Summary
holding a claim for wrongful termination in violation of public policy against a state agency was barred under § 815 because there was no authorizing statute
Summary of this case from Scott v. Solano County Health and Social Services Dept.Opinion
No. A110543.
January 24, 2007. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.B. and II.C.
Appeal from the Superior Court of Alameda County, No. RG03113907, James A. Richman, Judge.
Law Offices of Joan Wolff, Joan Wolff; and Michael Couzens for Plaintiff and Appellant.
Thomas C. Lee for Defendant and Respondent.
OPINION
George W. Ross, Jr., sued the San Francisco Bay Area Rapid Transit District (BART) for wrongful termination in violation of public policy and for age and disability discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). He appeals from a summary judgment in favor of BART, asserting that there are triable issues of material fact with regard to each of his causes of action. We find that summary judgment was properly granted and affirm the judgment.
All statutory references are to the Government Code unless otherwise indicated.
I. BACKGROUND
After 26 years of employment with BART, Ross retired from his position as a central maintenance supervisor in September 2003. At the time of his retirement Ross was 57 years old and on disability leave. BART had notified him in February 2002 that it was terminating his employment for dereliction and negligence in the performance of his duties. It later rescinded the termination notice and suspended Ross for 45 days to take effect when he returned from his disability leave. Ross filed for a voluntary retirement after unsuccessfully attempting to negotiate a stay of the suspension pending arbitration.
In September 2002, Ross filed a complaint under FEHA alleging that he was fired because he was "the oldest on [his] job," had "unionized lower management," and was "36.5% disabled." He received a right-to-sue letter under FEHA in October 2002.
A. First Amended Complaint
Ross sued BART in August 2003. His first amended complaint alleged four causes of action: (1) wrongful discharge in violation of public policy; (2) age discrimination in violation of FEHA; (3) failure to accommodate his disability in violation of FEHA; and (4) discrimination, failure to reasonably accommodate, and retaliation in violation of public policy.
Ross alleged the following relevant facts: On December 20, 2001, Ross was staffing BART's trouble desk for part of the day, taking alternating two-hour shifts with another supervisor. During the morning, the other supervisor on duty had several confrontations with technicians over a BART directive that they wear orange vests in addition to their regular uniforms, but Ross had no such confrontations. Three mainline technicians left their shifts that morning, claiming to be sick.
After September 11, 2001, BART management directed all BART employees who worked in the public eye to wear orange safety vests so that they would be more visible to BART patrons, thereby reassuring the public and making it appear that more employees were present in BART's public facilities. Some BART employees objected to the policy on the grounds that the vests would make them targets of criminal or other antisocial behavior.
Ross was interviewed three times concerning the events of December 20. Believing he had done nothing wrong, he refused to sign a prepared admission that he had been untruthful and uncooperative. After BART gave him notice of a termination hearing, Ross filed for stress disability. Ross did not appear at the termination hearing, believing that he was not allowed onto BART property while on disability leave. The hearing officer found that Ross was responsible for a work stoppage on December 20, and upheld BART's recommendation that Ross be discharged from his employment. Because a discharge during disability leave was illegal, BART reduced the sanction from dismissal to 45 days' suspension, but refused to stay the penalty or arbitrate Ross's grievance over the suspension until he first served out a 45-working-day suspension without pay.
Ross was represented by union representatives at the hearing.
Ross was terminated, in whole or in part, (1) in retaliation for giving truthful testimony in a disciplinary hearing against one of the technicians who left work on December 20, and (2) due to his age.
A psychiatrist recommended by BART's insurance carrier concluded that Ross was partially disabled as the result of job stress arising out of the termination incident. Ross's disability limited his ability to work at his old job without accommodations, but BART made no effort to investigate his impairment or negotiate appropriate accommodations. Ross reasonably concluded that BART would not offer him reemployment in a position commensurate with his background, experience, and mental state.
