Opinion
B232573
02-02-2012
ANTHONY RAMIREZ, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Anthony Ramirez, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman and Rand D. Carstens for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC426332)
APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.
Anthony Ramirez, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman and Rand D. Carstens for Defendant and Respondent.
In this employment discrimination action brought under the Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.), Anthony Ramirez appeals from a judgment after the trial court granted summary judgment in favor of his former employer, The Regents of the University of California (the Regents). The Regents' summary judgment motion was based upon establishing that Ramirez was terminated from his employment for his insubordination, and not for an unlawful reason. In granting the motion, the trial court found the absence of a triable issue of material fact to show the Regents' reason for Ramirez's termination was pretextual. We affirm.
BACKGROUND
"On appeal after a motion for summary judgment has been granted, 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 (Guz); see also Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 (Google).)We apply " 'the same three-step process required of the trial court. [Citation.]' " (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The three steps are: (1) determine the issues framed by the complaint; (2) determine whether the moving party made an adequate showing that negates the opponent's claims as alleged; and (3) determine whether the opposing party has raised a triable issue of fact. (Ibid.)
Our review, however, is limited to the contentions addressed in Ramirez's opening brief. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
1. The Allegations in the Complaint
Ramirez was employed as a research database manager at the Mary S. Easton Center for Alzheimer's Disease Research at UCLA (the Center). He worked at the Center from July 2007 until his termination on June 5, 2009, effective June 15, 2009. Ramirez's complaint alleged causes of action for: (1) disability discrimination in violation of Government Code section 12940, subdivision (a); (2) race discrimination (Gov. Code, § 12940, subd. (a)); (3) retaliation (Gov. Code, § 12940, subd. (h)); (4) disability and race harassment (Gov. Code, § 12940, subd. (j)); (5) failure to prevent discrimination (Gov. Code, § 12940, subd. (k)); and (6) intentional infliction of emotional distress. These claims are based upon the following allegations in the complaint.
On January 21, 2009, Ramirez's direct supervisor Jeffrey Cummings allegedly told Ramirez that he was demoted because he was " 'underqualified' " to hold the position, and his performance issues were likely due to his " 'health conditions.' " Cummings also allegedly told Ramirez that " 'the Data Manager's position proved too much for a person like you, that's why there are so few Latinos in management." Cummings informed Ramirez that Jenny Kotlerman would be his supervisor.
The following day, Ramirez filed a written complaint with the UCLA Staff Affirmative Action Office. Ramirez also contacted the UCLA Department of Neurology Human Resources office, and filed additional internal complaints. He later filed a complaint with the Equal Employment Opportunity Commission (EEOC).
After filing these complaints, Ramirez allegedly was subjected to what he described as an "intensified pattern of discrimination, harassment, and retaliation." On April 13, 2009, Ramirez met with Kotlerman and Cummings to discuss "unsubstantiated issues of 'accuracy and timeliness.' " Following the meeting, Ramirez became ill and left work. He requested and was given medical leave until April 28, 2009. Upon his return, Ramirez alleges he was retaliated against for taking medical leave, singled out, and "subjected to surveillance in the form of a new monitored workstation . . . ."
On April 29, 2009, Ramirez received another memorandum from Cummings, addressing his "unwillingness to accept Kolterman [sic]as his immediate supervisor." Cummings referred to a communication between Ramirez and Kotlerman in which she requested that Ramirez bring in a doctor's note after one day of unexcused absences based upon his pattern of absences. This request allegedly unilaterally changed the workplace rules to apply specifically to Ramirez.
On June 5, 2009, Cummings gave Ramirez a formal notice of intent to dismiss based upon inappropriate communications with Kotlerman on May 19, 2009. Ramirez was terminated effective June 15, 2009.
On July 17, 2009, Ramirez filed an amended EEOC complaint to include retaliation following his termination.
2. The Parties' Showing on the Motion for Summary Judgment
The Regents moved for summary judgment on the ground that Ramirez's termination was based upon a nondiscriminatory, nonretaliatory business reason and that Ramirez could not present any direct or circumstantial evidence to dispute that fact.
" 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citations.] The purpose is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.' " (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168.) In response to the Regents' separate statement, Ramirez either disputed facts without supporting evidence, or disputed facts with evidence to which the trial court sustained the Regents' objections. Since Ramirez does not challenge these evidentiary rulings on appeal, we do not consider the evidence he submitted to which objections were sustained. (Code Civ. Proc., § 437c, subd. (c).)
