Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC321873, William F. Fahey, Judge. Affirmed.
Irell & Manella, Henry Shields, Jr., Melissa R. McCormick and David A. Ryan for Defendants and Respondents.
W. Ruel Walker, Timothy D. McGonigle and Robert M. Silverman for Plaintiffs and Appellants.
ALDRICH, J.
INTRODUCTION
Christopher Nance was terminated from his position as an on-air weatherman at KNBC for repeatedly violating company policy against sexual harassment. He and Christopher Productions, Inc. (together Nance) brought the instant action against his former employer National Broadcasting Company, Inc., KNBC-TV, NBC Subsidiary (KNBC-TV), Inc., and his general manager, Paula Madison (together defendants) seeking damages for wrongful termination on the ground defendants discriminated against him because of his race, religion, and illness. Defendants successfully moved for summary judgment. We hold that the trial court did not abuse its discretion in granting a protective order precluding Nance’s discovery of the personnel files of two NBC employees. We further hold that defendants carried their burden to proffer a legitimate, nondiscriminatory reason for Nance’s discharge. In opposing summary judgment, Nance was unable to demonstrate a dispute or to present substantive evidence that raises a rational inference that the true cause of defendants’ action was intentional and unlawful discrimination. The trial court properly granted summary judgment as a matter of law. Accordingly, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual history
Viewing the submissions as we are required to do (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769), they show that defendants hired Nance as an on-air weatherman in June 1985 to appear on both the weekend news and the 4:00 p.m. broadcasts from Wednesday through Friday. In 1987, Nance was reassigned to the “Today in L.A.” weekday morning show, where he remained as weatherman until he was discharged in December 2002.
The NBC Personnel Policies and Instructions Manual defines harassment and lists as examples of inappropriate conduct that could pose potential personal risk and create liability for NBC, among other things, “asking for dates, or making sexual advances, where it is clear, or becomes clear, that the overture is unwelcome; [¶] threatening or engaging in reprisals or retaliation after such an overture is rejected; [¶] . . . [¶] making inappropriate verbal statements, such as sexually suggestive jokes, derogatory or sexually degrading comments, epithets and slurs, or comments about an individual’s body or appearance; [¶] . . . [¶] inappropriate physical conduct, such as unwanted touching, impeding or blocking another person’s movements, leering or sexual gestures . . . .”
a. The 1999 incident and warnings issued to Nance
In the fall of 1999, a female technical director on the morning show complained that Nance made inappropriate sexual and racial comments and insulting and mean-spirited remarks towards her. She complained that Nance called her a “ ‘cunt, ’ ” and had inappropriate physical contact with her.
Barbara Lackman, NBC’s Vice President, Employment Counsel, investigated the complaints. Lackman and Nancy Bauer, the then News Director, interviewed the female technical director and other morning show employees. They met with Nance and his agent to give Nance an opportunity to respond to the allegations. During that meeting, Nance called Lackman a “parasite.” He admitted, among other things, (1) calling the female technical director a “ ‘cunt;’ ” (2) referring to a male morning anchor as a “ ‘bonehead’ ” and a “ ‘buckethead;’ ” (3) making jokes about employees; (4) throwing a box at another employee at NBC; and (5) threatening the manager of on-air and studio operations when he overheard Nance making jokes and asked him to stop his conduct. Nance stated at the meeting that he did not believe the word “cunt” was inappropriate because the dictionary definition of that term accurately described the technical director.
Lackman told Nance that his admitted conduct was inappropriate and that he should view the meeting “as a loud wake up call.” She gave Nance an oral warning that his behavior must change. Lackman also told Nance that he was not to retaliate against anyone for participating in the investigation as it was against both the law and NBC policy.
Thereafter, Bauer issued a written warning in a sealed envelope to Nance based solely on the sexual and racial comments that he admitted he made, admitted were inappropriate, and acknowledged offended the recipients. The warning stated that should Nance engage in further misconduct or retaliate against anyone involved in the investigation, he would be subject to further discipline up to and including termination from employment.