By, among other things, falsely accusing him of causing a work stoppage, conducting a hearing and firing him while he was on disability leave, and knowingly permitting intolerable working conditions, BART constructively discharged him from employment, and wrongfully discharged him in violation of public policy (first cause of action).
BART also discriminated against Ross based on his age in violation of FEHA (second cause of action) by (1) punishing him for acts and omissions that were not punished when committed by younger workers in the same category; (2) filling his position with younger, less qualified individuals; and (3) attempting to force him to retire by spreading rumors that he had retired or intended to retire.
BART failed to reasonably accommodate Ross's disability in violation of FEHA (third cause of action) by (1) conditioning his return to work on proof that he could perform his old job and refusing to negotiate accommodations for his disability, (2) convening a hearing during his disability leave, and (3) refusing to stay his 45-day suspension.
By acting as alleged, BART also violated the public policies of this state prohibiting age and disability discrimination by employers, requiring employers to make reasonable accommodations for the disabilities of their employees, and prohibiting employers from retaliating against employees for pursuing claims of discrimination, giving truthful testimony in an internal investigation, or organizing unions (fourth cause of action).
B. Proceedings on BART's Summary Judgment Motion
BART moved for summary judgment or, in the alternative, for summary adjudication, asserting that there was no triable issue of material fact with respect to the following issues: (1) Ross's first and fourth causes of action for wrongful discharge in violation of public policy are barred by BART's statutory immunity under sections 815.2, subdivision (b) and 821.6; (2) Ross's second cause of action for age discrimination in violation of FEHA has no merit because Ross could not establish a constructive discharge or adverse employment action; (3) Ross's second cause of action also fails because BART had a legitimate, non-age-based reason for its challenged action and there was no substantial evidence that its stated reason was pretextual; and (4) Ross's third cause of action for failure to accommodate his disability is barred because his administrative complaint to the FEHA enforcement agency, the Department of Fair Employment and Housing (DFEH), failed to provide adequate notice of this claim, and Ross had therefore failed to timely exhaust his administrative remedies.
Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."
Section 821.6 immunizes public employees from liability for wrongfully initiating an administrative proceeding without probable cause: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."
The trial court granted summary adjudication as to Ross's second cause of action on the ground that he had failed to come forward with a prima facie showing of age discrimination in response to BART's motion. The court denied summary adjudication of Ross's other causes of action, and denied summary judgment. Regarding the first and fourth causes of action, the court found that (1) the immunity afforded to public employees under section 821.6 was inapplicable; (2) there were triable issues of material fact as to whether Ross suffered an adverse employment action; and (3) there were triable issues of material fact as to whether BART disciplined or retaliated against Ross due to his participation in a disciplinary proceeding against another employee, and whether BART's actions were based on an improper motive or were pretextual. The court denied summary judgment on Ross's third cause of action on the ground that there was a triable issue of material fact as to whether Ross's notation on his FEHA complaint that he was "36.5% disabled" provided sufficient notice to DFEH to exhaust his administrative remedies as to BART's asserted failure to accommodate his disability.
BART petitioned for writ of mandate to this court, seeking an order directing the trial court to grant its motion for summary adjudication of Ross's first, third, and fourth causes of action. We issued an alternative writ directing the trial court to either set aside its order denying summary adjudication of these causes of action and grant summary adjudication of them, or to show cause why it had not done so. In the alternative writ, we stated that (1) BART was immune from liability on Ross's first and fourth causes of action under sections 815.2 and 821.6; and (2) as a matter of law, Ross failed to exhaust his administrative remedies with regard to his third cause of action because his FEHA complaint did not provide sufficient notice to the enforcing agency of the conduct alleged in that cause of action.
In light of the alternative writ, the trial court vacated the portions of its previous order denying summary adjudication of the first, third, and fourth causes of action, granted summary adjudication on these causes of action, and granted summary judgment in favor of BART. We dissolved the alternative writ, and dismissed BART's writ petition as moot.