Ramirez submitted a declaration to defeat summary judgment, but he did not cite to any portion of his declaration in his responsive separate statement to dispute a material fact. In United Community Church v. Garcin (1991) 231 Cal.App.3d 327, the court stated the "Golden Rule" of summary adjudication, equally applicable to summary judgment: " '[I]f it is not set forth in the separate statement, it does not exist.' " (Id. at p. 337.) Many courts, however, have adopted an approach that gives the trial court discretion to consider nonreferenced evidence. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.) We view the trial court's decision to overrule the objections to Ramirez's declaration as exercising its discretion to consider this nonreferenced and admissible evidence, which we also consider in our analysis.
The Regents contend the trial court erred in overruling objections to portions of Ramirez's declaration. We have reviewed these objections but do not need to resolve this issue because the evidence does not dispute a material fact.
a. The Regents' Showing Related to the Reason for Ramirez's Termination
Ramirez is Latino, a member of a protected class under the FEHA, and has a vision disability that limits one or more major life activity. Ramirez is legally blind in peripheral fields, with 20/20 corrected vision. He was hired by Cummings and began working as a Programmer/Analyst III in July 2007 at the Center and remained in that position until he was terminated by Cummings. Ramirez initially reported to Cummings while he was working on the UCLA Institutional Review Board (IRB) audit.
(1). Kotlerman Becomes Ramirez's Supervisor
In August 2008, Ramirez finished working on the IRB audit and returned to his duties as a database manager. Ramirez's position was part of the data management and statistic core group. He managed the data within the core group, and Kotlerman managed the core group. At a meeting of the core group in November 2008, Cummings told Ramirez that he needed to collaborate with Kotlerman on data submission processes, after issues arose concerning Ramirez's performance.
In January 2009, Cummings appointed Kotlerman to supervise Ramirez. Ramirez's position, title, and salary remained the same following Kotlerman's appointment.
Ramirez testified that during their January meeting Cummings criticized his performance, stating his performance issues were " 'likely due to your conditions,' " which Ramirez understood as "alluding to [his] disabilities." Ramirez also stated that Cummings said, " 'That's why there [are] so few Latinos in management.' " Before this meeting, Cummings had never made a comment to Ramirez about his disability or race.
Ramirez also testified that Kotlerman made statements to him about his vision, referring to his ability to see the " 'small code, programming code, statistical analysis code,' " because it was difficult for her to see the code. Ramirez testified Kotlerman first made these comments to him in August 2008, and thereafter about once or twice a month until she became his supervisor. After she became Ramirez's supervisor, Kotlerman commented on his ability to read the statistical analysis code about three times a month. Ramirez also overhead Kotlerman and a coworker, Sun Hwang, discussing his "condition" on two separate occasions, once in August 2008 and again in April 2009.
Ramirez filed internal complaints following Cummings' decision, seeking a transfer, and requesting the "rights and privileges of my position as Center Data Manager immediately restored. I will not report to nor will Jenny [Kotlerman] have any supervisory authority over me."
(2). Ramirez's April 7, 2009 E-mail
On April 7, 2009, Kotlerman sent Ramirez the following e-mail: "What are you working on now? Ramirez responded: "What's with the constant interruptions? I am heavily engaged as you should know. I am working on A. more NACC packets, B. milestones, C. medication, and D. neuropathology updates. Then, I will update the E. baseline and F. follow up packets with the new IRB approved caregiver/informant consents from Jay. What are you working on now as I can't see why you are constantly interrupting me? I am a SENIOR programming analyst, as it should be now abundantly clear, I don't need any assistance, thanks. . . ."
Later that day, Ramirez sent Kotlerman another e-mail. It stated, in part: "As far as your constant interruptions are concerned, you are my supervisor due to circumstances that will be addressed in due time in an appropriate venue. But as a supervisor for a senior programming analyst with 10+ years of research experience/expertise, you do not need to know what I am working on at any given moment. That is not within the professional norms, I've been at UC for over 10 years, 8+ years at UCLA, worked for vastly senior more [sic] staff and faculty, both clinical and population-based research and statistical analysis, with production and products that speak for themselves, that [sic]what you have done and are doing is outside these norms."
