Opinion
G044765 Super. Ct. No. 30-2009-00328122
12-12-2011
JOHN VILLALVAZO, Plaintiff and Appellant, v. KOFAX, INC., Defendant and Respondent.
Shergerian & Associates, Carney R. Shergerian, Donal Conway, Anthony Nguyen, and Astineh Arakelian for Plaintiff and Appellant. Littler Mendleson, Julie A. Dunne and Gregg C. Sindici for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed.
Shergerian & Associates, Carney R. Shergerian, Donal Conway, Anthony Nguyen, and Astineh Arakelian for Plaintiff and Appellant.
Littler Mendleson, Julie A. Dunne and Gregg C. Sindici for Defendant and Respondent.
John Villalvazo appeals from a summary judgment in favor of his former employer, Kofax, Inc., in his sexual harassment/wrongful termination action. He contends there were material issues of fact as to all his causes of action. We find none and affirm the judgment.
FACTS
Complaint
Villalvazo's complaint alleged he was employed by Kofax from January 2003 until January 2009 as a credit analyst. He received positive evaluations and was never disciplined. His immediate supervisor was Alicia Barcellos. Hiam Mattox was another supervisor. Villalvazo alleged that during his employment, he was sexually harassed by Barcellos. In addition to generally alleging Barcellos made repeated sexual advances, Villalvazo alleged Barcellos harassed him by: (1) frequently talking to him "about sex from television reality shows[;]" (2) once commenting she would like to see Villalvazo changing his clothes; and (3) once storming into a meeting, yelling at him and making him leave the meeting. On January 14, 2009, his employment with Kofax was terminated without explanation.
Villalvazo's complaint contained causes of action against Kofax for wrongful termination in violation of public policy (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny)), and retaliation in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)), alleging he was fired because he had complained about sexual harassment. The complaint also contained causes of action against Kofax for sexual harassment and failure to prevent sexual harassment. (Gov. Code, §§ 12940, subd. (j)(1), 12940, subd. (k).)
Villalvazo voluntarily dismissed his complaint's cause of action for breach of contract. He also voluntarily dismissed the named individual defendants, Barcellos and Mattox.
Kofax's Summary Judgment Motion
Moving Papers
Kofax's separate statement of undisputed facts was supported by declarations from Barcellos and Mattox, setting forth the following facts in support of their nondiscriminatory reasons for terminating Villalvazo's employment.
Villalvazo was hired in 2003 as an accounts receivable clerk. He was an at-will employee and signed various employment documents acknowledging his at-will status. Barcellos, Kofax's Senior Credit Manager, was at all times Villalvazo's direct supervisor. Mattox, Kofax's Senior Finance Director, was Barcellos's manager. Villalvazo's job duties were to release orders from credit holds, evaluate customer accounts for credit limits, and to process any payments received from customers. It was important these tasks be performed in a timely manner. In the first year he worked for Kofax, Villalvazo received a performance review criticizing his timeliness in performing his job.
In 2008, there were several problems with Villalvazo's job performance that led to his termination. In the summer of 2008, Villalvazo volunteered for an information technology (IT) project outside the accounting department, without advising Barcellos of the time commitment and how it would affect his workload. Thereafter, the project became a distraction for Villalvazo and an excuse to not perform his assigned work. He failed to complete projects in a timely manner, was consistently late to work, began to refuse to perform more the menial or tedious tasks of his job, took long lunches during which Barcellos would have to cover for his absence, and became increasingly difficult to manage as an employee. Specific incidents included that in late September 2008, Villalvazo forwarded to Barcellos a sales agent's request made several months earlier that certain forms be filled out, in which he refused to prepare the paperwork and made disparaging comments about the sales agent. In August, September, and October 2008, Villalvazo repeatedly failed to respond to requests that certain invoices be entered in the computer system despite Barcellos's instructing Villalvazo to do so. In late October 2008, Villalvazo failed to enter a credit card transaction despite Barcellos's repeated requests that he do so. Also in late October, Villalvazo repeatedly failed to provide bank documentation for a customer's wire transfer, for which both Barcellos and Mattox reprimanded him. In November, Villalvazo neglected a customer's request that he reconcile her account balance. When Barcellos asked Villalvazo to complete the task, he responded to the customer with an e-mail saying Barcellos should have notified the customer he was busy with all his time being dedicated to a particular project called "the Unity Project." Barcellos and Mattox reprimanded Villalvazo for his unprofessional response. In late November, a customer complained that Villalvazo was not returning telephone calls about a refund on an overpaid invoice. In December and January, there were several instances in which Villalvazo failed to timely or properly process credit card charges, delaying customer's orders.