Madison, who had previously served as Vice President and News Director of WNBC in New York, became President and General Manager of KNBC in November 2000. Madison is African-American. One of her roles was to chair the NBC Diversity Council, which council was created to ensure that NBC effectively implemented its diversity policies. Madison reviewed the employee files of key personnel at the station, including Nance. Madison met with Nance to discuss his previous behavior and written warning. Madison told Nance that the 1999 incidents were disturbing to her, but that she wanted to give him the benefit of the doubt because the incidents had occurred before she arrived. Still, Madison reiterated that any harassing or mean-spirited comments must cease and he must work as a team with the technical director and the morning show crew.
b. The 2001 incident and additional warnings given to Nance
In March 2001, the same technical director complained that Nance was still acting inappropriately towards her. Madison and Lackman met with Nance on March 30, 2001, to hear his side of the story. Nance stated various reasons why he believed the technical director’s complaint was not well-founded. During that meeting, Nance insulted the Human Resources Department and Lackman. He told Madison and Lackman that he had never opened the envelope containing the 1999 written warning. He stated he had no intention of ever reading that warning. In Madison’s view, Nance’s refusal to read the 1999 warning was troubling and demonstrated a complete disregard for NBC’s and KNBC’s policies and procedures, and an unacceptable lack of respect for management. On April 5, 2001, Madison issued an oral warning to both Nance and the female technical director that she would not tolerate unprofessional or harassing behavior, and that they could both suffer discipline or termination if they did not resolve their conflict.
In June 2001, Nance and defendants entered into a new contract, extending Nance’s employment.
c. The 2002 incidents and Nance’s warnings
In April 2002, moments before taping a weather segment and with knowledge that his voice was being recorded, Nance stated: “ ‘[L]et’s do this one for all the pedophiles out there.’ ” Nance’s remark was inadvertently broadcast as part of the weather segment. The remark was made during intense media coverage in Southern California of a child’s murder. Madison orally reprimanded Nance, telling him that even though he had not intended for the statement to be broadcast, it was inappropriate and contrary to defendants’ policies to make such a crude and insensitive remark in front of the crew and staff, particularly in light of the ongoing media attention to the murder.
In August 2002, KNBC’s Director of Human Resources, Jose Andino, told Madison that a 20-year-old Asian female intern had complained to him that Nance had engaged in sexual misconduct and repeatedly pursued her romantically despite her rejections of his advances. Madison told Andino to investigate the intern’s complaints.
The next day, Andino called Madison at home to report that he had the intern on the other line. Andino said the intern was frightened because Nance was following her in his car. Madison told Andino that he should tell the intern to drive to the KNBC station, that he should wait outside for her to arrive, and that he should escort her into the station, but not allow Nance into the building. Andino later told Madison, that when the intern arrived, Andino saw that Nance was following her in his car but did not stop.
KNBC hired Lori Bowman, then partner in charge of employment practice in the Los Angeles office of Orrick, Herrington & Sutcliffe, LLP, to investigate the intern’s complaints. During her investigation, Bowman interviewed an Asian male producer, an Hispanic news anchor, a Caucasian female news anchor, an Asian female producer, Nance’s wife, and others. She also held three separate meetings with Nance and his representatives in which she went over the allegations and gave him the opportunity to respond. Bowman also asked Nance whether there were any other people that she should interview. Nance did not give Bowman any other names.
Thereafter, Bowman prepared a 22-page chart listing the allegations of the intern and other employees she had interviewed, and recording Nance’s responses to each allegation. The report concluded that Nance engaged in numerous comments and acts that were sexually provocative or racist, offensive or inappropriate, including comments to women or about women’s body parts, clothing, looks, and what he would do with these women sexually (such as stating he wanted to “do” one female news reporter while she was “reading the scriptures”), and attempting to kiss some women. Bowman reviewed with Nance every allegation listed in the report and asked for his response. He admitted that the responses attributed to him in the report accurately reflected what he told Bowman.