(3) . Ramirez's April 14, 2009 E-mail
On April 13, 2009, Cummings and Kotlerman met with Ramirez and addressed, among other things, his insubordination. After the meeting, Ramirez became ill and left work. The following day, he informed Kotlerman that he would not appear for work. In response, Kotlerman sent the following e-mail: " 'Because of your pattern of unscheduled absences, you will need to bring in a doctor's note at any time you are out for more than one day.' " In a responsive e-mail on April 14, 2009, Ramirez wrote " 'Nonsense,' " and he would " 'not comply' " with what he referred to as the " 'discriminatory request. These unscheduled absences are . . . due [to] the months of harassment and discrimination by you and Jeff.' " The UCLA work rules permit a request that an employee may be required to submit a physician's verification of illness if the employee's attendance record demonstrates a pattern of absenteeism.
On April 29, 2009, when Ramirez returned to work after a medical leave, he received a reprimand from Cummings related to his interactions with Kotlerman. Upon his return to work, human resources asked Kotlerman to monitor the hours that Ramirez worked.
(4) . Ramirez's May 19, 2009 E-mail
On May 19, 2009, in response to Kotlerman's e-mail addressing errors in data reports and directing his assignments, Ramirez responded and asked for clarification of the e-mail. Following Kotlerman's response, Ramirez wrote the following e-mail: "If you were not implying that these across clinical assessment errors are mine then what was the purpose of your email when you know I am working on ARCC/UCLA program that apparently no [one] else on the Easton UCLA ADRC payroll has the advance programming skills to correctly address? [¶] And want [sic] is this nonsense here 'When you do a submission, and you show everyone that you have zero errors on submission, those are just the errors that NACC caught for you within the packets. Now NACC has caught for you all the errors between packets.' So Sun, Danny, etc. couldn't even get this process right? Perhaps, when I'm done with ADRC, you can? You'll be the first to know. [¶] 'This report showing between packet errors is a sign that the programs that
are being used here at UCLA are not checking for them and are thus not doing the job that they are supposed to do'? Is this your interpretation? Well, let me inform you, almost all ADRC centers across the country are not capable of doing repeated measurement concordance across research subject packets, let alone, at each delivery, and you should know this fact. Absolutely unbelievable statements you made here."
(5). Ramirez's Termination
On June 5, 2009, Cummings issued a notice of intent to dismiss Ramirez based upon his insubordination, citing Ramirez's e-mails to Kotlerman, and specifically referencing the May 19, 2009 e-mail. Cummings described the e-mail as "rude, disrespectful and unprofessional." On June 12, 2009, Cummings issued a notice of dismissal for unsatisfactory behavior and communications, effective June 15, 2009.
b. Ramirez's Showing to Establish Pretext
Ramirez's declaration addressed Cummings' January 2009 decision to make Kotlerman his supervisor, and repeated his testimony that Cummings referred to his "health conditions," and his race.
Ramirez further stated in his declaration that he believed he was retaliated against for participating in the EEOC investigation, which included sending evidence from his monitored work computer to one of the agency's investigators. He sent the information to the EEOC investigator on June 2, 2009, and shortly thereafter he was given notice by Cummings of his intent to terminate Ramirez's employment. In terminating him, Ramirez states that UCLA did not follow its official written policies and failed to provide all wages due him upon termination.
3. The Trial Court Granted Summary Judgment
The trial court concluded the Regents met their burden on summary judgment to demonstrate no triable issues of material fact. The Regents presented undisputed evidence that Ramirez's termination was based upon his insubordination, establishing a legitimate, nondiscriminatory and nonretaliatory reason for the decision. Ramirez presented no admissible evidence to show pretext. The trial court noted that Ramirez's declaration, referring to his complaint of discrimination after Kotlerman became his supervisor, did not raise a triable issue of fact because the insubordinate e-mails occurred after he filed the complaint, and the complaint did not "insulate him from termination on the basis of subsequent insubordination." Moreover, the court reasoned Ramirez's belief that the supervisorial change was a demotion, even if it were an adverse employment action, was irrelevant in light of the events that led to his termination. Thus, Ramirez's discrimination claims (first, second, fifth causes of action) failed as a matter of law.
Ramirez's retaliation claim (third cause of action) also failed as a matter of law because the Regents established that the decision to terminate Ramirez was based upon his insubordination. Ramirez, in turn, did not present any evidence to raise a triable issue of fact that the stated reason was a pretext for retaliation.
The trial court also concluded that Ramirez presented no evidence of race or disability harassment arising from Kotlerman's e-mails to him (fourth cause of action). Since there was no discrimination, retaliation or harassment, the claim for intentional infliction of emotional distress also failed (sixth cause of action).
As an initial matter, we reject Ramirez's argument that the trial court engaged in prohibited weighing of the evidence. Ramirez's assertion is based upon remarks made by the trial court during the hearing. Nothing in the order indicates the weighing of evidence.
