Opinion
B159475
7-24-2003
PAMELA PORTER, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA et al., Defendants and Respondents.
Michael J. Melton for Plaintiff and Appellant. Paul, Hastings, Janofsky & Walker and J. Al Latham, Jr., Stephen L. Berry and Christina L. McEnerney for Defendants and Respondents.
Pamela Porter appeals the judgment entered in this action for employment discrimination and wrongful termination after the trial court granted summary judgment in favor of both Porters employer, the University of Southern California (USC), and her supervisor, Michael Jackson. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
Porter was employed by USC as the director of the Center for Black Cultural and Student Affairs (CBCSA) from 1981 to 1999. Michael Jackson, vice-president of student affairs, was Porters supervisor from July 1995 until Porters employment was terminated June 30, 1999. Both Porter and Jackson are African-Americans. At the time her employment with USC terminated, Porter was 50 years old and was replaced by a younger African-American woman.
Although USC disputes that Porter was terminated, claiming she voluntarily resigned in accordance with a severance/settlement agreement, it concedes the issue of termination for purposes of this summary judgment motion.
2. The Complaint
Porter sued USC and Jackson, asserting causes of action for age, race and sex discrimination, retaliation and sexual harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12940, subds. (a), (f) & (h), 12941), wage discrimination (Lab. Code, § 1197.5) and wrongful termination. Porter alleged she was fired because of her age, race and sex, and in retaliation for her advocating on behalf of African-American faculty members and rebuffing Jacksons sexual advances. Porter also alleged she was denied similar salary and employment benefits provided to similarly qualified USC employees who were not African-American women.
The cause of action for sexual harassment was asserted against both Jackson and USC. The FEHA, wage discrimination and wrongful termination claims were asserted solely against USC. In her second amended complaint, the operative pleading, Porter also asserted causes of action for civil rights violations, negligence, intentional infliction of emotional distress and breach of the covenant of good faith and fair dealing. Those causes of action are not at issue in this appeal.
3. The Summary Judgment Motion
USC and Jackson moved for summary judgment, or alternatively, for summary adjudication. The evidence presented in connection with the motion established that, when Porter was hired in 1981, USCs employee handbook did not contain any provision concerning at-will employment. In 1987 the handbook was changed to state: "Employment at the University is with the mutual consent of the employee and employer and either party may terminate the relationship at will." At her deposition Porter testified she knew the employee manual had been changed in 1987 to provide for at-will employment and understood that policy applied to her. Porter also conceded in her deposition that, at the time she was hired, no promises were made to her concerning how long she could expect to be employed at USC.
Although Porter received satisfactory performance reviews from Jackson during her annual employment reviews in March 1997 and March 1998, their relationship deteriorated in April 1998 when Jackson instructed Porter to collaborate with Layne Bordenave, the director of USCs Office of Black Alumni Programs, on a two-year plan to improve services to African-American students and alumni. Jackson specifically instructed Porter to keep discussions concerning the collaboration between the two departments confidential until specific objectives could be outlined. Porter, who had declared her opposition to Jacksons ideas and the proposed collaboration, told alumni and students about the plan in an effort to incite protest. Jackson issued a written reprimand to Porter, criticizing her direct violation of his instructions and warning her of further disciplinary action if his instructions were not followed.
According to Jackson, Porter continued to resist his leadership and ideas for the CBCSA. On August 4, 1998, following a meeting with Porter and Bordenave, Jackson concluded a successful collaboration between the CBCSA and the Office of Black Alumni Programs was impossible under Porters direction. Deciding that Porter needed to be replaced, in August 1998 Jackson presented Porter with a formal severance agreement, which required her resignation. There is no evidence Porter ever signed the agreement.
On June 11, 1999 Porter filed a complaint with the Department of Fair Employment and Housing (DFEH) accusing Jackson and USC of race, age and sex discrimination and retaliation. About the same time, Porter filed a complaint with USC in accordance with its written grievance procedures. According to Porter, USC refused to pursue her grievance, advising her the matter had been resolved in a binding settlement agreement, even though Porter asserted she had never signed the agreement.
