incidents of alleged discrimination that fell within the governing limitations period. Although Montiel takes vigorous exception to such a limitation, we have already indicated that it is legally required. We therefore turn to the three incidents.
The first was the verbal counseling Montiel received In May 2003 for using a cell phone while driving an official vehicle. All Montiel has to say in his brief is that he “has clearly shown that such disciplinary action as more likely than not [was] racially motivated, that such disciplinary action materially altered the terms and conditions of his employment, and that the reasons given by the City for its actions are wholly without merit, unworthy of belief, and a mere pretext for discrimination as substantially reflected in the record herein.” We do not agree.
It is undisputed that the City had a policy against such usage, and that Montiel never denied violating the policy. The upshot was that Montiel received what appears to have been nothing more than a verbal admonishment. No letter of reprimand was placed in his personnel file. Judge Busch concluded that this was not an adverse employment action, meaning that Montiel failed to make a prima facie case, and in any event the action had the backing of a legitimate non-discriminatory purpose. From our independent review, we agree with both of these conclusions.
The counseling Montiel received was memorialized in a document prepared my Sandy Cuadra that is headed “Memorandum.” It recites that: “On Tuesday May 13, 2003 a meeting was held in the Graffiti Office with Environmental Officer Jorge Montiel. Also present at the meeting were Supervisor II Tim Hines, Local 790 Representative Jody Argo and myself. [¶] The reason for the meeting was to discuss Mr. Montiel talking on a cell phone while driving a City vehicle on Saturday May 10, 2003, as reported by the D.D.O. Mohammed Nuru. [¶] The meeting ended with Mr. Montiel receiving a copy of the Operations Employee Regulations Memo given by D.D.O. Mr. Nuru.” Ms. Cuadra stated in a declaration that at the meeting “Per DPW policy, I gave a copy of the memo to Montiel and also made a copy for his on-site file. However, I did not direct the memo to be put in Montiel’s personnel file because it was not a written reprimand. A written reprimand is a more severe form of discipline, which can be placed in the employee’s personnel file.”
The counseling does not amount to an adverse employment action. There was no evidence that it was “reasonably likely to adversely and materially affect [Montiel’s] job performance or opportunity for advancement” (Yanowitz, supra, 36 Cal.4th 1028, 1054), or that it had “a detrimental and substantial effect on [his] employment.” (McRae, supra, 142 Cal.App.4th 377, 386.) Montiel was not demoted, not transferred, and did not suffer any reduction in pay. In McRae, Division One of this District held that even when an admonishment or proof of a counseling—there called a letter of instruction—is put in an employee’s file, it does not “not rise to the level of an adverse employment action” as a matter of law because there was no evidence that the employer “would, or was likely to, deny employment benefits or privileges to an employee who had received a letter of instruction.” (Id., at p. 392.) Dealing with a much less formal action, we reach the same conclusion.
Because the counseling does not qualify as an adverse employment action, Montiel failed to establish it as a prima facie instance of discrimination. But even if he had made a prima facie case, the incident could not form the basis for his discrimination cause of action because the City had a legitimate purpose for the action—its policy against cell phone use. In light of the recent state-wide ban on cell phone use while driving, the non-discriminatory wisdom of enforcing the policy is not open to question. Moreover, the City presented evidence that the policy was applied to other DPW employees during Montiel’s employment.
The second incident concerned DPW assigning Montiel a truck in October 2003 that did not have air conditioning. We have examined Judge Busch’s reasoning on this point, and find it legally sound and factually correct. Rather than attempt to improve on it, we adopt it:
“Regarding the assignment of a vehicle without air conditioning to Montiel in October 2003, Montiel failed to present evidence to meet his prima facie burden that this assignment constituted an adverse employment action. Montiel admitted in his deposition that he was assigned a vehicle that ‘wasn’t that old . . ., actually worked good, [sic] but had no air conditioning.’ In this moderate climate, the lack of air conditioning in a vehicle can hardly be considered an adverse employment action.
“Furthermore, the City presented evidence that it had a legitimate non-discriminatory reason for its action. Montiel was assigned the vehicle that was available upon his return to work by Supervisor Sandy Cuadra.
“In opposition, Montiel complains that he was not allowed to use an alternative vehicle with air conditioning on hot days. However, as Montiel explains in his own deposition, DPW had a policy that was ‘very strict that if you were assigned a truck, you were the only person to drive it.’ Therefore, the refusal to allow him to drive a vehicle that was not assigned to him was understandable. Montiel further complains that Anderson, a white employee with less seniority than him, was assigned an air-conditioned vehicle. However, trucks were assigned by availability. Montiel presents no evidence that trucks were assigned by seniority. In fact, Montiel testified that when he first started working at DPW in 1998, he was assigned a brand new truck, and that he kept the same truck assignment until his worker’s compensation leave in 2003. Furthermore, the City presented evidence that Anderson shared a truck assignment with fellow ECO Larry Wong, whom Montiel admits was senior to him. Montiel and Wong could not share this truck because the two were on the same shift.