Based on Bowman’s report, Madison concluded that Nance had engaged in nearly all of the alleged conduct. Madison determined that much of the conduct constituted oral comments of a sexual nature that violated the harassment policies articulated in both the company’s Manual.
On September 19, 2002, Madison sent Nance a memorandum entitled “Inappropriate Conduct: Final Warning.” Therein, Madison described the results of Bowman’s investigation into Nance’s offensive and inappropriate conduct. Madison also listed the numerous oral and written warnings Nance had already received. Madison suspended Nance without pay from September 20 to 27 and required him to undergo and satisfactorily complete one-on-one sensitivity and harassment training, as well as to attend meetings and cooperate fully with a company-appointed employee assistance consultant, to study the enclosed copy of the company policy against harassment, and to comply with the policies and practices communicated to him. The memorandum concluded, “please understand that this memorandum constitutes a final warning to you. If you engage in any future inappropriate conduct, including without limitation conduct of a religious, sexual or racial nature, make any mean-spirited comments about your co-workers, or retaliate against anyone involved in this investigation, you will be terminated.” (Italics added.)
Nance went on suspension. Two months after his return, Kimberly Godwin, the then KNBC news director learned that an Asian female editorial assistant was thinking about requesting a transfer out of the morning shift to avoid Nance’s sexually suggestive conduct and comments.
Tracy Rich, the Senior Managing Counsel of NBC’s West Coast Law Department, conducted an investigation. Rich interviewed the complaining editorial assistant, another Asian female editorial assistant, and an Asian female morning producer. Rich concluded that all three women described incidents in which Nance made inappropriate sexual comments and advances and two of the women cried while recounting the events. The women expressed concern about the effect their allegations against Nance might have on their careers. Rich gave her investigative reports summarizing her meetings to Madison.
Rich, Andino, and Godwin attempted to meet with Nance to give him an opportunity to respond to the allegations. Instead of meeting with them, Nance left on a two-week vacation. Finally, Rich and Andino met with Nance and his attorneys on December 23, 2002. At first, Nance denied knowing the morning producer and the first editorial assistant. Later he did admit knowing them. He denied all the allegations. Nance stated his belief that a female news anchor on the morning show had encouraged all three women to lie, but Rich found Nance could provide no rational reason for her to have done so. Based on this investigation, Rich reported to Madison that she found the three women to be credible while Nance was neither honest nor forthcoming. She found that Nance had made all of the inappropriate statements described during the interviews.
Madison reviewed Rich’s report and found that Nance’s harassing conduct constituted egregious violations of harassment policies articulated in both the KNBC Manual and NBC Personnel Policy Manual. She found it notable that over a period of three years, five different investigators (Bauer, Lackman, Bowman, Andino, and Rich) had separately found that Nance engaged in lewd and harassing conduct. The repeated warnings given Nance had not affected his conduct. In her view, Nance had purposefully and repeatedly ignored express directives from management that he change his conduct and attitude. Based on Nance’s disciplinary history, his expressed disdain for people in supervisory positions, his repeated flouting of KNBC’s and NBC’s harassment policies, and his dishonesty in the final investigation, Madison concluded that Nance’s inappropriate conduct and harassment could no longer be tolerated at KNBC and that he must be terminated from employment. Madison declared that she did not discharge Nance because of his race, religious practices, or his illness.
Madison terminated Nance from employment on December 27, 2002.
2. Procedural history
Nance’s complaint ensued. After successful demurrers, his operative complaint alleged causes of action for wrongful termination in violation of public policy, breach of contract, breach of third-party-beneficiary contract, and unlawful business practices in violation of the Business and Professions Code section 17200 et seq. or the Unfair Competition Law (the UCL). After the trial court dismissed Nance’s emotional distress cause of action -- the only allegations against Madison -- it dismissed her from the case.