After being placed on involuntarily administrative leave sometime in 1999, Porters employment was terminated effective June 30, 1999. Jackson testified that, at the time he terminated Porters employment, he believed a signed settlement/severance agreement was in place under which Porter had agreed to resign no later than June 30, 1999. Jackson declared, however, that the settlement agreement was not the reason he decided to discharge Porter and that he would have terminated her employment effective June 30, 1999 (the end of the fiscal year) in any event because of his conclusions, reached in August 1998, about her opposition to his goals for the CBCSA. Corliss Bennett, an African-American woman who Porter estimates is approximately 20 years younger than she, replaced Porter as the director of the CBCSA. Unlike Porter, Bennett does not have a doctorate.
On August 4, 1999 Porter amended her DFEH complaint to include an allegation of sexual harassment against Jackson. At her deposition Porter testified that, during the time she and Jackson worked together, Jackson made inappropriate comments about her clothes and hair and frequently brushed against her leg under the table with his stocking feet. Porter admitted the inappropriate comments had ceased when she stopped coloring her hair, which was some time prior to June 1, 1998. Porter also testified that, due to her efforts to avoid sitting near Jackson, the inappropriate touching had ceased by the summer of 1996.
In November 1998 Porter learned that Abel Amaya, a Latino who was the director of El Centro Chicano, a Chicano student services center at USC, was paid $ 12,000 more a year in salary than she even though Amaya did not have a doctorate. With its summary judgment motion USC presented evidence, undisputed by Porter, that Amaya had two years more seniority than Porter, more experience directing student centers when he was hired (Amaya had been the director of a Latino center at Colorado State University before coming to USC; Porter had never directed a students services unit before accepting the position at USC) and had received uniformly better performance evaluations than Porter throughout his tenure at USC. In addition, although Porter had received satisfactory performance reviews while at USC, several supervisors in addition to Jackson had criticized her attitude and noted her disrespectful behavior toward supervisors and colleagues.
Porter testified that USC administrators had become hostile toward her ever since she wrote a letter to University Provost Lloyd Armstrong in 1994 accusing the former director of admissions for USC, Joe Allen, of racism. Porter later formally withdrew the accusation after Armstrong criticized her for refusing to meet him to discuss the charges. Prior to or at about the same time, Porter wrote letters to university president Steven Sample and other USC administrators complaining of the reduction in the number of African-American faculty members. Porter admitted at her deposition that she had no information that Armstrong, Sample or any of the university administrators to whom her letters were directed had been involved in the decision to terminate her employment. Porter also admitted that she was in possession of no facts demonstrating that Jacksons decision to terminate her was based on age, race or sex other than the fact that she was a 50-year-old African-American woman who was replaced by a significantly younger woman.
Jackson testified that more than two-thirds of the employees under his supervision were women and that several were older than Porter and had been promoted during his tenure at USC.
In opposition to USCs motion, Porter offered her declaration in which she testified that, contrary to her deposition testimony, the sexual harassing conduct of Jackson (comments about her attire and hair and inappropriate touching of her leg under a conference table) continued until November 1998. Porter also stated that, contrary to her deposition testimony, she had always believed, based on representations to her made by unidentified USC personnel, that she could only be terminated for cause. To account for the inconsistencies in her testimony, Porter explained that she had been under stress at the time of her deposition due to her fathers terminal illness, that her father had died on the last day of her deposition and that, because of the stress related to his death, she did not have time to review the transcript of her testimony and make necessary corrections.
Each day of her deposition, Porter was asked whether there was any reason she could not give "her best, most truthful and accurate testimony." Porter replied that she was able to proceed and to give her best, most truthful and accurate testimony notwithstanding the illness of her father.