In January 2009, Barcellos and Mattox made the decision to terminate Villalvazo's employment due to his lack of follow through with customer service requests; failure to follow through with daily tasks and requests from coworkers; inability to follow through with requests for documentation and information; Barcellos's increased workload due to having to follow-up on Villalvazo's work and to perform his duties for him; and failure to respond to Barcellos's initial requests for follow-up.
Kofax also presented evidence concerning Villalvazo's office behavior. Several Kofax employees had reported to Barcellos that when she left the office (her work day ended around 2:00 p.m.), Villalvazo tended to "goof around." In 2007, he sent an e-mail to the accounting department with a "permission slip" for a "'night out'" for a husband and wife, stating the husband would be required to "'refrain from coming within one hundred (100) feet of a stripper or exotic dancer.'" He sometimes prepared photo-shopped sexually suggestive pictures of Barcellos and Mattox and visited internet dating sites on his work computer. Villalvazo sent personal e-mails from his work e-mail address "coordinating the sale of handguns, scheduling birthday parties at restaurants with "'scantily clad 20-something year old waitresses with bigger-than-life "personalities,"' joking about how Clint Eastwood needed to use the 'pull-out method,' and discussing how his relationship with his girlfriend started out as 'just a booty-call for after Judo class.'"
Kofax asserted Villalvazo could not prove sexual harassment or retaliation for complaining about sexual harassment because the alleged harassing conduct was not severe or pervasive, and Villalvazo never reported the conduct. Barcellos declared Kofax did not permit or tolerate unlawful harassment, discrimination, or retaliation. Its employee handbook, which Villalvazo received when hired, set forth the company's antiharassment policies, and Villalvazo understood he was required to report harassment to either his supervisors or the human resources department. Mattox and Barcellos both attended a sexual harassment prevention training course in June 2008.
Kofax's separate statement set forth the specific incidents Villalvazo testified about at his deposition that occurred over his six years working with Barcellos upon which he based his sexual harassment claim. (We discuss the incidents in detail below.) Villalvazo admitted he never interacted with Barcellos outside work. There was only one incident in which Barcellos physically touched him. Barcellos never sexually propositioned him, offered perks in exchange for sex, or asked for sex or sexual favors from him.
Opposition
Some Procedural Matters
Villalvazo's opposition to the summary judgment motion included his own separate statement of material facts, and was supported by his own declaration and declarations from a Kofax employee, Donnie Kim Long, and Villalvazo's girlfriend. Kofax filed extensive evidentiary objections. The trial court ruled on one. It found Long's declaration to be entirely composed of inadmissible hearsay and thus it would not consider it. Villalvazo does not challenge that ruling, and accordingly we do not discuss Long's declaration further. Otherwise, the trial court did not rule on Kofax's objections. Villalvazo cites Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517, 534 (Reid), for the proposition that where the trial court failed to rule upon evidentiary objections, we presume the objections were overruled and the trial court considered the evidence in ruling. Kofax adds that also pursuant to Reid, although the unruled on objections are deemed overruled, they are nonetheless preserved on appeal (ibid.). However, Kofax does not renew any of its unruled upon evidentiary objections on appeal.
Additionally, Villalvazo's declaration did not describe the alleged sexually harassing incidents, and his separate statement only discussed the harassment in generalities. Instead, his separate statement contained extensive citations to the pages in his deposition transcript where he testified about the specific incidents of alleged harassment and Villalvazo lodged the full deposition transcripts with the court. At the hearing, the trial court expressed annoyance that Villalvazo had not described the specific incidents in his declaration. It admonished counsel that the defense to a summary judgment motion "is not a document-drop," and it was inappropriate for Villalvazo to simply hand the court a stack of deposition transcripts. The trial court indicated it would not consider facts that were not set forth in Villalvazo's declaration. Villalvazo asserts in passing that the trial court improperly refused to consider the deposition transcripts (see Code Civ. Proc., § 2025.620 [permits use of deposition in support of or opposition to motions]), and he analyzes the case in view of the specific testimony contained in his deposition transcript. Kofax does not object, and points out that because the deposition transcripts were lodged with the trial court and before it when it ruled, and are before us in the appellant's appendix, they may be relied upon in this de novo review. An adequate foundation for the depositions was laid by a declaration from Villalvazo's attorney they were true and correct copies. We will therefore consider the cited deposition testimony in our review.