BART properly concedes that, absent a written opinion following issuance of the alternative writ, this court's reasoning in issuing the alternative writ is not the law of the case for purposes of this appeal. (See Kowis v. Howard (1992) 3 Cal.4th 888, 893-894 [ 12 Cal.Rptr.2d 728, 838 P.2d 250].)
The trial court entered judgment in favor of BART on May 4, 2005, and this timely appeal followed.
II. DISCUSSION
A. Wrongful Termination in Violation of Public Policy
Ross contends that section 815.2, subdivision (b) provides immunity to a public entity only for its vicarious liability for the wrongs of its employees, but not for its own direct liability. According to Ross, the common law torts of discrimination or wrongful termination in violation of public policy create direct employer liability that, in the case of a public entity employer, is unaffected by section 815.2 or 821.6. He insists that the fact that BART held a disciplinary hearing before taking action against him therefore affords BART no statutory shield from its direct liability for his injuries under the first and fourth causes of action of Ross's first amended complaint.
In our view, Ross's analysis fails to recognize a fundamental distinction between common law tort claims such as those pleaded in his first and fourth causes of action, and the statutory FEHA violation claims alleged in his second and third causes of action. BART can have no direct liability except as provided by statute. Section 815 specifies that "[ e] xcept as otherwise provided by statute: [¶] . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (§ 815, subd. (a), italics added.) As stated in Caldwell v. Montoya (1995) 10 Cal.4th 972 [ 42 Cal.Rptr.2d 842, 897 P.2d 1320] ( Caldwell), section 815 establishes "the basic rule that public entities are immune from liability except as provided by statute." ( Caldwell, at p. 980, italics omitted.) Thus, when it comes to common law tort injuries, BART's liability can only be predicated on its vicarious liability, if any, for the wrongful acts of its employees, as authorized by section 815.2, subdivision (a).
In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [ 164 Cal.Rptr. 839, 610 P.2d 1330] ( Tameny), the California Supreme Court recognized that a common law tort action might lie if the employer discharges an employee for reasons that are violative of a firmly established public policy. ( Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 666-667, 668 [ 254 Cal.Rptr. 211, 765 P.2d 373].) As the high court later explained, "because there was no statute specifically barring an employer from terminating an employee who refused to act illegally, the court [in Tameny] was required to consider whether, without the authority of an express prohibition on the reasons for discharge, the plaintiff's action could proceed." ( Foley, at p. 668, italics added.) Thus, so-called Tameny claims — based on employer conduct in derogation of important public policies — have been defined from their inception to exclude claims that are entirely redundant to those authorized by statute. (See also Rojo v. Kliger (1990) 52 Cal.3d 65, 73-82, 89 [ 276 Cal.Rptr. 130, 801 P.2d 373] [independent common law claim of tortious discharge in violation of public policy does not duplicate FEHA rights and remedies].) Since a public entity has no direct liability for its acts or omissions except as provided by statute (§ 815, subd. (a)), it follows that in the case of a Tameny claim against a public entity, the entity is liable, if at all, only vicariously, and that it is immune from liability to the extent that its employees are immune.
In support of his claim that the governmental immunity statutes are inapplicable to his Tameny claims, Ross cites Caldwell. But Caldwell merely suggests in a footnote that a FEHA statutory claim can be maintained against a public entity even though its agents or employees are immune from liability. ( Caldwell, supra, 10 Cal.4th at p. 989, fn. 9 ["Nothing we say here is intended to imply that because the individual board members are immune, plaintiff's FEHA claim against [the school district itself] is also barred"].) The court found that a school district's elected board members were immune from liability for terminating the superintendent's employment under both common law and FEHA causes of action because the termination was an exercise of the discretion vested in the board. ( Caldwell, at p. 978, applying § 820.2.) The issue of the school district's immunity from common law liability was not mentioned or discussed in the case.
The Caldwell court assumed without deciding that viable FEHA causes of action could otherwise be stated against the board members. ( Caldwell, supra, 10 Cal.4th at pp. 978-979, fn. 3.)