According to Porter, when Bordenave was hired in 1997, Jackson began assigning projects to Bordenave for which she had previously been responsible. When Jackson asked Porter to work with Bordenave, Porter tried to comply, but Bordenave refused to provide Porter with information necessary to complete a collaboration document. Porter felt Bordenaves skills were inferior and that the collaboration effort suffered because of Bordenaves incomplete work, yet Jackson blamed Porter for any problems. Porter believed Jackson preferred Bordenave to her. When Jackson met with Porter in the fall of 1998 and presented her with the proposed severance agreement requiring her resignation, he did not advise Porter that his decision was performance-related. Jackson never told Porter the grounds for her termination.
After ruling on the parties objections to the evidence submitted in connection with the motion and disregarding those portions of Porters declaration that conflicted with her prior deposition testimony, the trial court granted summary judgment in favor of Jackson and USC. Following USCs voluntary dismissal of its cross-complaint, the court entered judgment in favor of Jackson and USC. Porter filed a timely notice of appeal.
CONTENTIONS
Porter contends triable issues of material fact exist as to her claims for sexual harassment, race, age and sex discrimination, retaliation and wrongful termination.
DISCUSSION
1. Standard of Review
The standard of review on appeal after an order granting summary judgment is well settled. "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 957 P.2d 1313.) In the trial court, once 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 . . . . (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)" (Merrill v. Navegar ,Inc. (2001) 26 Cal.4th 465, 476-477.)
In reviewing the evidence we strictly construe the moving partys evidence and liberally construe the opposing partys and accept as undisputed only those portions of the moving partys evidence that are uncontradicted. "Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. Any doubts about the propriety of summary judgment . . . are generally resolved against granting the motion, because that allows the future development of the case and avoids errors. [Citation.]" (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)
2. Porters Sexual Harassment Claim Under FEHA Is Barred Because
Porter Did Not File Her DFEH Complaint Within One Year of the Date Offending Conduct Concluded
The statute of limitations for FEHA actions provides: "No complaint may be filed [with the DFEH] 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).); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 814.) The failure to file a timely complaint with the DFEH is a bar to any civil action under FEHA. (Romano v. Rockwell Internat .,Inc. (1996) 14 Cal.4th 479, 492, 926 P.2d 1114; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63.) At her deposition Porter conceded the sexually harassing conduct had ceased by June 1, 1998. Because Porter did not file a complaint with the DFEH until June 11, 1999 (and did not include a sexual harassment allegation until August 4, 1999), more than one year after the offending conduct had ceased, her action is time barred. (Gov. Code, § 12960, subd. (d); Romano, at p. 492.)
The statute provides certain exceptions, none of which is at issue in this appeal. (See Gov. Code, § 12960, subd. (d).)
To salvage her claim, Porter argues the trial court should have credited her declaration testimony that the harassment continued until November 1998, within the statute of limitations period. Because Porters declaration offered in opposition to the summary judgment directly conflicted with her deposition testimony, the trial court did not abuse its discretion in disregarding the conflicting parts of her declaration. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, 112 Cal. Rptr. 786, 520 P.2d 10; Barton v. Elexsys Intern.,Inc. (1998) 62 Cal.App.4th 1182, 1191 [" Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.")
Porter also asserts, without supporting authority, the one-year limitations period was equitably tolled during the period Porter was negotiating a severance package with USC. The theory of equitable tolling has been applied to "relieve[] a plaintiff from the bar of a limitations statute when, possessing several legal remedies, he [or she] reasonably and in good faith, pursues one designed to lessen the extent of his [or her] injuries or damage" and the defendant has had timely notice of the claim and is not prejudiced by application of the doctrine. (Addison v. State of California (1978) 21 Cal.3d 313, 317, 319, 146 Cal. Rptr. 224, 578 P.2d 941 [limitations period under state tort claims act tolled during pendency of federal action]; Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 107-108, 165 Cal. Rptr. 100, 611 P.2d 441 [two-year statute of limitations to recover wages under Labor Code section 1197.5 tolled by plaintiffs filing of federal wage discrimination claim]; Elkins v. Derby (1974) 12 Cal.3d 410, 412, 115 Cal. Rptr. 641, 525 P.2d 81 [personal injury action tolled while plaintiff pursued workers compensation remedy].)