Villalvazo's Evidence
In Villalvazo's declaration, he largely disputed Kofax's claims of any deficiencies in his job performance and asserted he was a highly valued employee who was never written up or reprimanded. In August 2008, he was specifically asked by Mattox to become involved in a large project called the Unity Project. His participation required him to attend training programs and to teach the accounting department how to work the new computer system. Barcellos was assigned all of Villalvazo's regular job duties and Mattox told him to not respond to e-mails as "100% of [his] responsibilities and efforts would need to be put into the [U]nity [P]roject . . . ." Villalvazo denied Kofax's assertions regarding his personal conduct in the office, i.e., he denied using his office computer for personal purposes, and declared the photo shopping of pictures was done at Barcellos's or Mattox's request and did not involve anything sexually suggestive.
As for sexual harassment by Barcellos, Villalvazo's declaration stated only that "Barcellos on numerous occasions made sexually suggestive attempts toward me, but each time I turned down her suggestions, and because of this she became more and more aggressive and retaliatory toward me in the workplace. I complained to Kim Long, the controller, and to Rosie Yepes about Barcellos's treatment, but I was afraid of being retaliated against by . . . Mattox or others in management positions if I complained about . . . Barcellos's improper behavior—especially because . . . Mattox and . . . Barcellos were very close friends." Villalvazo also stated that about one week before being fired, he had put in a vacation request. When Villalvazo mentioned to Barcellos that his girlfriend was going with him, "This really shocked [Barcellos], and she seemed very surprised and concerned that I was going with my girlfriend."
In his separate statement, Villalvazo cited to deposition testimony concerning the specific incidents of harassment. We detail the incidents.
1. Sexual Harassment
Villalvazo and Barcellos sat in cubicles next to each other. In 2003, a week after being hired, while Villalvazo was at his desk, Barcellos leaned against his shoulder, and put her hand over his on his computer mouse to show him something on the computer, and pressed her body against his back. Villalvazo was uncomfortable with the contact and pulled his hand away, but never complained or reported the incident. It was the only time Barcellos touched him.
Villalvazo frequently received "Edible Arrangements" fruit baskets at work from a girlfriend and he typically put them in the common area to share. Once, Barcellos grabbed the gift card, which was signed "Love, Monica," and read it aloud, and then angrily demanded to know who sent the gift. Villalvazo would not tell her. Barcellos later boasted to the accounting department that she called Edible Arrangements to get the sender's name. Villalvazo was embarrassed but never complained to anyone about the incident.
Barcellos liked to discuss current popular television shows she was watching. Once, she described for Villalvazo a scene from the television show "Joe Millionaire," in which she said the star's date "'was giving him a blow job.'" Villalvazo was shocked and embarrassed; Barcellos asked said, "'[D]id I embarrass you?'" and laughed. Another time Barcellos told Villalvazo about an episode of "Desperate Housewives," in which a character was having an affair with a high school boy and they took baths together. When Villalvazo tried to go back to work, Barcellos kept talking to him. Once in 2005 or 2006, Barcellos was talking about the television show "Dancing With the Stars," and told Villalvazo he should watch a YouTube video showing one of the dancers "'almost topless'" after she ripped her dress strap. Barcellos later called Villalvazo to her desk where she was playing the video clip and she asked Villalvazo, "'Do you like her body? Wow, isn't she amazing?'" Sometime during the next season of the same show, Barcellos insisted that Villalvazo watch a video clip of one of the dancers and asked Villalvazo if he liked the dancer's body. Villalvazo never complained to anyone about the incidents.
At a company sponsored health fair, Villalvazo's chiropractor had a booth. Villalvazo overheard someone say, "'Doesn't [Villalvazo's] body look great?'" He turned and saw Barcellos talking to the chiropractor. Villalvazo felt very uncomfortable, but he never complained to anyone at Kofax.