Ross correctly points out that FEHA's general prohibition against age discrimination in employment has been held to be sufficiently substantial to support a Tameny claim for wrongful termination, and that disability discrimination can form the basis of a common law wrongful discharge claim against a public agency. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890 [ 66 Cal.Rptr.2d 888, 941 P.2d 1157]; City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1161 [ 77 Cal.Rptr.2d 445, 959 P.2d 752] ( City of Moorpark).) The dispositive question here is whether these claims come within the scope of section 821.6 in the factual circumstances of this case.
Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [ 4 Cal.Rptr.2d 203] ( Shoemaker) is instructive on this question. Shoemaker sued the State of California and various state officials and employees after he was terminated from his job as an investigator for the Department of Health Services (DHS), allegedly in retaliation for exposing wrongdoing by DHS officials. ( Id. at p. 1415.) Shoemaker alleged that an outside psychiatrist had erroneously blamed him for harassing two of his patients, and that his DHS supervisors interrogated him repeatedly about the charges and then fired him for insubordination when he refused to answer further questions unless he had legal representation. ( Id. at pp. 1414-1415.) Shoemaker alleged that DHS officials made statements to the effect that they knew the termination was not proper, but went out of their way to cause him as much trouble as possible. ( Id. at p. 1415.)
Among other claims, Shoemaker asserted a Tameny cause of action for wrongful termination in violation of public policy and a claim for damages under a special statute protecting whistleblowers. ( Shoemaker, supra, 2 Cal.App.4th at pp. 1416, 1419.) The Court of Appeal held that the Tameny claim was barred by section 821.6. ( Shoemaker, at pp. 1424-1425.) For this, the court relied on two earlier cases, Hardy v. Vial (1957) 48 Cal.2d 577 [ 311 P.2d 494] ( Hardy) and Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426 [ 246 Cal.Rptr. 609] ( Kemmerer), that applied section 821.6 (or its common law predecessor) to wrongful discharge claims arising in the public sector. Hardy involved a state college professor who was discharged based on false allegations of misconduct. ( Hardy, supra, 48 Cal.2d at p. 580.) After a hearing, the State Personnel Board found that the charges were untrue and that the grounds for the dismissal were not sustained by the evidence. ( Ibid.) The Supreme Court held that the plaintiff's claims were cognizable under the rule that "an action for malicious prosecution may be founded upon the institution of a proceeding before an administrative agency." ( Id. at p. 581.) However, the court found that such claims were subject to a recognized common law immunity. This immunity protected public officials from liability for injuries caused when, acting within the scope of their duties, they instituted an administrative proceeding against a person wrongfully and without probable cause. ( Hardy, at pp. 582-584.) As the court stated, the school defendants "occupied positions which would ordinarily embrace duties relating to the investigation of charges which could lead to the discipline or dismissal of persons such as plaintiff, and it is not claimed that the school defendants were without authority to investigate and prosecute charges made against employees." ( Id. at p. 583.)
As noted in Shoemaker, supra, 2 Cal.App.4th at page 1422, footnote 4, section 821.6 was enacted in 1963 as a codification of this common law immunity.
In Kemmerer, a county employee was accused of using his position and access to confidential information to harass a county resident who owed him money. ( Kemmerer, supra, 200 Cal.App.3d at p. 1430.) After an investigation and administrative proceeding, the employee was terminated. ( Id. at p. 1431.) He was later reinstated by the county civil service commission. ( Ibid.) He thereafter asserted various tort and contract claims against the employees involved in his termination. ( Id. at pp. 1431-1432.) As to the tort claims, the Court of Appeal held that "[t]he investigation, the preliminary notice and the proceedings before the civil service commission come within the scope of an `administrative proceeding' as that term is used in Government Code section 821.6. It follows that pursuant to section 821.6, [the defendants] are immune from tort liability for any acts done to institute and prosecute the disciplinary proceeding." ( Id. at p. 1437.)
