Opinion
C085542
12-07-2018
DUANE D. REED II, Plaintiff and Appellant, v. SELVI STANISLAUS, as Executive Director, etc., Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2015-00184776-CU-WT-GDS)
Duane Reed filed a complaint against Selvi Stanislaus in her capacity as Executive Director of the Franchise Tax Board (hereafter FTB), asserting wrongful termination, sexual harassment, retaliation, and failure to ensure a workplace free of sexual harassment. The complaint sought compensatory and punitive damages. The trial court dismissed all of Reed's claims except for the retaliation cause of action, and ultimately granted the FTB's motion for summary judgment, concluding that Reed failed to timely exhaust his administrative remedies and failed to show triable issues of material fact regarding causation and pretext.
Reed now contends the trial court erred in granting summary judgment because there are triable issues of material fact in connection with his retaliation cause of action. Finding no error, we will affirm the judgment.
BACKGROUND
A
Reed's first amended complaint, as limited by the trial court's November 17, 2016 demurrer ruling, alleged the following:
Reed was subjected to unwanted physical contact from a female coworker, Jane Doe #1 (and related office gossip) starting in 2012, and he was placed on a hard furlough in 2013 after he complained about that contact. Jane Doe #1 filed a complaint against him in September 2012. Reed complained about the verbal comments of another coworker, Jane Doe #2, which he thought were encouraging his alleged relationship with Jane Doe #1. Reed's request for reassignment to a work area away from Jane Does #1 and #2 was denied. Reed took a month of medical leave from January to February 2013 and continued pursuing his harassment complaints, obtaining a right to sue letter.
Reed received his first poor work review in the spring of 2013 and was furloughed that May. "[T]he negative comments concerning his work performance in 2012 an[d] early 2013 all arose out of his efforts to report and stop the sexually harassing and bullying conduct he experienced through this time period from the two female co-workers, Jane Doe #1 and Jane Doe #2." In December 2013, Reed "filed a civil action seeking to be reinstated to his job and alleging sexual harassment," which was served on the FTB in April 2014.
Reed was recalled and began working in mid-March 2014. A few days after his return, Reed was approached by Jane Doe #2, who leaned forward and threatened in a soft voice, "We'll get you." "[T]his interaction was videotaped as well as personally witnessed by at least one person in the FTB cafeteria area." Reed complained to superiors about this incident but was informed his complaint was not actionable. "[H]is complaint of harassment by Jane Doe #2 was essentially dismissed."
Shortly after lodging the complaint regarding Jane Doe #2's conduct, Reed was repeatedly subjected to questioning by immediate supervisors and security concerning his complaint. Reed was initially compliant, but later learned he was entitled to have a union representative present and refused to meet with anyone without such a representative. Reed was refused the right to have a union representative present and "management staff physically blocked [Reed's] efforts to directly approach an FTB employee who was an on-site union representative. This conduct continued for several days before [Reed] was finally confronted by FTB managers at his desk and informed that he was being fired for insubordination, principally for refusing to meet with management staff without union representation."
Reed unsuccessfully sought reinstatement through a union proceeding and received a right to sue letter from the Department of Fair Employment and Housing (DFEH) in May 2014.
"All of these acts constitute retaliation by [the] FTB, agency supervisors and managers against [Reed] who was seeking to exercise his rights to a safe worksite free from sexual harassment and oppressive conduct on the part of fellow staff as well as agency management."
B
The FTB moved for summary judgment and filed a statement of undisputed material facts. Reed's response to the FTB's separate statement did not comply with the rules of court. Among other things, it did not provide citations to specific evidence. The following facts are set forth in the FTB's statement of undisputed material facts:
Reed was employed as an FTB seasonal clerk from 2001 through 2014. He was furloughed in May 2013.