Porter cites no authority to support the proposition that FEHA claims are equitably tolled during an employees negotiations with an employer regarding a potential severance package or, even more generally, that severance negotiations are the type of formal parallel legal or administrative proceedings encompassed by the doctrine of equitable tolling. Although Porter does not raise the related argument of equitable estoppel, we nonetheless observe that Porter presented no evidence USC did anything to induce her forbearance in filing a DFEH complaint. Accordingly, on this record the trial court properly held the sexual harassment claim is barred. (Gov. Code, § 12960.)
3. Summary Adjudication of Porters Claims for Race, Sex and Age Discrimination Was Proper
a.Governing law
Porter claims she was terminated because of her race, age and sex in violation of FEHA. Discriminatory intent is a necessary element of each of Porters disparate treatment claims. (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662; Mixon v. Fair Employment & Housing Com. (1987) 192 Cal. App. 3d 1306, 1316, 237 Cal. Rptr. 884.) Because direct evidence of such intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 for trying discrimination claims based on a theory of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
"At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. . . . [P] The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide 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 . . . and (4) some other circumstance suggests discriminatory motive. [Citations, fn. omitted.] [P] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. . . . [P] Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise[] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [P] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] . . . . [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Guz , supra, 24 Cal.4th at pp. 354-356.)
b. Porter failed to raise a triable issue of fact on her discrimination claims
In moving for summary judgment, USC affirmatively argued, based on specific passages from Porters deposition transcript, that Porter could not establish a prima facie case for discrimination. Alternatively, USC argued that, even if a prima facie case could be established, there was a nondiscriminatory business reason for the decision to terminate Porter, namely, that she was hostile to Jacksons objectives for the CBCSA.
In challenging the summary judgment Porter insists she established a prima facie case for race, age and sex discrimination under FEHA. Porter claims membership in three protected classes (age, race and sex); contends she was terminated even though she was qualified to perform her job and had received satisfactory reviews throughout her tenure at USC; and asserts that she was replaced by a significantly younger woman (age discrimination) and that a male director of a different student services organization was paid a higher salary even though he did not have Porters educational credentials (sex discrimination).
i. Although Porter established a prima facie case for age discrimination, she failed to state a prima facie case for race or sex discrimination relating to the termination of her employment
Porter correctly asserts that evidence she was replaced in her position by a significantly younger woman raises a logical inference of discrimination based on age sufficient to establish a prima facie case for age discrimination. (Guz, supra, 24 Cal.4th at p. 366; see also OConnor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, 313 [116 S. Ct. 1307, 134 L. Ed. 2d 433] [logical inference of age discrimination may arise in claim under federal Age Discrimination In Employment Act (ADEA) where replacement is "significantly younger" than plaintiff].) Porters race and sex discrimination claims, however, are a different matter. Porter submitted no evidence, other than her own declared perception, that her termination was motivated by her race or her sex. Absent at least some competent evidence from which a discriminatory motive can be reasonably inferred, Porter is unable to make even the minimal threshold showing necessary to establish a prima facie case for race or sex discrimination. (See, e.g., Guz, supra, 24 Cal.4th at p. 355 [to demonstrate prima facie case, plaintiff must demonstrate not only that she was in a protected class and suffered an adverse employment decision, but also some evidence suggesting discriminatory motive].)