Judgment was entered on April 19, 2011. This appeal followed.
Ramirez appears to contend that the trial court erred in awarding attorney fees to the Regents. The trial court did not award attorney fees.
DISCUSSION
The Regents, as the party moving for summary judgment, bear an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if this burden of production is met, Ramirez, the opposing party, has the burden of production to make a prima facie showing of the existence of a triable issue of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Under this analytical framework, the Regents met their burden, and Ramirez did not.
1. No Triable Issue on Discrimination Claims (first, second & fifth causes of action)
In assessing whether summary judgment was properly granted against Ramirez on his claims for disability discrimination, race discrimination, and failure to prevent discrimination, we apply a three-stage burden-shifting test. (Guz, supra, 24 Cal.4th at p. 354.) The employee must first establish a prima facie showing of wrongful discrimination. (Id. at pp. 354-355.) The burden then shifts to the employer to rebut the prima facie case of discrimination by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. (Id. at pp. 355-356.) Then, the employee has the burden to attack the employer's proffered reasons as pretexts for discrimination. (Id. at p. 356.)
Since the Regents presented evidence of a nondiscriminatory reason to terminate Ramirez, we need not address whether Ramirez established a prima facie case of disability or race discrimination. (Guz, supra, 24 Cal.4th at p. 357.) The Regents' showing that Ramirez was terminated for insubordination was supported by the e-mail communications between Ramirez and Kotlerman beginning in April 2009 through May 19, 2009.
We find nothing in the trial court's order to support Ramirez's argument that the trial court decided he did not have a physical disability.
Upon the Regents' showing, the burden shifted to Ramirez to show a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 360.)
Ramirez contends the circumstances surrounding his termination raise a triable issue that the stated reason was pretextual. He points to his qualifications, experience, performance, and good performance reviews, as well as his belief that he was demoted because of his race and disability when Kotlerman became his supervisor. This evidence, however, ignores his insubordinate conduct after Kotlerman became his supervisor, and the disciplinary warnings that followed, which was the reason for his termination. Ramirez's belief and subsequent complaints that Cummings' decision was an unlawful demotion did not protect him from termination for cause.
Ramirez also contends that Cummings' remarks related to Ramirez's "health condition," and race during their January 2009 meeting, and Kotlerman's remarks related to his disability are sufficient to raise a triable issue of fact that his termination was a pretext for discrimination. Relying on Google, supra, 50 Cal.4th 512, Ramirez argues the California Supreme Court has rejected the stray remarks doctrine, and Cummings' and Kotlerman's remarks are sufficient to withstand summary judgment.
Under the stray remarks doctrine, "federal circuit courts deem irrelevant any remarks made by nondecisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, and such stray remarks are insufficient to withstand summary judgment. [Citations.]" (Google, supra, 50 Cal.4th at p. 537.) In Google, the court held that stray remarks should not be categorically excluded, but considered with all the evidence in the record. (Id. at pp. 538-545.) "Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered. Thus, a trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks." (Id. at p. 541.)
We consider the allegedly discriminatory remarks in the context of the record. Cummings hired and terminated Ramirez, raising an inference that Cummings had no discriminatory motive. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 272-273.) Cummings' statements, assuming they were made during the January 2009 meeting, were purportedly made while discussing Ramirez's inability to do his job, and the meeting occurred almost six months before Ramirez was terminated for insubordination. During the intervening months, Ramirez refused to accept Kotlerman as his supervisor, was insubordinate, and received disciplinary warnings. Ramirez's conduct toward Kotlerman indisputably led to his termination. Although Kotlerman was Ramirez's supervisor, it is undisputed that Cummings made the decision to terminate Ramirez. Thus, unlike the plaintiff in Google, these remarks represent Ramirez's entire case; there is no other evidence that the decisionmaker harbored discriminatory animus. Moreover, here there was an intervening cause for Ramirez's termination. Thus, Ramirez's evidence, when viewed in the context of the entire record, does not corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence.
Ramirez also has presented several related arguments, unsupported by evidence, and unrelated to the allegations in the complaint to attempt to show pretext. We have considered and rejected these arguments.
Giving Ramirez's evidence every reasonable inference, we conclude that he has not raised a factual dispute that the reason stated for his termination was untrue or pretextual. Thus, his discrimination claims based on disability, race, and failure to prevent discrimination fail as a matter of law.
2. No Triable Issue on Retaliation Claim (third cause of action)
Ramirez contends that the Regents retaliated against him upon his return from medical leave and for filing internal complaints and the EEOC complaint. (Gov. Code, § 12940, subd. (h).)