Defendants answered the complaint by generally denying each of the allegations and setting forth as one of their 26 affirmative defenses that they had good cause for the adverse action against Nance, including a legitimate and reasonable belief that Nance violated company policies. Defendants then moved for summary judgment on the ground that Nance could not demonstrate that defendants’ legitimate, nondiscriminatory reason for their actions against Nance was pretextual.
Nance opposed the summary judgment arguing that defendants claimed reason for terminating Nance from employment was pretextual and untrue. Nance’s opposition relied mainly on his later-filed declaration. The trial court sustained most of defendants’ 254 evidentiary objections to that declaration on the grounds of lack of foundation, failure to authenticate, improper argument, and irrelevance but chose nonetheless to read Nance’s declaration in its entirety and to consider those assertions that were based on percipient knowledge. The court also sustained objections to Nance’s exhibits A, C, and E, on the grounds of hearsay and improper authentication. Finally, the court struck Nance’s statement of additional material facts for failure to comply with California Rules of Court, rule 342(h) (currently rule 3.1350). Thereafter, the court granted defendants’ motion. Nance does not challenge the evidentiary rulings, with the result they stand. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Nance filed his notice of appeal, which we deem to be timely.
CONTENTIONS
Nance contends that the trial court erred in (1) granting defendants’ motions for protective orders precluding the deposition of certain of their employees and (2) granting defendants’ summary judgment motion.
DISCUSSION
1. The protective order
Nance contends that the trial court erred in granting protective orders precluding (1) the deposition of an employee we shall call “E-2” and (2) the production of four categories of employment records relating to a former employee whom Nance refers to as “E-1.” Defendants sought a protective order to prevent the disclosure of these employees’ personnel files on the grounds of privacy and relevance. (Cal Const., art. l, § 1.) The trial court granted defendants’ motion on three grounds: (1) Nance’s opposition to the motion was filed late; (2) Nance presented an insufficient foundation -- “ ‘information and belief’ ” and hearsay -- for the discovery; and (3) the conduct allegedly engaged in “by other . . . employees . . . is not substantially similar to that which [Nance] is accused of so as to outweigh the witnesses’ privacy rights.”
Nance does not challenge the trial court’s order precluding other discovery that he had sought contemporaneously with E-2’s deposition and E-1’s employment records.
Discovery rulings made by the trial court are reviewed under the abuse of discretion standard. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1286-1287.) Under this standard, “it is not the function of an appellate court to substitute its own view as to the proper decision. Rather, an abuse of discretion by the trial court must be shown -- action which is arbitrary or capricious or without any basis in reason [citations]” (Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893), or when “the court exceeds the bounds of reason, all of the circumstances before it being considered.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) The trial court did not abuse its discretion here.
Apart from whether Nance’s opposition was timely, we considered it. Therein, Nance asserted that discovery into E-2’s and E-1’s conduct was “relevant to prove that though . . . other employees have engaged in similar misconduct, they have not been terminated nor have they received equivalent disciplinary action” and so, Nance argued, defendants’ stated reason for Nance’s discharge was pretextual.
We note that neither employee whose discovery Nance seeks here is a party to this lawsuit. “In ordinary civil litigation, a plaintiff’s need for information will not easily override a third party’s privacy rights. [Citations.]” (Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, 363.) The discovery Nance seeks must be sufficiently relevant to overcome E-2’s and E-1’s privacy rights. (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346.) “ ‘[D]iscovery of confidential information in personnel files, even when such information is directly relevant to litigation, . . . will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate. [Citation.] And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumspection of the scope of the disclosure. [Citation.]’ [Citation.]” (Ibid.)