ii. Porter failed to provide any evidence to rebut USCs proffered nondiscriminatory reason for her termination
Even assuming Porter could establish a prima facie case for each of her discrimination claims, summary judgment was proper because Porter provided no evidence to rebut USCs proffered business reasons for her termination. In an effort to excuse this failure, Porter argues that, once she established a prima facie case, she was under no obligation to provide any evidence to rebut USCs nondiscriminatory reasons. The law is to the contrary: Once USC offered a legitimate nondiscriminatory business reason for its decision, the presumption of discrimination created by Porters prima facie case disappeared; and it was Porters burden in opposing summary judgment to provide some evidence of discriminatory intent. To do this, Porter was required to present "substantial responsive evidence that the employers showing was untrue or pretextual." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Guz, supra, 24 Cal.4th at p. 356.) "An employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory." (Guz , at p. 361.)
Porter asserts she did present some evidence, in the form of her own declaration, that prior to her termination the collaboration envisioned by Jackson between the CBCSA and the Office of Black Alumni Programs had been rejected by several interest groups, and the project deferred. Porter argues this evidence raises a triable issue of fact as to whether Jacksons proffered reasons for her termination, namely, her hostility to his objectives for the CBCSA and the collaboration with the Office of Black Alumni Programs, were pretextual. Porters argument and the evidence upon which it relies would have some merit if Jacksons decision to terminate Porter was made after the collaboration had been shelved; but Jackson testified, and Porter agreed, that Jackson had disclosed to Porter in the fall of 1998 that he had decided to terminate her. It was only due to negotiations over a severance package that Porters termination was not finalized until June 30, 1999. Porter herself conceded that she disliked working with Bordenave, that they did not collaborate well and that she did not share Jacksons objectives for the CBCSA. Any slight inference of discrimination raised by the ultimate deferral of the collaboration effort in 1999, therefore was insufficient for a trier of fact to find, more likely than not, that USCs proffered business reason for terminating Porters employment was a pretext for discrimination. (See Guz, supra, 24 Cal.4th at p. 362 [summary judgment proper where circumstantial evidence of discrimination, even if sufficient to establish a prima facie case, is "too weak to raise a rational inference that discrimination occurred."].)
Porter also argues that Jacksons explanation for terminating Porter — that she had signed a severance agreement — was incredible, particularly in light of her testimony that she never signed the agreement. According to Porter, this was sufficient to raise a question of fact as to whether Jacksons reasons were untrue or a pretext for race, age, and/or sex discrimination. However, contrary to the premise of Porters argument, Jackson did not state that his reasons for the termination were based on a signed settlement agreement. Rather, Jackson noted that he believed a settlement agreement was in place but declared that the motivation for the termination (and severance agreement) was Porters lack of cooperation and shared vision for the objectives of the CBCSA. Porter provided no substantial evidence for a rational trier of fact to find, more likely than not, that Jacksons proffered reason was actually a pretext for intentional race, age and/or sex discrimination.
iii. Porters claims for wage discrimination under both FEHA and Labor Code section 1197.5 also fail because Porter failed to raise a triable issue of fact that any pay differential between her and Amaya was based on sex
Porter also bases her sex discrimination claim on allegations that she was paid $ 12,000 a year less than Amaya, the male director of USCs Chicano student services center. USC submitted evidence that it paid Amaya more because he had more seniority, greater experience and received uniformly better performance reviews throughout his employment at USC. Porter made no effort to rebut any of that evidence. Nor did Porter offer any evidence to show that she and Amaya had engaged in similar work, supervised a similar number of people or had similar responsibilities.
The only evidence Porter offered in her declaration that she and Amaya were similarly situated was her statement that,"[Amayas] two years of prior work experience is equivalent to [Porters] Ph.D. and does not equate with all of [her] other work experience, so it is fair to state that [she and Amaya] should have been receiving the same rate of pay [because their] qualifications and duties were essentially the same, and certainly comparable." The trial court sustained Jacksons and USCs objections to this statement. Because Porter does not assert the courts ruling was in error, we consider such evidence to have been properly excluded and not part of the record on appeal. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) Other than the excluded testimony, Porter offered no evidence to demonstrate she and Amaya were similarly situated.
