Opinion
B319657
12-08-2023
HOANG A. NGUYEN, Plaintiff and Appellant, v. DAVID GUMAER, Defendant and Respondent.
The Blue Law Group and Michael K. Blue for Plaintiff and Appellant. Lozano Smith, Mark K. Kitabayashi and Eleanor M. Welke for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC696016 Steven J. Kleifield, Judge.
The Blue Law Group and Michael K. Blue for Plaintiff and Appellant.
Lozano Smith, Mark K. Kitabayashi and Eleanor M. Welke for Defendant and Respondent.
RUBIN, P. J.
Hoang Nguyen, a retired employee of the City of Los Angeles (City), filed suit against the City and two of his supervisors, alleging racial discrimination and a hostile work environment under various theories of liability. The trial court granted summary judgment to David Gumaer, one of the defendant supervisors. We affirm the judgment.
FACTS
From 1981 to 2020, Nguyen worked for the City's Bureau of Sanitation as a wastewater treatment operator, primarily at the City's Terminal Island facility. During the relevant time period, Sam Pallares was Nguyen's immediate supervisor. Pallares reported to defendant Gumaer, who was the Chief Plant Operator at the facility.
On November 15, 2017, and January 22, 2018, Nguyen filed complaints of employment discrimination with the Department of Fair Employment and Housing (DFEH). Nguyen complained of conduct by both Gumaer and Pallares. We describe in greater detail his allegations against Gumaer below. As to Pallares, Nguyen alleged Pallares instructed Nguyen on at least two occasions to enter the men's restroom and count the quantity of feces Pallares had deposited into the toilet. Nguyen also claimed Pallares instructed Nguyen to massage his feet in the employee breakroom.
On March 1, 2018, after receiving a right to sue letter and exhausting other administrative remedies, Nguyen filed a complaint against the City, Gumaer, and Pallares in superior court. After several rounds of demurrers and amendments to the complaint, Nguyen alleged four causes of action against Gumaer in a fourth amended complaint: (1) hostile work environment harassment in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12940, subd. (j)); (2) intentional infliction of emotional distress; (3) violation of the Ralph Civil Rights Act of 1976 (Civ. Code, § 51.7); and (4) violation of the Bane Civil Rights Act (Civ. Code, § 52.1).
The City and Pallares are not a part of this appeal.
Gumaer moved for summary judgment. As to the FEHA claim, Gumaer argued most of the complained-of events occurred outside the one-year statute of limitations period and the continuing violation doctrine did not apply to toll the running of the statute of limitations. For events occurring within the limitations period, Gumaer argued they did not constitute actionable harassment as a matter of law. Nor could Nguyen establish his causes of action for intentional infliction of emotional distress and for violations of the Bane Act and the Ralph Act as a matter of law.
In his opposition to the motion, Nguyen asserted that, for each cause of action, Gumaer's conduct was racially motivated and the continuing violation doctrine applied. He submitted his declaration setting out the following incidents involving Gumaer.
1. Vietnam War Comments
Sometime in 2015, approximately two years before Nguyen's first DFEH complaint, Gumaer told Nguyen about his military service during the Vietnam War. Nguyen recalled Gumaer "proceeded to state about how he used to kill my people and how he used to hang them upside down and slaughter them like a deer." Nguyen, who is Vietnamese and lived through the war as a child, "became extremely frightened, shaken, and was intimidated by Gumaer ...." He complained about Gumaer's remarks to the City. Some months later, Gumaer told Nguyen's brother that Gumaer shot a Vietnamese soldier for stealing his boots. Nguyen was not present during Gumaer's conversation with Nguyen's brother but later learned of the conversation.