Under the FEHA, retaliation claims, like discrimination claims, are subject to the three stage burden-shifting test. (Guz, supra, 24 Cal.4th at p. 354; see also Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Thus, after establishing a prima facie case of retaliation, the employer must articulate a nonretaliatory explanation for its acts, and the employee must then show that the explanation is a pretext for unlawful retaliation. (Yanowitz v. L'Oreal USA, Inc., supra, at p. 1042; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.)
Here, as with Ramirez's discrimination claims, the Regents established that Cummings' decision was based upon Ramirez's insubordination, which began in April 2009, before and after Ramirez took his medical leave and after he filed his complaints. At that point, the burden shifted to Ramirez to show the Regents' proffered reason for his termination was pretextual. (See Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)
In view of this showing by the Regents, we do not address whether Ramirez established a prima facie case of retaliation. (Guz, supra, 24 Cal.4th at p. 357; see Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)
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Ramirez did not meet his burden. He did not deny writing the e-mails, only the effect of these e-mails. To raise an inference of pretext, Ramirez referred to his participation in the EEOC investigation. He stated in his declaration that on June 2, 2009, he forwarded information to an EEOC investigator, and within days he was dismissed. Ramirez does not state Cummings had any knowledge of his participation in the EEOC investigation. An issue of fact arises only by a conflict in the evidence, not speculation and conjecture. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.) The Regents were aware that Ramirez filed an EEOC complaint, months before he was terminated. Ramirez was terminated for his insubordinate conduct that occurred after he filed the EEOC complaint. On this record, Ramirez did not raise a factual dispute that his termination was based upon unlawful retaliation. Thus, his retaliation claim fails as a matter of law.
3. No Triable Issues on Harassment Claim (fourth cause of action)
Ramirez's disability and race harassment claim was based upon Cummings' and Kotlerman's comments to him, and Kotlerman's request following his unexcused absence. While the FEHA's prohibition against unlawful harassment includes protection from a broad range of conduct, it does not protect Ramirez from Kotlerman's supervision, which included enforcing the sick leave policy that indisputably gave Kotlerman the right to request excused absences. Common personnel management actions do not come within the meaning of harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 646-647.) Thus, our focus is on any evidence in the record to raise a triable issue of fact that Ramirez was a victim of disability and race harassment while he worked at the Center. (Gov. Code, § 12940, subd.
To establish disability or race harassment, Ramirez must show that he was subjected to offensive comments or other abusive conduct based upon his disability or race, and this conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130; Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at pp. 263-264.) Occasional, isolated, sporadic or trivial actions are not enough to alter employment conditions and create a hostile environment, rather the plaintiff must show a " 'concerted pattern of harassment of a repeated, routine or a generalized nature. . . .' " (Aguilar v. Avis Rent A Car System, Inc., supra, at p. 131.) Whether an abusive environment exists is determined by the totality of the circumstances, including the nature of the unwelcome acts, the frequency of the offensive conduct, the severity of the offensive conduct, whether the offensive conduct is physically threatening or humiliating, and whether the offensive conduct interferes with the employee's work performance. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-465.)
An employer is strictly liable for the harassing conduct of its supervisors. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.) An employer also is liable for the harassing conduct of its employees if the "entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." (Gov. Code, § 12940, subd.
Ramirez testified that Cummings made one comment regarding Latinos during the January 2009 meeting. Ramirez identified no other racial comments. Based upon Ramirez's own testimony, this isolated remark was not severe and pervasive to constitute race harassment.
Ramirez also testified that Cummings referred to his "health condition," during their January 2009 meeting, and testified that Kotlerman referred to his ability to read small computer code before and after she became his supervisor. Ramirez, however, admitted that Cummings' remark was the first time he mentioned Ramirez's vision, and remarks by Kotlerman and his coworker were occasional. By Ramirez's own admission, these comments were sporadic rather than pervasive.
In his internal complaints and EEOC complaints, Ramirez's harassment claim was based upon a hostile work environment arising from Kotlerman's supervision, and her "unwarranted and constant disruption of [his] work." As the trial court noted, disruptions at work are not the covered by the FEHA. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) Thus, this claim fails as a matter of law.
4. Intentional Infliction of Emotional Distress (sixth cause of action)
Ramirez's claim is based upon the discrimination, retaliation, and harassment he allegedly suffered after Kotlerman became his supervisor. This claim fails for the reasons stated in this opinion.
DISPOSITION
Judgment affirmed. Each party to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.