In addition to showing sufficient relevance, Nance must demonstrate that he and E-1 and E-2 are similarly situated. “A showing that the [employer] treated similarly situated employees outside [the plaintiff’s] protected class more favorably would be probative of pretext.” (Vasquez v. County of Los Angeles (2003) 349 F.3d 634, 641, fn. omitted.) “[I]ndividuals are similarly situated when they have similar jobs and display similar conduct” but not when they have not engaged in conduct of comparable seriousness to that of the plaintiff. (Ibid., fn. omitted.) “The critical question is whether the plaintiff and the other employee are similarly situated in ‘all material aspects.’ [Citation.] For instance, an employee on an assembly line who physically assaults a co-worker is similarly situated to a supervisor who engages in similar conduct. A worker in the sales department who steals company property is similarly situated to one who works in customer service and commits the same act. The ultimate question that is informed by the similarly situated analysis is whether there is a basis for inferring discriminatory motive: Does the purported purpose of the challenged action require similar treatment of the two employees or does it justify different treatment due to differences in their status or situation rather than race?” (Bowden v. Potter (2004) 308 F.Supp.2d 1108, 1117.)
Turning to Nance’s showing, he testified in his deposition that he heard gossip -- because he was not present -- that E-2 made a pass at a female intern. Not only is this proffered foundation hearsay and insufficient justification for intruding upon E-2’s privacy (Fults v. Superior Court (1979) 88 Cal.App.3d 899, 905), but even if it were true, under no conceivable analysis could E-2 -- by this single isolated act -- be similarly situated to Nance who engaged in a fully-documented, three-year pattern of harassing numerous employees, and received four oral and two written warnings and a suspension before being terminated from employment.
E-1’s situation is even more attenuated. Nance sought that employee’s entire personnel file because Nance’s attorney had “information and belief” that this employee “fondl[ed] women at the workplace, ” and “several women made complaints about [this] conduct” but “no action was taken.” However, E-1 was not an employee of KNBC and had retired nearly three years before KNBC discharged Nance and nearly a year before Madison arrived at KNBC. E-1 and Nance are simply not similarly situated. Therefore, the trial court did not abuse its discretion in granting defendants’ motion for protective order because Nance’s grounds for the discovery were inadequate, and the employees whose personnel files he sought were not similarly situated to Nance to justify invasion of their privacy.
2. Summary judgment standard of review
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Thus, summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing there is no merit to a cause of action if that party shows that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or as to a defense to that cause of action. (Aguilar v. Atlantic Richfield Co., supra, at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.
On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.) We “review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We construe the moving party’s affidavits and declaration strictly, and the opposing party’s evidence liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Castillo v. Express Escrow Co. (2007) 146 Cal.App.4th 1301, 1306.)
a. Wrongful termination in violation of public policy
With particular reference to discrimination claims, California courts have adopted a “three-stage burden-shifting test established by the United States Supreme Court . . . .” articulated in Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 354. Thereunder, the plaintiff-employee sets forth sufficient evidence to establish a prima facie case of discrimination. (Id. at pp. 354-356.) Generally, to do so, the employee must show that he was: (1) a member of a protected class, (2) qualified for and was performing competently in the position he held, (3) suffered an adverse employment action, such as termination, and (4) the person who replaced him was not a member of a protected class or some other circumstance suggesting discriminatory motive. (See id. at p. 355.)
When the employer moves for summary judgment, it must present evidence of a non-discriminatory reason for the adverse employment action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) Once the employer makes that showing, the burden shifts to the employee to avoid summary judgment by offering “ ‘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.’ [Citations.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)
Nance alleged that his termination from employment violated public policy because it was “proximately caused by Defendants’ discrimination based on . . . race, religion, and disability.” He alleged that other employees who were non-minority or non-practicing Christians, or who did not make complaints to management, were retained in the job and not subjected to the same discriminatory termination. Even if Nance could demonstrate a prima facie case of discrimination as required by Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pages 355-357, a showing we do not think he made, his cause of action cannot withstand summary judgment.