Relying on Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735 (Heard), Porter suggests it was not her burden to demonstrate that she and Amaya were similarly situated. In Heard the court explained that a plaintiff need not prove similarly situated employees outside the protected class received more favorable treatment to establish a prima face case of discrimination, provided other evidence raised an inference of discriminatory motive. (See id. at p. 1755 ["Although proof regarding similarly situated employees outside the protected class may be one way of raising an inference of intentional discrimination, it is not the only way."].) Here, however, Porters only asserted basis for discrimination is the fact that Amaya received a higher salary than she did.
In order for a salary differential, standing alone, to raise an inference of discrimination, Porter was required to provide some evidence that she and Amaya were similarly situated. (See, e.g., Bullock v. Childrens Hosp. of Philadelphia (E.D. Pa 1999) 71 F. Supp. 2d 482, 489 [when employee seeks to prove discrimination by comparing himself to those with whom he alleges he is "similarly situated," he must show " the individuals with whom [he] seeks to be compared . . . "engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employers treatment of them for it.""].) Porters failure to provide any evidence that the salary differential was based on something other than the legitimate business reasons proffered by USC is fatal to her sex discrimination claim to the extent it is based on the asserted wage differential. (See, e.g., Stanley v. University of Southern California (9th Cir. 1999) 178 F.3d 1069, 1077 [summary judgment in favor of university proper where plaintiff, a female basketball coach, failed to rebut universitys explanation that the pay differential between her and male basketball coach was based on male basketball coachs greater coaching experience].)
Federal cases interpreting title VII are persuasive authority for interpreting FEHA. (Guz, supra, 24 Cal.4th at p. 354.)
Porters wage discrimination claim under the California Equal Pay Act suffers from a similar absence of evidence. Labor Code section 1197.5, subdivision (a) prohibits employers from paying wage rates "less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex." (Lab. Code, § 1197.5, subd. (a), italics added.) Having failed to raise a reasonable inference that the differential between Amayas and her own salaries was based on anything other than legitimate, nondiscriminatory factors, Porters claims for sex discrimination and violation of the Equal Pay Act were properly resolved against her on summary judgment.
4. The Trial Court Did Not Err in Resolving Porters Retaliation Claim Against Her
FEHA makes it unlawful "for any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint . . . under this [Act]." (Gov. Code, § 12940, subd. (h).) To establish a prima facie case of retaliation, a plaintiff must show that he or she engaged in a protected activity, that the employer subjected him or her to adverse employment action, and there is a causal link between the protected activity and the employers action. (Fisher v. San Pedro Penninsula Hospital (1989) 214 Cal. App. 3d 590, 614, 262 Cal. Rptr. 842 (Fisher); Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814.) "The causal link may be established by an inference derived from circumstantial evidence, "such as the employers knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision." [Citations.]" (Fisher , at p. 615.)
Porter contends a triable issue of fact exists as to whether her termination was in retaliation for her charge of racism against the former director of admissions in 1994, as well as for unspecified complaints she made on behalf of unidentified African-American students and faculty members. Because Porters complaints all apparently occurred years before her termination, these actions were too attenuated to permit an inference of the requisite causal link between the protected action and the alleged retaliatory conduct — the termination. (See, e.g., Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 273 [121 S. Ct. 1508, 149 L. Ed. 2d 509] [where adverse employment decision occurred 20 months after employee filed her administrative complaint, summary adjudication of retaliation claim in favor of employer proper because no "causal link" established between plaintiffs filing of her complaint and adverse employment decision as a matter of law]); Fisher,supra, 214 Cal. App. 3d at p. 615 [retaliatory motive and causal link established if retaliatory action in close proximity to protected conduct].)
