Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378715. Ralph W. Dau, Judge.
Snyde, Dorenfeld, David K. Dorenfeld and Steven C. DeVore for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, and Paul L. Winnemore, Deputy City Attorney, for Defendant and Respondent.
CHANEY, J.
Plaintiff Carol Sligh (Sligh) appeals from a judgment entered following a successful motion for summary judgment or summary adjudication by defendant City of Los Angeles Police Department (the Department), in her action for wrongful discharge in violation of public policy under the Unruh Civil Rights Act (Civil Code § 51), and under the Fair Employment and Housing Act, Government Code sections 12920, 12921, and 12940 (FEHA). Sligh’s action claimed harassment, discrimination, and retaliation based on her race, national origin, religion, and disability. She contends that the trial court erroneously ruled that she had failed to exhaust her administrative remedies with respect to her claims respecting nationality and disability; that the trial court erroneously failed to address her claims of harassment; and that it erroneously ruled that she had failed to raise triable issues as to whether she had been subjected to an adverse employment action. We affirm the judgment.
BACKGROUND
Sligh, a Black English-born female police officer with the Department since about 1990, sued the Department alleging wrongful termination of her employment in violation of public policy under the Unruh Act (Civil Code § 51), and under the Fair Employment and Housing Act, Government Code sections 12920, 12921, and 12940 (FEHA). Because plaintiff’s appeal concerns only the trial court’s treatment of her claims arising under the FEHA, we confine our discussion to those claims. And because this is an appeal from a grant of summary judgment, we recite the facts from the plaintiff’s point of view.
Sligh was transferred in 2005 to the Department’s City Attorney Liaison Unit, where she claims she was subjected to discrimination and harassment on account of her race, religion, disability, and nationality, and to retaliation for reporting harassment directed toward herself and co-workers. Shortly after her arrival at the Liaison Unit, Sligh reported to senior personnel within the Department about a number of incidents that she understood to constitute unlawful harassment and discrimination directed toward a co-worker, including one incident involving a stuffed animal that had been abused and placed on a file cabinet with a rope around its neck. A psychologist contacted by the Department concluded (among other things) that the incident had apparent “racial connotations.” According to Sligh, the situation did not improve following her report, and the co-worker (who also had reported the incident) was transferred to another position.
During the 10 months following her report of that incident, Sligh claims she witnessed and was the brunt of a number of other incidents of discrimination and harassment in the office. She claims that as a result she was subjected to actions that were demeaning, and that greatly increased her workload and denied her the flexibility of hours and working conditions that her co-workers enjoyed, amounting to adverse employment actions. She was ostracized and laughed at by co-workers, her routine requests to her co-workers and supervisors for assistance with her workload were denied, and she received indications from co-workers that they, too, were concerned about becoming victims of retaliation if they spoke with her.
Sligh testified that she was derided on a few occasions for her British nationality and accent, for example with questions whether she spoke English or needed a translator. Her African-American supervisor on occasion publicly asked whether she was “really a sister,” and whether she was “from the hood.” She overheard a comment by someone in the office that she believed exhibited racial discrimination toward Blacks, that “a Black male walking down the street, that’s probable cause.” On a few occasions she heard derogatory and offensive references to her Born-Again Christian religion. She received comments that she was “a cripple,” which she understood as discriminatory references to a neurological condition that limited the use of her right hand. And her supervisor threatened that she might be transferred to patrol duty--which she understood to be further retaliation and discrimination because her hand disability would prevent her from performing that duty.
Her superiors did not take appropriate action in response to these incidents, Sligh claims, but instead subjected her, and another employee who had complained, to retaliation and adverse employment actions. These actions, she contends, were unlawful and created a hostile and intolerable work environment. Sligh claims that her health deteriorated as a result of these conditions. After exhibiting serious physical symptoms over a period of time, her physician placed her on long term medical leave in July 2006.
Sligh filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) on June 29, 2007, alleging harassment and discrimination based on race or color, and “retaliation for reporting employee misconduct and unlawful behavior (harassment and discrimination) toward a co-worker.” She received a right-to-sue notice from the DFEH. Soon afterward she filed an amended administrative complaint adding a claim of discrimination and harassment based on her religion. The DFEH provided a notice of filing of the amended closed discrimination complaint on July 11, 2007.
Sligh filed this suit for wrongful discharge in October 2007. The Department moved for summary judgment, or alternatively, summary adjudication. The motion challenged Sligh’s right to recover under the Unruh Act. And it challenged Sligh’s right to recover under the FEHA on grounds (among others) that her administrative complaints to the DFEH had identified only claims of discrimination, harassment, and retaliation based on her race and religion, therefore failing to exhaust her administrative remedies as to claims based on her gender, nationality, or disability; that Sligh’s evidence did not show actions by the Department that materially affected the terms, conditions, or privileges of her employment sufficient to constitute adverse employment actions; and that the retaliatory acts shown by the evidence were insufficient to establish a hostile working environment.