Defendants met their burden to demonstrate a legitimate, nondiscriminatory reason for Nance’s termination from employment. Defendants demonstrated that the decision to discharge Nance was based on numerous systematic and extensive investigations of many complaints and reports over the course of three years that Nance engaged in repeated and significant sexual harassment of many employees in violation of NBC’s and KNBC’s policy manuals. The investigations were exhaustive and gave Nance an opportunity to respond and name witnesses who could speak on his behalf. Madison, who was charged with ensuring that defendants effectively implemented their diversity policies, reviewed the reports from six separate investigations, conducted by five individual investigators, of numerous specific complaints and many general reports of Nance’s conduct in the three-year time frame. Based on Nance’s admissions during those investigations, and on the findings in the reports, coupled with Nance’s overt distain for management, and his failure to alter his behavior despite at least four oral and two written warnings and a suspension, Madison determined that Nance’s conduct could not be tolerated at KNBC. The evidence shows in particular, that Nance’s conduct directly violated numerous prohibitions in the NBC Personnel Policy Manual and Instructions, and that the manual prescribes discipline, up to and including, termination for those who are found to have engaged in conduct in violation of the Manual. His actions also demonstrated a blatant disregard for management and clearly exposed defendants to liability.
Such a showing, made by competent and admissible evidence (Code Civ. Proc., § 437c, subd. (d)), is legally sufficient to establish that defendants had a legitimate business reason for their decision that was “facially unrelated to prohibited bias”(Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358), as it had nothing to do with Nance’s race, religion, or illness. In any event, Nance acknowledges that defendants carried their burden here.
The burden then shifted to Nance “to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination” on prohibited grounds, “was the true cause of the employer’s actions. [Citation.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 357, 361.)
To survive summary judgment, Nance was obligated to provide evidence that placed defendants’ “creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [defendants] acted for discriminatory purposes. [Citation.]” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 362.) He must show more than that “the employer’s decision was wrong, mistaken, or unwise.” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) Nance “ ‘ “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence, ’ [citation], and hence infer ‘that the employer did not act for the [. . . asserted] non-discriminatory reasons.’ [Citations.]” [Citations.]’ [Citation.]” (Ibid.)
Nance has not carried his burden. Nance’s evidence of pretext falls into three categories. He asserted that (1) others at KNBC, who were not African-American, committed similar transgressions and were not disciplined; (2) Madison was biased against him; and (3) two of the investigations were procedurally deficient.
Nance’s evidence on the first point is insubstantial. Much of his evidence is contained in his declaration and is based on his or his attorneys’ information and belief. However, mere belief that others were not disciplined for similar transgressions is simply insufficient to give rise to the permissible inference that defendants discharged him because of discriminatory animus. (Kwon v. Kaiser Hosp. (N.D.Cal. Jan. 14, 1999, C97-0770 FMS) 1999 WL 16342, at p. *7.) Nance also cites Madison’s deposition in which she stated that Nance told her about another employee asking a female anchor to perform oral sex on him. Supposedly, that employee was not disciplined. Even if true, a single transgression scarcely compares materially to Nance’s consistent and well-documented repeated pattern of harassment over three years. (Vasquez v. County of Los Angeles, supra, 349 F.3d at p. 641.) Moreover, such conduct allegedly occurred before Madison arrived at KNBC with the result that that employee would not have been subjected to discipline by Madison.
Unpublished federal cases are “ ‘citable notwithstanding California Rules of Court, rule [8.1115], which only bars citation of unpublished California opinions.’ [Citations.]” (Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6; but see, U.S. Cir. Ct. Rules (9th Cir.), rule 36-3(a) & (b).)
Nance also claimed that another employee engaged in inappropriate conduct but was not investigated. It appears that the trial court ruled that the employee to which Nance is referring in this argument was not similarly situated to Nance and Nance did not challenge that ruling. Therefore, Nance’s argument with respect to this employee is unavailing.