In any event, Porter directed her advocacy to Provost Armstrong and President Sample. There is no evidence from which a jury could infer that Jackson, hired after the specified complaints, knew about them and disapproved of them or that Armstrong and/or Sample were in any way involved in Jacksons decision to terminate Porters employment. (Cf. Morgan v. Regents of the University of California, supra, 88 Cal.App.4th at p. 70 [it is the state of mind of the decision maker that is relevant to establish retaliatory motive; statements of employees who played no role in adverse employment decision insufficient to establish retaliatory motive].) Accordingly, the trial court properly concluded that, based on all the evidence presented in connection with the motion for summary judgment, Porters retaliation claim failed as a matter of law.
Porter does not argue on appeal that a triable issue of fact exists as to whether she was terminated in retaliation for having rebuffed Jacksons sexual advances. Accordingly, we are not called upon to consider whether the alleged sexual harassment, which ceased one year before her termination, was sufficiently "close in time" to her termination to satisfy the "causal link" requirement.
5. Porters Claim for Wrongful Termination in Breach of an Implied Contract Was Properly Resolved Against Her Because the Undisputed Evidence Established She Was an At-Will Employee
Porter claims the court erred in summarily adjudicating her claim for wrongful termination in breach of an implied contract to terminate only for cause. She asserts that, notwithstanding the at-will provision in the employee handbook, a triable issue of fact exists as to whether Porter was an at-will employee.
The inclusion of an at-will provision in an employee personnel manual, although indicative of the employers intent to create an at-will employment, is not dispositive of that issue and may be overcome by other evidence of an employers contrary intent, including other portions of the employee manual suggesting a limitation on the employers right to terminate employment. (Guz ,supra, 24 Cal.4th at pp. 340-342.) The question, involving one of implied contract, turns on the objectively reasonable understanding of the parties. (Id. at p. 340.) In the employment context, the issue is whether the employers words or conduct "was intended[] and reasonably understood[] to create binding limits on the employers statutory right to terminate the relationship at will." (Ibid. )
Porter asserts the inclusion of a grievance procedure in the employee handbook contradicted the at-will provision and, at a minimum, created a triable issue of material fact as to whether an implied-in-fact contract existed limiting USCs right to terminate Porter at will. Contrary to Porters contention, nothing in the availability of an internal grievance procedure, or in its description in the employee handbook, is inconsistent with USCs declared intent of at-will employment. As described in the handbook, the purpose of the procedure is to resolve job-related problems without the necessity of outside forums.
The employee is not obligated to utilize the procedure nor does anything in the procedure itself suggest a limitation on the employers right to terminate at-will.
The employee handbook provides: "Employee Grievances [P] A. PURPOSE: [P] To establish a procedure for solving job-related problems internally. Grievances may include those arising under Civil Rights Act, title IX (sex discrimination), section 504 (discrimination on the basis of handicap), and other state and federal laws." "Employees who use the Staff Grievance procedure do not give up their rights to file complaints with other legal forums."
More significantly, by her own admission, Porter did not rely on the grievance procedures set forth in the manual as indicative of a promise not to terminate but for cause. Indeed, Porter conceded she knew of USCs at-will employment policy and believed that policy was in effect for at least the last 11 years of her employment.
Because the undisputed evidence established that Porter knew she was an at-will employee at least since 1987, Porters claim for wrongful termination based on the breach of implied contact to terminate only for cause was properly resolved against her as a matter of law. (See Guz, supra, 24 Cal.4th at pp. 350-353 [at-will employee may be terminated for "any or no reason," even an arbitrary reason, so long as it is not in violation of a statute].)
Although Porter stated otherwise in her declaration accompanying her opposition to the motion, Porter does not challenge the trial courts ruling disregarding her declaration on the matter because it conflicted with her prior deposition testimony. (See DAmico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 21-22.)
DISPOSITION
The judgment is affirmed. Jackson and USC are to recover his and its costs on appeal.
We concur: JOHNSON, J., WOODS, J.