In our view, Ross's tort claims also fall "under the general rubric of malicious prosecution" ( Shoemaker, supra, 2 Cal.App.4th at p. 1423), as discussed in Hardy, Kemmerer, and Shoemaker. The gravamen of these claims is that, acting out of discriminatory and retaliatory motives, BART employees initiated and prosecuted administrative proceedings to discipline or discharge Ross based on accusations they knew to be false. Such acts by employees are immune from liability under section 821.6, and therefore BART is immune from liability under section 815.2.
Ross seeks to distinguish Hardy, Kemmerer, and Shoemaker on the ground that all three cases were predicated on the liability of employees acting within the scope of their employment under section 815.2, subdivision (a). Ross contends that section 815.2 is inapplicable to FEHA-based Tameny causes of action for discrimination alleged against public employers because the case law has held that only the employer may be sued under that theory, not employees. (See, e.g., Reno v. Baird (1998) 18 Cal.4th 640, 663-664 [ 76 Cal.Rptr.2d 499, 957 P.2d 1333] [since individual supervisor could not be sued for discrimination under FEHA, she also could not be sued individually for wrongful discharge in violation of public policy].) This argument fails for two reasons. First, the two tort causes of action in issue each involve claims of retaliation as well as age and disability discrimination. In contrast to discrimination claims, retaliation claims under FEHA may be asserted against individual employees. (See § 12940, subd. (h); Taylor v. City of Los Angeles Dept. of Water Power (2006) 144 Cal.App.4th 1216, 1237 [ 51 Cal.Rptr.3d 206].) Thus, the premise of Ross's argument, that the first and fourth causes of action expose BART to no potential for derivative liability, is false. Second, these causes of action allege nonstatutory, common law torts for which BART's liability, if any, can only arise vicariously. (§ 815, subd. (a); Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185 [ 7 Cal.Rptr.3d 552, 80 P.3d 656] [public entity tort liability requires a statutory basis].) Unless BART is vicariously liable for the common law tort of wrongful discharge or discrimination in violation of public policy under section 815.2, it has no liability at all by virtue of section 815.
Relying exclusively on City of Moorpark, supra, 18 Cal.4th 1143, a federal district court recently held in Scott v. Solano County Health Social Services Dept. (E.D.Cal. 2006) 459 F.Supp.2d 959 that a common law wrongful discharge claim against a public agency was not barred by section 815, subdivision (a) or any other statutory immunity. However, since City of Moorpark did not in fact consider or decide the issue of public entity immunity, and Scott offers no independent analysis of the relevant governmental immunity statutes, we do not find the Scott opinion persuasive on this point.
Summary adjudication was properly granted on Ross's first and fourth causes of action for wrongful termination in violation of public policy.
B. FEHA Age Discrimination Claim Ross contends that the trial court erred in finding that he failed to come forward with a prima facie showing of age discrimination in response to BART's motion. (See Horn v. Cushman Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805-806 ( Horn) [to survive a summary judgment motion, the employee must first establish a prima facie case of age discrimination].) "[A] prima facie case of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person." ( Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003, fns. omitted ( Hersant).) The trial court found in this case that Ross failed to come forward with sufficient evidence of a discriminatory motive. However, we are not bound by the trial court's stated reasons or rationales. ( Horn, supra, 72 Cal.App.4th at p. 805.) In our view, summary adjudication of Ross's second cause of action was proper because he failed to show that an adverse employment decision was taken against him. 1. Constructive Discharge As an initial matter, Ross failed to create a triable issue of material fact as to whether he was constructively discharged from his position. As stated in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 ( Turner) at page 1246: "[A]n employee cannot simply `quit and sue,' claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job. . . . The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee." (Italics added.) For there to be a constructive discharge, the employer must make the working conditions so intolerable for the plaintiff that a reasonable person in his position would have no rational alternative except to quit. ( Id. at pp. 1247-1248.) In addition, the plaintiff must prove that the conditions were so obviously egregious that "a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." ( Id. at p. 1251.) The facts here simply do not rise to the level of a constructive