2. Shift Scheduling Issue
During Nguyen's tenure at the facility, wastewater treatment operators worked three shifts: (1) the day shift (6:30 a.m. to 2:30 p.m.); (2) the swing shift (2:30 p.m. to 10:30 p.m.), and the graveyard shift (10:30 p.m. to 6:30 a.m.). Shifts were also differentiated by the days the employee had off; not every employee avoided weekend work. If there was an opening for a particular shift, the City accepted "bids" from existing employees to fill that opening with the shift generally awarded to the employee with the longest tenure. In December 2016, Nguyen bid on and was awarded a vacant swing shift with Saturdays and Sundays off. Nguyen was not actually assigned to work that shift until June 25, 2018, over a year later after Gumaer retired.
3. Additional Harassment
Nguyen alleged that when he complained about his work schedule and the failure to schedule him for the new shift, Gumaer and Pallares subjected him to increased scrutiny, further harassment, and demeaning tasks. On June 12, 2017, Gumaer called Nguyen to his office and told Nguyen he had been "sneaking around" to watch what Nguyen was doing. During that conversation, Gumaer also ordered Nguyen to shave his facial hair even though it was within the department's one-inch length requirement and "many" Caucasian employees had much longer and thicker facial hair. Gumaer badgered Nguyen about his facial hair on two other occasions.
After Nguyen submitted a complaint to Gumaer's superior, Gumaer and Pallares began assigning Nguyen "housekeeping" tasks, including hosing down a tank, sweeping the floor, and cleaning. According to Nguyen, these tasks were humiliating for someone with over 35 years of experience as a wastewater treatment supervisor.
4. Karate Comment in Counseling Session
On July 11, 2017, Gumaer and Nguyen engaged in a counseling session that was prompted by Nguyen's complaint to Gumaer's superior. According to Nguyen, Gumaer told Nguyen he would use a prior incident from 1997 to discredit Nguyen and to discipline him if he did not retract his complaint to Gumaer's supervisor. Gumaer also advised Nguyen to stand up for himself by using his black belt in karate to address Pallares's harassing conduct.
In a memorandum to his superior regarding the counseling session, Gumaer recounted that he asked Nguyen "how it was that he could be so fearful when at the same time he could maintain the mental discipline necessary to achieve a black belt in Karate." Nguyen admitted he knew martial arts but denied he had a black belt in karate.
5. Confrontation in Meeting
Nguyen filed complaints with the DFEH in 2017 and 2018. In early 2018 during a staff meeting, Gumaer brought up the fact that someone had filed an employment complaint. Nguyen observed Gumaer look furiously at him and ask, "do you have anything to say!?"
The trial court granted summary judgment in favor of Gumaer. Although the court found there was "no question" the Vietnam War comments could constitute harassment, it was undisputed a DFEH complaint was not filed within one year of those statements. The court refused to apply the continuing violation doctrine to bring the incident within the statute of limitations. For that doctrine to apply, Nguyen was required to show related acts of race or national origin harassment within one year of the DFEH complaint. The court declined to view the karate statement as harassment because it was not severe or pervasive. Thus, the court found there was no continuing harassment that would allow it to consider the Vietnam War statements under the continuing violation doctrine. The court rejected Nguyen's argument that any type of untoward (but not harassing) conduct by Gumaer would be suspect, no matter whether there was any contemporaneous evidence of discriminatory animus. It reasoned that consideration of the Vietnam War statements under these circumstances would render the one-year limitations period essentially meaningless. The court found the additional complained-of acts (i.e., Gumaer's order to Nguyen to shave and the confrontation at the meeting) were race neutral on their face and were not related acts.
Before 2020, FEHA required litigants to file an administrative complaint with the DFEH within "one year from the date upon which the alleged unlawful practice . . . occurred...." (Former Gov. Code, § 12960, subd. (d).) Current section 12960, subdivision (e) enlarges the time for filing a DFEH claim to three years from the date of the challenged conduct. (Brome v. Dept. of the California Highway Patrol (2020) 44 Cal.App.5th 786, 793, fn. 2.) Because Nguyen filed his complaint to the DFEH in 2017, Gumaer's 2015 Vietnam War comments fell outside the then one-year limitations period. Nguyen does not contend that the three year statute of limitations applies to his claims. Under the continuing violation doctrine, "an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.)