Turning to Nance’s claim that Madison was biased again him, Madison was both the person who decided to fire Nance and who had decided two years earlier to renew his contract. “[W]hen the allegedly discriminatory actor is someone who has previously selected the plaintiff for favorable treatment, that is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail.” (Coghlan v. American Seafoods Co. LLC (9th Cir. 2005) 413 F.3d 1090, 1096, fn. 10, italics added.) As evidence of Madison’s bias against Nance, he cites to an occasion in which Madison told him that it was not “ ‘politically correct’ ” to read his Bible at work. However, a single, isolated comment not tied directly to Nance’s termination is insufficient to
Although Nance declared that Madison and Lackman were biased against him, he admitted in his deposition that he had no basis for that claim other than that it was something he “felt.” A feeling of discrimination does not create doubts about defendant’s legitimate reason. (See Kwon v. Kaiser Hosp., supra, 1999 WL 16342, at p. *7 [plaintiff’s mere belief that others were treated less severely for similar transgressions is not enough to create doubts about employer’s legitimate reason for discharge].)
create an inference of discrimination based on improper motives. (Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919.) The single religious-based remark is insufficient evidence of discriminatory animus (Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 801), especially where the one uttering the remark is not only a Christian herself, but someone who had previously renewed Nance’s contract. (Coghlan v. American Seafoods Co. LLC, supra, at p. 1096, fn. 10.)
Nance also claims that Madison admitted she made up her mind to discharge him before he had been interviewed or given a chance to explain his side of the latest accusations against him in the fall of 2002. However, the trial court ruled that the exhibit upon which Nance relies for this point was hearsay and not properly authenticated. Nance did not appeal from that ruling and cannot rely on that evidence. (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 476.)
With respect to Nance’s procedural challenges to Bowman’s investigation in his effort to show pretext, he asserts that he told Bowman to interview a woman who allegedly would exonerate him, but that she did not. He also asserts that Bowman failed to give him a list of allegations against him with the result he was unable to respond to them. However, at his deposition, Nance conceded that when Bowman asked for names, he gave her none. Likewise, Nance testified in his deposition that Bowman prepared a report listing the intern’s allegations along with those of other employees she had interviewed, reviewed every allegation listed in the report with him, and asked for his response. Nance’s declaration in opposition to the motion for summary judgment contradicted his own deposition testimony on both of these points. A trial court may properly exclude declarations of a party submitted in opposition to a motion for summary judgment, if those declarations contradict admissions of that party previously given in a deposition. (Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390, 398, fn. 2, overruled on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)
Finally, Nance challenged Rich’s investigation to show pretext. He argues that the three women who complained about Nance in the final investigation lied about him because they wanted job transfers. He argues that Rich’s investigation report is not credible because it “falsely states” that Nance did not offer any reasons why the women might have lied. In point of fact, Rich did not state that Nance provided no explanation for why the three women might lie; Rich stated that Nance “offered no legitimate reason why any of these women would fabricate the charges.” (Italics added.) The report is not inconsistent.
To summarize, defendants presented their legitimate, non-discriminatory reason for firing Nance. For his part, Nance offered no actual evidence that shows defendants’ explanation for his termination was pretext or to raise a rational inference that the true cause of his termination from employment was intentional discrimination. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 357, 361.) The trial court properly granted summary adjudication of this cause of action.
As he appears to admit on appeal, Nance’s UCL and two contract causes of action are predicated on the discrimination cause of action. As analyzed above, the court properly granted summary adjudication of the cause of action for discriminatory wrongful termination. Consequently, the trial court properly granted summary adjudication of the UCL and contract causes of action. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions waived when they are not supported with reasoned argument and citations to authority]; see also, Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 178 [where causes of action are incidental to and depend upon the validity of the preceding claims for relief, fate of preceding claims applies to incidental causes of action].)
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.