discharge. In Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628 ( Gibson), the Court of Appeal held, in light of Turner that — as a matter of law — "a demotion with a cut in pay does not create the kind of aggravated or intolerable circumstances that would compel a reasonable employee to quit his job." ( Gibson at p. 1635, citing Turner, supra, 7 Cal.4th at p. 1247.) Here, Ross resigned rather than have to serve a 45-day suspension without pay, even though he was entitled to arbitrate the suspension and would have received a full back-pay award if he prevailed in it. As BART correctly points out, if a demotion with a cut in pay does not satisfy the Turner standard, neither does a 45-day suspension with potentially no loss in pay. Ross tries to avoid the implications of Turner and Gibson, by arguing that BART inflicted a series of humiliating actions on him, including baseless accusations, a hearing held in his absence, a notice that he was to be terminated from employment, and a refusal to postpone the eventual 45-day suspension sanction until after the arbitration. According to Ross, these events reasonably caused Ross to believe that "BART was unlikely to welcome him back." In our view, this series of events did not result in working conditions "so intolerable or aggravated" that Ross reasonably felt compelled to resign. ( Turner, supra, 7 Cal.4th at p. 1251.) BART's decision to terminate Ross lasted for approximately three weeks. Under its collective bargaining agreement with Ross's union, BART's right to actually complete the termination was never in fact established. BART initially notified Ross by letter dated February 25, 2002 that he was to be terminated effective that date. By letter delivered to BART the same day, Ross's union representatives notified BART that the union would challenge the termination under grievance procedures providing for an "[i]mmediate [a]rbitration." The letter stated, and BART apparently concurred, that Ross was entitled to a 14-day stay of the termination under the collective bargaining agreement. On March 21, 10 days after the effective date of Ross's termination, BART formally withdrew its termination notice and offered Ross a 45-day suspension instead. Even the reduced disciplinary action was subject to the outcome of an arbitration. Had Ross agreed to serve the suspension, and then prevailed in the arbitration, he would have been entitled to be made whole for any loss of pay and benefits. Any stigma associated with the suspension would presumably also have been erased if he had proven to a neutral fact finder — as he insists he could have — that the charges against him were baseless. Assuming that Ross wanted to remain on the job, we do not find that these conditions were so onerous and extreme that a reasonable person in his position would have felt compelled to resign rather than submit to them. Accordingly, we find no triable issue of material fact as to whether Ross was constructively discharged. Assuming no constructive discharge, Ross argues in the alternative that he can sustain an age discrimination claim under FEHA limited to the emotional distress damages he alleges he incurred as a result of BART's short-lived decision to discharge him. He cites Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235 ( Knickerbocker), in which the Court of Appeal allowed a police officer to proceed with a tort claim for emotional distress damages arising from his improper firing, even though it disallowed any claim for damages based on a later civil service commission order that he be demoted instead of fired from his position. ( Id. at pp. 239, 245.) Knickerbocker is not persuasive here. First, the claim allowed was a common law tort claim, not a FEHA claim. Further, the sole issue before the Court of Appeal in Knickerbocker was whether all of the officer's claims were barred by his failure to seek administrative mandamus review of the civil service order. ( Id. at p. 245, fn. 3.) The court did not purport to decide any other challenge to the plaintiff's causes of action. ( Ibid.) Knickerbocker does not assist us in deciding whether a decision to terminate an employee that is rescinded three weeks after it is announced rises to the level of an adverse action for which emotional distress damages may be recovered under FEHA. Ross correctly points out that "adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion" can support a FEHA claim. ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055 ( Yanowitz).) On the other hand, FEHA has no application to "[m]inor or relatively trivial adverse actions . . . that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee [and] cannot properly be viewed as materially affecting the terms, conditions, or privileges of [his] employment." ( Id. at p. 1054.) In our view, BART's quickly-abandoned decision to discharge Ross falls into the latter category. Ross's termination was rescinded 10 days after it went into effect, in response to a union grievance delivered on the same day BART gave notice of the termination. In reality, the decision to discharge Ross never even reached the stage of finality. Until rescinded, it was simply one possible outcome among others — including complete exoneration — of the grievance procedure initiated by the union on Ross's behalf. Considering the brief period that it was in effect, and its inherently tentative quality, we cannot hold that BART's initial determination to discharge Ross had a "substantial and detrimental effect on [his] employment" ( Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 512) or that it would have "materially affect[ed] [his] job performance or opportunity for advancement." ( Yanowitz, supra, 36 Cal.4th at p. 1054.) As a matter of law, Ross's evidence failed to create a triable issue of material fact as to whether he was constructively discharged or may claim emotional distress damages under FEHA based on BART's initial decision to terminate his employment. 2. Evidentiary Issues Ross contends that the trial court prejudicially erred in overruling his objections to paragraphs 8 and 10, and a portion of paragraph 12 of Tamar Allen's declaration. He argues that had these objections been sustained, there would have been no admissible evidence of a legitimate, nondiscriminatory reason for the actions taken against him, and he would have carried no burden of producing evidence to defeat BART's summary adjudication motion. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 360 [only when the employer has set forth admissible evidence of nondiscriminatory reasons for its decision does the burden shift to the plaintiff to show the existence of a triable issue over whether the termination was actually made on a prohibited basis].) Paragraph 8 states: "After investigating the matter, I concluded that Armstrong, Machado and Twigg had claimed to be sick when in fact they were not, and had done so to avoid having to wear their orange vests and in protest of that policy." Ross objected to paragraph 8 on the ground that it could only be admitted as a statement of Allen's belief, and not for the truth of the facts asserted because "the underlying facts are not presented." Paragraph 10 states: "In the course of investigating the work stoppage, I interviewed [Ross] because he was on duty at the time. Based upon my interviews with [Ross], I concluded that he had in effect, allowed his subordinates to walk off the job rather than to comply with the orange vest policy. This was based on, among other things, my review of the taped conversation between [Ross] and Mr. Machado, wherein Mr. Machado specifically advised [Ross] that he would simply go home rather than comply with the orange vest policy. [Ross's] response to Mr. Machado's stated intention to walk off the job rather than comply with the orange vest policy was `okie-doke.' Attached hereto as Exhibit 2 is a true and correct copy of the transcription of the taped conversation that I reviewed as part of my investigation." Ross objected that the assertion in the second sentence was only admissible to show what Allen had "concluded," but was inadmissible to show that her conclusion was correct. He further objected to the last three sentences describing the other stated basis for her conclusion — the taped conversation with Machado — because Allen did not make the recording or the transcript, and neither had been authenticated as being accurate and complete. Paragraph 12 stated: "Based upon [Ross's] statements to me and other evidence gathered in the course of my investigation, I decided to charge [Ross] with dereliction of duty and other violations of BART rules and regulations with a recommendation that he be discharged. My decision to do so was based solely on the information obtained in the course of my investigation of the December 20 work stoppage and had nothing whatsoever to do with [Ross's] age." (Italics added.) Ross objected to the italicized sentence on the ground that the charging letter was signed by Ross's immediate supervisor, Kwok Chan, and therefore Allen lacked personal knowledge of the reasons why Chan decided to charge him. Ross's objections are not well taken. The issue in an employment discrimination case is not whether the employer's action was wrong, mistaken, or unwise, but whether it was motivated by improper reasons. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 75; Hersant, supra, 57 Cal.App.4th at p. 1005.) For purposes of its summary judgment motion, BART did not claim that Ross's alleged dereliction of duties on December 20, 2001 or asserted violation of other BART rules were undisputed facts. The motion merely asserted that Allen conducted an investigation and that, based on her investigation, she determined that Ross had been derelict, and recommended that he be discharged. Her declaration averred that she had personal knowledge of the investigation and that she made the recommendation. That satisfied BART's initial burden of proof for summary judgment purposes. Whether Allen could testify from personal knowledge about the events of December 20, and whether the tape she listened to was reliable evidence, were not relevant to the grounds for the motion, and were not part of BART's initial burden. That Ross's immediate supervisor actually signed the letter notifying him of the charges in no way contradicts Allen's sworn statement that she personally conducted the investigation and decided on the charges. The trial court committed no prejudicial error by overruling Ross's evidentiary objections. Summary adjudication was properly granted on Ross's second cause of action for age discrimination under FEHA. C. Disability Discrimination Under FEHA Ross contends that his notation on the FEHA complaint that he was "36.5% disabled" created a triable issue of material fact over whether he exhausted his administrative remedies as to BART's alleged failure to accommodate his disability. We disagree. It is a jurisdictional requirement for bringing an action under FEHA that the plaintiff must exhaust his administrative remedies. ( Martin v. Lockheed Missiles Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The purpose of this requirement is to provide notice to the agency charged with enforcing FEHA to enable it to investigate and take action on a cognizable claim. ( Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612-1613.) "To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.]" ( Martin v. Lockheed Missiles Space Co., at p. 1724, italics added.) The administrative complaint form that Ross submitted to DFEH allowed a claimant to specify the particulars of his claim by placing check marks next to the applicable entries in two lists — a list of possible adverse employment actions and a list of possible discriminatory motives covered by FEHA that were attributable to the employer. Ross placed check marks next to entries indicating that he was "fired" and "harassed" because of his "age" and "association." He could have, but did not, check other spaces on the two lists that would have indicated that he was "denied accommodation" because of a "physical disability" or a "mental disability." Simply inserting a notation that he was "36.5% disabled," without checking the spaces provided to state a failure to accommodate claim, did not as a matter of law provide adequate notice of such claim to DFEH. Accordingly, summary adjudication was properly granted on Ross's third cause of action for failure to accommodate under FEHA.
See footnote, ante, page 1507.
The trial court stated: "In addition to his age, the sum total of [Ross's] evidence on his age discrimination claim is that his immediate supervisor admitted that [Ross] `did nothing wrong' in connection with the December 20, 2001 incident, and that [Ross's] younger co-manager was promoted a week after the incident, even though his derelictions were indistinguishable from those of [Ross]. Such facts, the Court concludes, are insufficient to demonstrate any discriminatory motive based on age." As BART concedes, evidence that Ross was replaced by a significantly younger person is sufficient to support a prima facie inference of discriminatory motive under Hersant. Although BART now argues that Ross failed to come forward with competent evidence that he was replaced by a significantly younger worker, it did not raise that issue in the trial court, and we will not consider it here.
Ross also mentions an internal draft settlement offer prepared by BART in January 2002 that contained a signature line for Ross on which an unidentified BART employee had sarcastically typed in the words "Resident Idiot" as Ross's job title. However, this document was obtained in discovery and was not seen by Ross until long after his resignation. It adds no weight to his argument that BART was unlikely to welcome him back, especially since the same document reflects that BART was in fact offering to take him back after a 30-day suspension.
Tamar Allen was a BART manager with responsibility over, among other things, the work performed by mainline technicians.
The trial court sustained Ross's objection to the lack of proper foundation for the transcript of the taped conversation between Ross and Machado, and excluded the transcript from evidence.
See footnote, ante, page 1507.
We reject Ross's suggestion that BART was required to come forward with affirmative evidence that DFEH did not investigate the claim alleged in his third cause of action. On this point, we also deny BART's request for judicial notice of the right-to-sue letter issued to Ross.
III. DISPOSITION
The judgment in favor of BART is affirmed.Stein, Acting P. J., and Swager, J., concurred.
A petition for a rehearing was denied February 20, 2007, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied April 18, 2007, S150717. George, C. J., did not participate therein. Kennard, J., and Moreno, J., were of the opintion that the petition should be granted.