The court likewise found no disputed issue of material fact that Gumaer's conduct was not extreme and outrageous enough to overcome summary adjudication of the intentional infliction of emotional distress cause of action. It dispensed with Nguyen's claims under the Ralph Act and Bane Act, concluding Nguyen failed to provide admissible evidence of violence or threats of violence required by those statutes.
Judgment was entered in favor of Gumaer, and Nguyen timely appealed.
DISCUSSION
On appeal, Nguyen argues the trial court committed reversible error when it summarily adjudicated the four causes of action he alleged against Gumaer: (1) violation of FEHA, (2) intentional infliction of emotional distress, (3) violation of the Ralph Act, and (4) violation of the Bane Act. We begin with the standard of review.
1. Standard of Review
"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) . . . The moving party bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case....'" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 (Miller).) "[O]nce a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....'" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
"On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (Miller, supra, 36 Cal.4th at p. 460.)
2. Nguyen's Hostile Work Environment Claim Under FEHA
In his opening brief, Nguyen characterizes Gumaer's suggestion that Nguyen use his black belt in karate to stand up to Pallares as an "ethnic slur." The karate comment, he claims, coupled with the other alleged racially neutral but harassing conduct (i.e., shift scheduling issues, facial hair comments, comments about sneaking around, housekeeping assignments, and confrontation in a meeting), form the basis for Nguyen's hostile work environment claim on appeal. Relying on Government Code section 12923 and Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30 (Dee), Nguyen argues one racially motivated comment coupled with multiple acts of race-neutral harassment are sufficient to create a triable issue of fact whether he suffered a hostile work environment in violation of FEHA. Gumaer counters that, standing alone or combined with the alleged race-neutral conduct, Gumaer's karate comment was insufficiently severe or pervasive to create a racially hostile work environment.
Nguyen argued below that the continuing violation doctrine bootstrapped Gumaer's Vietnam War comments into the limitations period. It appears Nguyen has abandoned the continuing violation argument on appeal. He does not mention the doctrine in his opening brief and a reply brief was not filed. Although Gumaer may not be liable for his Vietnam War comments, the remarks may nevertheless be admissible as relevant background evidence. (United Air Lines, Inc. v. Evans (1977) 431 U.S. 553, 558 ["A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences."]; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 .) Gumaer does not contest the admissibility of his Vietnam War comments.
A. Governing Legal Principles
FEHA prohibits harassment because of race, national origin, or ancestry, among other enumerated characteristics. (Gov. Code, § 12940, subd. (j).) An employee claiming racially motivated harassment based upon a hostile work environment theory must demonstrate that the conduct complained of is sufficiently severe or pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their race. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 278-279 (Lyle).)
"Harassment includes' "epithets, derogatory comments or slurs...."' '' (Dee, supra, 106 Cal.App.4th at p. 35.) To determine whether workplace harassment rises to the level of a FEHA violation, a court must look to all the circumstances, which " 'may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" (Miller, supra, 36 Cal.4th at p. 462; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.)" 'The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.'" (Lyle, supra, 38 Cal.4th at p. 283.)
"[C]ourts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." (Lyle, supra, 38 Cal.4th at p. 283.) In Lyle, our Supreme Court explained, "when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions." (Ibid.) The hostile work environment must be both objectively and subjectively offensive. (Id. at p. 284.) The objective component must be assessed from the" 'perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.'" (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-264.) "That means a plaintiff who subjectively perceives the workplace as hostile and abusive will not prevail under the FEHA, if a reasonable person in the plaintiff's position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so." (Lyle, supra, at p. 284.)