In January 2013, Reed filed a complaint with the Equal Employment Opportunity Commission (EEOC) against a coworker. In March 2013, Reed filed a complaint with the DFEH complaining of gender discrimination, and he received a right to sue letter in June 2013. Reed also filed a complaint with the EEOC in August 2013, complaining of sex discrimination and retaliation, and received a right to sue letter in September 2013. In December 2013, Reed filed a petition for writ of mandate against the FTB seeking reinstatement after his May 2013 furlough. The FTB was served with the writ petition almost 6 months later.
In the interim, Reed returned to work on or around March 4, 2014. That month he lodged an FTB Equal Employment Office (EEO) complaint against a coworker. The following month, Reed repeatedly interrupted a supervisor, told the supervisor to stop talking, initiated a phone call while the supervisor was speaking, and attempted to leave a meeting before its conclusion. On another occasion, Reed handed his supervisor a Post-it Note with a phone number on it and informed her that if she wanted to speak with him she needed to call and make an appointment. The FTB terminated Reed's seasonal employment on April 10, 2014, because of what it characterized as Reed's repeated insubordinate behavior. The FTB asserts it did not know about Reed's pending EEOC complaint or Reed's petition for writ of mandate at the time it terminated him.
In July 2014, Reed filed a complaint with the DFEH. That complaint was limited to an incident of sexual harassment that allegedly occurred on March 12, 2014. The DFEH issued a right to sue letter on June 29, 2015, and Reed filed the instant lawsuit. At no time did the FTB receive a complaint, whether internally or from the DFEH or EEOC, alleging that Reed's April 10, 2014 termination was the result of retaliation for his participation in protected activities.
C
The trial court overruled Reed's untimely objections because they were not directed at specified FTB evidence and they did not comply with the rules of court. As for Reed's evidence, the trial court ruled that Reed's declaration was inadmissible because it was not signed under penalty of perjury.
The trial court granted the FTB's motion for summary judgment, concluding the FTB met its initial burden and Reed did not rebut the FTB's showing. The trial court found no substantial evidence that the FTB's termination of Reed was retaliatory.
STANDARD OF REVIEW
On review of summary judgment, we examine the record de novo and independently determine whether the trial court's decision was correct, applying the same process required of the trial court. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.) First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; second, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; and if such a prima facie showing is made, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. (Ibid.)
A defendant meets its initial burden by showing that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to set forth specific facts showing that a triable issue of material fact exists. (Ibid.) Plaintiff's failure to provide an adequate separate statement may constitute a sufficient ground to grant the motion. (§ 437c, subd. (b)(3).)
Undesignated statutory references are to the Code of Civil Procedure. --------
Although Reed is representing himself on appeal, he is held to the same standards and rules of procedure as a licensed attorney. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Thus, he must separately identify under appropriate headings each assertion of trial court error and support those assertions with citations to reasoned authority and specific portions of the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.)
DISCUSSION
Reed contends the trial court erred in granting summary judgment because there are triable issues of material fact in connection with his retaliation cause of action. The record shows, however, that Reed did not provide an adequate separate statement establishing triable issues of material fact, and the trial court found his evidence inadmissible. He nevertheless argues the relevant disputed facts are identified in his pleading. But the mere allegations in his pleading were insufficient to overcome summary judgment. (§ 437c, subd. (p)(2).) The FTB made a prima facie showing and shifted the burden to Reed by presenting evidence of a nondiscriminatory and legitimate business reason for terminating Reed's employment. Reed needed to rebut the showing with affirmative evidence, but he did not. (Barry v. Rodgers (1956) 141 Cal.App.2d 340, 343.) Accordingly, we need not address the remaining grounds for the judgment, as a single valid basis suffices to uphold a grant of summary judgment. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)
Reed's summary and unsupported assertions in the conclusion of his appellant's opening brief are not sufficient to meet his burden on appeal, and we do not consider the arguments he raised for the first time in his appellant's reply brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
DISPOSITION
The judgment is affirmed. The FTB shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
RENNER, J.