“Therefore, Montiel fails to rebut the City’s legitimate non-discriminatory reasons for its action with evidence of pretext.”
In its respondent’s brief, the City does flesh out Judge Busch’s reasoning with some cogent points. First, it notes that “Monteil’s work as an ECO required him to spend considerable amount[s] of time on tasks he could not perform in his assigned vehicle anyway, such as investigating complaints of illegal waste dumping, preparing citations, and appearing in court to defend the citations.” Second, the City accurately notes that “Montiel never produced any evidence that [air-conditioned] trucks were in fact unassigned and available when he returned to work. He did not and could not produce evidence of any Department rule, policy or practice entitling Montiel to reclaim the truck Cuadra had assigned to [ECO Jody] Monahan when Montiel took leave of absence, or claim some other air-conditioned truck assigned to another ECO. Finally, there is no evidence that Cuadra, herself a Latina, harbored any animus toward Montiel because he was Mexican.”
Against this impressive reasoning, Montiel merely reiterates the assertion that he “presented substantial, credible undisputed evidence that he was denied use of such vehicle on account of his Mexican national origin. Reasons given by the City for its refusal of Montiel’s use of an air conditioned vehicle are patently untrustworthy, unworthy of belief, and merely a pretext for discrimination as reflected in the substantial credible evidence presented by Montiel.”
This is patently inadequate to establish error. This appears to be one of those situations where a minor change in practice or routine that is merely displeasing to an employee, or may be perceived as personally humiliating, is insufficient to demonstrate an adverse employment action. (Yanowitz, supra, 36 Cal.4th 1028, 1053-1054; McRae, supra, 142 Cal.App.4th 377, 386, 393.)
The third incident may be almost summarily resolved. Monteil argues that the termination of his health benefits in October 2003 was proof of discriminatory animus. Yet the City presented uncontradicted evidence that the termination was due to Montiel’s failure to pay the premiums when he was out on leave. Not only was this not an adverse employment action by the City, it was no action at all by the City.
In his statement of disputed facts Montiel did identify three incidents within the limitations period that were not addressed by Judge Busch. Montiel characterizes them in his opening brief as follows:
“On May 10, 2003, Supervisor Arevalo called Montiel over the radio (which all employees could hear) and informed Montiel that he had been instructed to tell Montiel that it was DPW policy not to talk on the cell phone while driving, even though others routinely used their cell phones while driving.
“On May 13, 2003 Supervisor II Cuadra ordered Montiel back to the office at which time she told him that the meeting was about Montiel using his cell phone while driving, although others were not subjected to such conduct
“After returning to work in October, 2003, after a work related injury suffered in June 2003, Montiel called Supervisor Monahan to report his inability to report to work the next day because of illness, she chastise[d] him for doing so even though such had always been the common practice.”
The May incidents are obviously covered by our discussion of the verbal counseling Montiel received for violating the DPW policy against cell phone use while driving a City vehicle. Again, there is no allegation that official action was taken, still less that such action amounted to an adverse employment decision. The same is true for the October “chastisement.”
Our independent review leads us to conclude that there was no material issue of disputed fact preventing entry of summary adjudication in favor of the City. Montiel failed to establish a prima facie case because none of his claimed instances of discrimination entailed an adverse employment action. Individually and collectively, the purported incidents of discrimination lacked the objective power to impair Montiel’s reasonable prospects as a City employee. (See Yanowitz, supra, 36 Cal.4th 1028, 1053-1054; McRae, supra, 142 Cal.App.4th 377, 386; Thomas v. Department of Corrections, supra, 77 Cal.App.4th 507, 510-511.) In addition, all of the instances were supported by a legitimate nondiscriminatory reason, which Montiel failed to establish as pretextual. The City was therefore entitled to summary adjudication on the discrimination claim. (Yanowitz, supra, at p. 1042; Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th 121, 129.)
Summary Adjudication of Montiel’s Retaliation Cause of Action Was Appropriate
Montiel’s arguments against the grant of summary adjudication on his harassment claim cover the same incidents as his discrimination claim. As shown in the preceding discussion, none of those incidents amounted to an adverse employment action, and each had the support of a legitimate nondiscriminatory reason. As the existence of such an action is an essential element of a harassment claim (Yanowitz, supra, 36 Cal.4th 1028, 1042), Montiel’s claim necessarily fails. Again, the City was entitled to summary adjudication. (Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th 121, 129.)
Montiel’s theory was that the City was retaliating against him because since 2001 he had been protesting the City’s “unlawful discriminatory employment practices against African American employees.”
Montiel Fails To Demonstrate Error In The Granting Of The City’s In Limine Motions
As previously noted, Montiel’s harassment claims survived summary adjudication and proceeded to trial. The City filed a number of in limine motions, Numbers 3 and 4 of which sought to limit Montiel’s ability to present evidence concerning events outside the limitations period of Montiel’s harassment cause of action. Those motions were among the topics that figured in extensive pretrial discussions on January 29 and 30, 2007.