B. Nguyen Has Failed to Raise a Triable Issue of Fact That Gumaer's Conduct Was Sufficiently Severe or Pervasive
Here, Nguyen has failed to raise a triable issue of material fact that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of his employment and create a work environment that qualifies as hostile or abusive to employees because of their race, national origin, or ancestry. The entirety of Nguyen's racially hostile work environment claim that falls within the statute of limitations rests on (1) one comment suggesting Nguyen rely on his black belt in karate to "take care" of Pallares, and (2) race-neutral conduct, including shift scheduling issues, orders to shave, comments about sneaking around to watch Nguyen, demeaning housekeeping assignments, and a confrontation in a meeting.
The karate comment, standing alone, is insufficient to demonstrate a triable issue exists as to a hostile work environment. It was not objectively severe - it was not a racial epithet, nor was it physically threatening or humiliating to Nguyen. (Cf. Hughes v. Pair (2009) 46 Cal.4th 1035, 104 ["A single harassing incident involving 'physical violence or the threat thereof' may qualify as being severe in the extreme"]; Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 877 [finding severe conduct that "falls somewhere between forcible rape and the mere utterance of an epithet"].)
California courts frequently seek guidance from federal decisions when interpreting FEHA because of the similarities between the federal and California statutory schemes regarding workplace harassment. (Lyle, supra, 38 Cal.4th at p. 278.)
Nor was the comment sufficiently pervasive; it is undisputed the comment was made only once. Even if we consider the karate comment within the context of Gumaer's alleged Vietnam War comment - as deplorable and unacceptable in a civilized workplace as it was - two isolated comments occurring over three years (2015 to 2017) cannot be characterized as pervasive under these circumstances. (See Long v. Ford Motor Co. (6th Cir.2006) 193 Fed.Appx. 497, 502 [harassment in two discrete instances, including being called "wetback" and "Puerto Rican spic," although "utterly deplorable," were not severe or pervasive enough to establish a prima facie case]; Manatt v. Bank of Am. (9th Cir. 2003) 339 F.3d 792, 798 [two "regrettable" incidents occurring over two and a half years in which several employees pulled their eyes back and mocked the Asian plaintiff's pronunciation of an English word, along with offhand comments by other employees, did not alter conditions of the plaintiff's employment]; Kortan v. California Youth Auth. (9th Cir.2000) 217 F.3d 1104, 1110-1111 [plaintiff could not show her supervisor's conduct was frequent, severe, or abusive enough to interfere unreasonably with her employment where he occasionally directed sexual insults at other female employees in her presence and where his offensive conduct toward her was concentrated in one occasion following a work dispute].)
Adding the "facially race neutral" conduct to the mix does not change our conclusion. Nguyen contends the shift scheduling issues, the confrontation in the meeting, the demeaning housekeeping assignments, and the other harassing comments made by Gumaer can be inferred to be racially motivated under Dee. Dee is distinguishable.
In Dee, the Court of Appeal reversed summary judgment entered in favor of the employer, concluding that the supervisor's lone ethnic slur, combined with other evidence of abuse, raised a triable issue of fact as to whether the employer had created a hostile work environment due to national origin discrimination. (Dee, supra, 106 Cal.App.4th at pp. 35, 37.) The plaintiff's supervisor "called her a 'bitch' and 'constantly' used the word 'asshole.' He berated her, 'harassed' her, ordered her to lie and blamed her for tasks he ordered her to perform." (Id. at p. 37.) When the plaintiff complained about being asked to lie, the supervisor told the plaintiff that" 'it is your Filipino understanding versus mine.'" (Ibid.)
The Court of Appeal concluded the "Filipino understanding" comment was "an ethnic slur, both abusive and hostile." (Dee, supra, at p. 37.) The evidence supported a reasonable inference that "the racial slur was not an isolated event" and that the supervisor "wished to intimidate [the plaintiff] so that she would not complain to higher management about his conduct." (Ibid.) Based upon the totality of the circumstances, the court concluded a reasonable trier of fact could infer the racial slur was evidence of a discriminatory animus toward Filipinos. (Ibid.)