The trial court held the Unruh Act does not apply to the conduct alleged by Sligh. Sligh does not challenge the judgment on that ground, and we do not discuss it.
The trial court held that Sligh had failed to exhaust DFEH remedies with respect to claimed discrimination or retaliation based on gender, nationality, or disability; that Sligh’s evidence failed to make a prima facie showing that she suffered adverse employment action; and that the evidence was insufficient to show that the workload issues on which Sligh’s showing relied constituted retaliation for her complaints to her superiors about harassment directed toward herself or co-workers. The ruling did not expressly address the sufficiency of the evidence to make a prima facie case under the FEHA for harassment based on race or religion.
Sligh’s appeal from the summary judgment ruling, filed November 25, 2008, was validated and rendered timely by the trial court’s January 20, 2009 entry of judgment based on its earlier order granting summary judgment. (Cal. Rules of Court, rule 8.104(e)(2).) She appeals from the trial court’s ruling excluding her claims of discrimination, harassment, and retaliation based on her national origin and her disability; from its ruling that her claims of discrimination and retaliation failed to show that she suffered an adverse employment action; and from its order granting summary judgment, despite its failure to evaluate her claims of harassment.
We conclude the trial court correctly determined that Sligh’s evidence is insufficient to raise triable issues as to whether the discrimination and retaliation she alleges resulted in an adverse employment action under the FEHA, and that her harassment claims necessarily fail upon the same grounds. Therefore summary judgment is appropriate without regard to whether she exhausted her administrative remedies in the DFEH with respect some or all of her claims. On these grounds we affirm the judgment.
DISCUSSION
Code of Civil Procedure section 437c, subdivision (a) authorizes summary judgment if the action cannot be sustained. “The motion for summary judgment shall be granted if all the [moving] papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving party meets that burden if it demonstrates that “[o]ne or more elements of the cause of action cannot be separately established....” (§ 437c, subd. (o)(1); Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) If the Department’s showing negates any essential element of the plaintiff’s case, the existence of factual conflicts concerning other aspects of the case will not prevent summary judgment. (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214.)
We review the summary judgment ruling de novo, resolving any evidentiary doubts and ambiguities in Sligh’s favor. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
Claims of retaliation
To be entitled to maintain her FEHA claims for discrimination and retaliation, Sligh’s evidence must be sufficient to show that she was subjected to an “adverse employment action” as a result of the Department’s wrongful acts of discrimination, retaliation, and harassment. (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-512; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454.) The term “adverse employment action” is “used as a shorthand description of the kind of adverse treatment... that will support a cause of action under an employment discrimination statute....” (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1035-1036.) That showing therefore is an essential element of Sligh’s claims under FEHA. An employer’s action may be found to constitute an “adverse employment action” if, considering the totality of the circumstances, the evidence is sufficient to support a finding that the employee has been subjected to treatment that materially affects the terms and conditions of her employment. (Yanowitz v. L’Oreal, supra,36 Cal.4th at p. 1036.) The trial court concluded that Sligh’s evidence failed to identify treatment that materially affected the terms and conditions of her employment sufficient to constitute an adverse employment action.
The same adverse employment actions are prohibited by both subdivision (a) [discrimination in compensation, terms, conditions, or privileges of employment], and subdivision (h) [retaliation for claims of discrimination] of Government Code section 12940. (Yanowitz v. L’Oreal, supra, 36 Cal.4th at pp. 1050-1051 (“we conclude that the term ‘otherwise discriminate’ in section 12940(h) should be interpreted to refer to and encompass the same forms of adverse employment activity that is actionable under section 12940(a)”).) And although the definitional distinction between harassment and discrimination is significant in cases involving for example issues of respondeat superior (e.g. Reno v. Bird (1998) 18 Cal.4th 640, 646 [distinguishing harassment from discrimination]), the issues raised by this appeal require no such distinction.
As the trial court noted, Sligh “does not claim that she was terminated, suffered a poor performance review, or was denied a promotion” as a result of discrimination, harassment, or retaliation. The circumstances she identifies as acts of retaliation could be found to have greatly increased her workload and worsened her working conditions, but they cannot be said to have materially affected the terms or conditions of her employment. She claims that soon after she was transferred to the Liaison Unit she reported hearing about the discriminatory harassment that apparently had been directed toward her co-worker; and soon afterward the co-worker was transferred to another position, which increased Sligh’s workload. She claims that her requests for assistance with her workload went unheeded and were followed by further workload increases. She claims that the duties of some others in her unit were less time-sensitive or were out of the office, affording them benefits (such as flexibility of hours and days off) far more desirable than hers. And she claims that others -- including her supervisors -- recognized that excessive workloads, as well as bad working conditions, rudeness, and interpersonal conflicts were common in the unit. But Sligh’s evidence does not purport to show that her initial assignment to front desk duty was itself either retaliatory or the result of unlawful discrimination; and she does not present evidence (beyond her own conclusion) that her co-worker’s transfer (leading to her increased workload) resulted from harassment, discrimination, or retaliation directed toward either Sligh or the co-worker. Nor does she contend that her assigned duties represented a demotion, that she was subjected to undeserved negative formal performance evaluations, or that any differences in her workload from that of other officers with front-desk duties resulted from discrimination, retaliation, or harassment. Indeed, the Department’s evidence -- undisputed by Sligh -- showed that the personnel shortages chronically suffered by the front desk resulted from non-discriminatory and non-retaliatory circumstances, and that they persisted even after Sligh began her leave of absence.