Montiel makes two contentions concerning these motions. To obviate any possibility of mischaracterization, we set forth the contentions, in their entirety, as advanced in Montiel’s opening brief:
“The Superior Court clearly erred in limiting evidence supporting Montiel’s claims of harassment on account of his race, color and national origin to evidence of the actions and conduct of Jody Monahan.
“The superior court clearly erred in excluding the voluminous credible probative evidence detailed in arguments 1 and 2 above relative to Montiel’s claim of harassment on account of his Mexican national origin from the jury’s consideration of his claim for harassment on account of his Mexican national origin in violation of Government Code section 12940[, subdivision (j)].
“Such evidence which the jury was not allowed to hear was critical to Montiel’s claim of racial harassment.
“The exclusion of such evidence is clearly reversible error.
“The jury’s 9-3 finding that said harassment was not so severe, widespread, or persistent that a reasonable person of Hispanic descent or Mexican ancestry in Montiel’s circumstances would have considered the work environment to be hostile or abusive, should be set aside in view of the superior court’s erroneous excluding substantial, credible probative evidence other than that relating to the actions and conduct of Jody Monahan
“The jury’s 9-3 finding that said harassment was not so severe, widespread, or persistent that a reasonable person of Hispanic descent or Mexican ancestry in Montiel’s circumstances would have considered the work environment to be hostile or abusive, should be set aside in view of the superior court’s erroneous excluding substantial, credible probative evidence other than that relating to the actions and conduct of Jody Monahan.
“It is clear that if the jury had been allowed to hear the substantial credible evidence of racial animus as outlined in arguments 1 and 2 above, it could have rendered a final verdict in favor of Montiel, finding that said harassment was severe, widespread, or persistent that a reasonable person of Hispanic descent or Mexican ancestry in Montiel’s circumstances would have considered the work environment to be hostile or abusive.”
These arguments fail for several reasons.
First, contrary to the implicit predicate of both contentions, the record does not establish that the trial court ever actually granted the City’s motions. As previously noted, the record does not include a reporter’s transcript of the actual trial, only the pretrial discussions of January 29 and 30. And those transcripts show that the court never went beyond expressing a tentative inclination to grant the motions. Thus, at the end of the January 29 session the court stated: “I am going to think about the motions in limine 3 and 4. I have expressed my view, tentative view, already, which you both have, and that is that it appears that a lot of this is not relevant to the claim of racial harassment. But I’ll consider it again and take another look based upon what I have heard today from both sides.”
On January 30, after listening to Montiel’s counsel describe what “we will put on evidence to show,” the court replied: “Well, that depends on my ruling. [¶] . . . [¶] I haven’t made a final ruling . . . .” And at the end of the January 30 session, counsel for the City reminded the court “I don’t know when your Honor intends to actually rule specifically on the last couple of motions in limine that are at issue, but we would request, if possible, to have such a ruling before the opening statement . . . .” The court replied: “I’m going to hopefully take a look today and should have a decision for you on that. I’ve indicated my tentative, but I wanted to look at everything again.” That is all we have.
The record references cited in Montiel’s reply brief are not to the contrary.
A tentative ruling is not a final ruling. (See Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633; In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 794.) Thus, there is no conclusive determination, and consequently nothing for us to review. “No [final] ruling was made below. Accordingly, no review can be conducted here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.] . . . That is the rule. No exception is available.” (People v. Rowland (1992) 4 Cal.4th 238, 259.)
Second, Montiel presents no reasoned argument, with appropriate citations to the record, demonstrating how such a ruling—if it was made—would qualify as prejudicial error. His contentions are therefore deemed waived. (In re S.C. (2006) 138 Cal.App.4th 396, 407; Harding v. Harding (2002) 99 Cal.App.4th 626, 635; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523; Cal. Rules of Court, rule 8.204(1)(B).)
Third, it is somewhat surprising that Montiel makes no mention of Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the case which governs the circumstances under which evidence of events outside the statute of limitations period may sometimes be admissible in FEHA-based actions. Richards was not cited by Montiel in opposition to the City’s motion, and it is absent from the brief he filed for this appeal. Without Richards, what argument there is in Montiel’s brief does not persuade us that it would have been error to have granted the City’s in limine motions. Indeed, Montiel’s reference at oral argument to the evidence at “pages 40 and 46” of his opening brief only confirms this point, citing, as it does, evidence outside the limitations period.
Although Richards dealt with application of the so-called “continuous violation” principle to a harassment claim, the Supreme Court subsequently indicated that “Nothing in Richards . . . limited application of these principles to only harassment claims, rather than discrimination or retaliation claims.” (Yanowitz, supra, 36 Cal.4th 1028, 1057.)
“Error is never presumed” (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 326), but must be demonstrated by the appealing party on the basis of an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) The only record Montiel has provided does not substantiate his contentions that a claimed error actually occurred. Moreover, in the absence of a reporter’s transcript of the trial, he cannot demonstrate that if the claimed error did occur, it was prejudicial to him.
DISPOSITION
The purported appeal from the summary adjudication orders is dismissed. The judgment is affirmed. The City shall recover its costs on appeal.
We concur: Kline, P.J., Lambden, J.