Here Gumaer's karate comment was not part of a continuation of other serious abuse that would create a dispute of material fact as to Gumaer's discriminatory animus toward Asian or Vietnamese people. While arguably out of line, the karate comment was not abusive or hostile. Nor was it evidence of Gumaer's racial motivation to engage in the other harassing conduct. The complained-of conduct, including shift scheduling issues, orders to shave, comments about sneaking around to watch Nguyen, assigning housekeeping assignments that Nyugen considered demeaning, and a confrontation in a meeting, falls short of "constantly" using the term asshole, calling an employee a bitch, unfairly blaming her for doing assigned tasks, or ordering her to lie. Based on the totality of the circumstances, we agree with the trial court that Nguyen has not raised a dispute of material fact as to the existence of a hostile work environment under FEHA.
Lastly, Nguyen's reliance on Government Code section 12923 is misplaced. Subdivision (b) of that section states "a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." Subdivision (e) of that section also provides, "Harassment cases are rarely appropriate for disposition on summary judgment." The single-incident cases we have cited in the preceding paragraph are consistent with subdivisions (b) and (e) of Government Code section 12923, which do not prohibit summary judgment in all single-incident cases. The conduct described by Nguyen does not approach the same level of harassment or interference with an employee's work performance as described in the single-incident cases cited.
3. The Intentional Infliction of Emotional Distress Claim
Nguyen next contends the trial court erred in summarily adjudicating his intentional infliction of emotional distress (IIED) claim "for much of the same reasons" it erred in rejecting his FEHA hostile work environment claim. Nguyen argues the same facts and legal authorities underlying his FEHA claim support his IIED claim. In short, Nguyen asserts his IIED claim stands and falls with his FEHA claim. We accept Nguyen's position and rely on the same reasoning, set out in our earlier discussion, to conclude Nguyen has failed to demonstrate a triable issue on his IIED claim. (See Hughes v. Pair, supra, 46 Cal.4th at p. 1051 ["Liability for intentional infliction of emotional distress' "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities"' "].)
Nguyen makes no effort to discuss the elements of an IIED claim, which are:"' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." '" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Nor does he demonstrate how he has created a triable issue of material fact that Gamuer's conduct was" 'so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Ibid.)
4. The Ralph Act and Bane Act Claims
Nguyen's claims under the Ralph Act and Bane Act rest on Gumaer's comments that Nguyen should use karate to stand up to Pallares and that Gumaer was sneaking around watching Nguyen. According to Nguyen, these comments fall within both statutes because a reasonable inference may be made that violence was the only way for Nguyen to secure a harassment-free work environment. We disagree.
Both the Ralph Act and the Bane Act were enacted to address hate crimes in California. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 845-847 (Venegas).)
The Ralph Act provides that all persons "have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property" because of the person's race or national origin, among other characteristics. (Civ. Code, § 51.7, subd. (a).)
"The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., 'threats, intimidation, or coercion'), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law." (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883; Civ. Code, § 52.1, subds. (a)-(c).) A violation of the Bane Act does not require any discriminatory animus. (Venegas, supra, 32 Cal.4th at p. 843.) A person aggrieved by a violation of the Ralph Act or Bane Act may bring a private action against the perpetrator. (Civ. Code, § 52.1, subds. (b), (c).)
Here, Nguyen has failed to set out evidence that Gumaer committed any act of violence or threatened violence against Nguyen, as required by the Ralph Act. Indeed, the karate comment did not involve a threat of violence against Nguyen - if violence would have been inferred it would have been against Pallares. Nguyen likewise fails to demonstrate any threat, intimidation, or coercion against him, as required by the Bane Act. Nor does he identify on appeal what constitutional or statutory rights Gumaer interfered with by threats, intimidation, or coercion.
DISPOSITION
The judgment is affirmed. Gumaer to recover his costs on appeal.
WE CONCUR: MOOR, J., KIM, J.