The trial court also held that Sligh’s evidence that her co-worker’s transfer and her increased workload followed shortly after her complaints of discriminatory conduct was adequate to raise a bare inference of retaliation, but was not sufficient to show that the inference she urged was “more reasonable or probable” than the contrary inference. (See Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482-483 [plaintiff relying on circumstantial evidence for essential element of case “must show that the inferences favorable to her are more reasonable or probable than those against her”].) Sligh does not challenge that ruling.
Claims of discrimination and harassment
To be actionable, the wrongful conduct “cannot be occasional, isolated, sporadic, or trivial”; it must constitute “a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) In order to meet her burden of proof, Sligh was required to present a prima facie showing of acts that would be not just likely to seriously affect the psychological well-being of a reasonable employee, but also that would adversely and materially affect her job performance or her opportunity for advancement. (Yanowitz v. L’Oreal, supra, 6 Cal.4th at pp. 1053-1054; Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 609-610.)
The law is violated “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘“sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.”’” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, 114 S.Ct. 367; Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 463.) In determining whether plaintiff has presented sufficient evidence to raise a triable issue of material fact, we look at the totality of the circumstances, and specifically, “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Id. at p. 464.) The “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not violate Title VII, because it would not sufficiently affect the conditions of employment. (Etter v. Verifo Corp., supra, 67 Cal.App.4th at p. 463.) “‘[M]ore than an episodic pattern of racial antipathy must be proven to obtain statutory relief.’” (Ibid.)
The incidents of discrimination and harassment that Sligh alleged included the stuffed-animal incident she had learned about soon after her arrival at the Liaison Unit, her ostracism by co-workers and their unwillingness to assist her, the overheard comment about a Black male’s presence on the street amounting to probable cause, the co-worker’s offensive comments about her religious affiliation, the teasing about her English accent and its apparent incongruity to her race, and her co-worker’s reference to her as a “cripple.” These events, occurring over a 10-month period, might well lead to anger, upset, and frustration detrimental both to Sligh and to the Department; but even considered together, these incidents -- while unquestionably offensive -- do not constitute the concerted pattern of discriminatory or harassing conduct that is required in order to satisfy Sligh’s burden of proof. They fall short of showing any frequent or pervasive discriminatory or physically threatening conduct that would be likely to have a substantial material and adverse effect on the terms and conditions of Sligh’s employment. (See Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455 [change “that is merely contrary to the employee’s interests or is not to the employee’s liking” is insufficient to support retaliation claim]; see also Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929 [ostracism by co-workers cannot constitute an adverse employment action].)
Title VII cases may be considered in interpreting the FEHA. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129-130.)
A plaintiff who cannot point to a loss of tangible job benefits must make a “‘commensurately higher showing that the... harassing conduct was pervasive and destructive of the working environment.’” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610; Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283-284.) When the wrongful conduct is not severe in the extreme, more than a few isolated incidents must have occurred in order to establish a claim based on working conditions. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150-153 [sexual harassment liability requires showing of more than a single incident that does not involve egregious conduct akin to physical assault or threat of assault]; Walker v. Ford Motor Co. (11th Cir. 1982) 684 F.2d 1355, 1359 [racial harassment consisting of repeated, continuous, and prolonged use of racial slurs and racially offensive comments, despite plaintiff’s protests]; Department of Corrections v. State Personnel Bd. (1997) 59 Cal.App.4th 131 [single incident of rape may be sufficient to establish hostile work environment liability, but no such liability attaches for single incident in which corrections officer used profane language and shook female Hispanic fellow officer by collar].) But these adverse actions by Sligh’s supervisors and fellow employees are objectively not reasonably likely to result in anything more than anger or upset; therefore they “cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment.” (Yanowitz v. L’Oreal, supra, 36 Cal.4th at p. 1054.) They therefore are not actionable.
DISPOSITION
Because plaintiff was unable to present a prima facie showing that the discrimination, harassment, and retaliation she allegedly suffered resulted in any adverse employment action by the Department, summary judgment was properly entered. The judgment is affirmed. Defendant is entitled to costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.