Once Barcellos told Villalvazo she was attending a bachelorette party for a mutual acquaintance who was getting married for the second time. Barcellos mentioned that at the woman's first bachelorette party, they took some guys to their hotel room, "'[a]nd I'm not going to tell you who slept with them,'" by which Villalvazo thought Barcellos was suggesting she had slept with one of the men. Villalvazo did not complain to anyone at Kofax about the incident.
Once in 2006, Villalvazo and Barcellos were discussing that Villalvazo liked to play golf. Barcellos said she could not play golf because her breasts got in the way. As she spoke Barcellos, who was wearing a low cut top, squeezed her arms together emphasizing her breasts, and mimicked swinging a golf club while looking at Villalvazo and then down at her breasts. Villalvazo did not report the incident.
In late 2006, Barcellos told Villalvazo about going to a spa weekend with her boyfriend. She reported that she and her boyfriend had nude full-body massages. Barcellos then touched herself as if she was getting a massage, and made "ooh" and "aah" sounds. Villalvazo said, "'I'm glad you enjoyed yourself,'" and went back to work. He never mentioned the incident to anyone at Kofax.
Once in late 2007, Villalvazo was sitting in his cubicle when he noticed Barcellos staring at his crotch. When Barcellos appeared to realize Villalvazo had caught her staring, she smiled and went back to her cubicle. Villalvazo was embarrassed but never mentioned the incident to anyone at Kofax.
On December 31, 2008, Villalvazo's girlfriend brought him clothes he could change into before going out. When Barcellos was alone with her, she commented, "'I want to be in the room when [Villalvazo] changes into that.'" After Villalvazo returned, she asked Villalvazo if he had thanked his girlfriend, and said, "'Because you don't appreciate the women in your life.'"
In 2008, Yepes was hired in the IT department. She and Villalvazo became friends and shared groceries for lunch at work. Barcellos started referring to Yepes as Villalvazo's "office wife." Villalvazo told Yepes about the comment but no one else.
Once Barcellos told Villalvazo that she had worked at a restaurant where she had to wear very tight, short dresses. She used her hands to indicate how short the skirts were. Villalvazo did not report the incident to anyone at Kofax.
Once Barcellos asked a coworker if he had tattoos and, when he mentioned he had a dragon tattoo on his chest, Barcellos asked him to show it to her. The coworker undid one or two shirt buttons showing part of the tattoo and Barcellos asked to see more. The man asked, "'Do you want me to take off my shirt here?'" and Barcellos said, "'Yes.'" The man walked away. Villalvazo never complained to anyone about the incident. The coworker in question submitted his own declaration stating he could not recall the incident but would not have considered it inappropriate.
Whenever a particular male employee who worked in the warehouse walked past Barcellos's cubicle to make a delivery, Barcellos would make a growling or moaning noise. When the man delivered something to Barcellos, she would ask, "'Do you have a big package for me?'" and giggle. When Barcellos had to sign for a delivery, she would snuggle close to the man and make purring, growling, or moaning sounds of a sexual nature Villalvazo could overhear. It made him feel awkward, but he never talked to anyone at Kofax about it.
2. Other Harassment
In addition to the acts of alleged sexual harassment, Villalvazo testified in his deposition about other acts of harassment by Barcellos.
In early 2008, Villalvazo was at an IT meeting at the request of Yepes and another IT employee. Villalvazo had not told Barcellos he was going to the meeting because she was not at her desk at the time. Barcellos showed up pacing in front of the conference room, then opened the door and asked him to step out. She yelled at him and said she had to know where he was at all times and he needed her approval to get involved in any project.
Again in early 2008, Villalvazo had stopped to talk to Long and another employee about a work-related matter when he returned from lunch. Barcellos yelled at Villalvazo for not returning to his desk immediately after lunch and threatened to write him up.
In the spring of 2008, a sales representative called Villalvazo after leaving a voice mail message for Barcellos about how to check a customer's credit status on a large transaction so as to avoid a hold on the order. Villalvazo made some suggestions. Barcellos got in, returned the sales representative's call, and learned she had talked to Villalvazo. Barcellos got angry and yelled at the sales representative that, "'[Villalvazo] doesn't make up the rules; I make up the rules; I am the credit manager; everything that [Villalvazo] told you is absolutely wrong.'" Barcellos then called Villalvazo into the conference room and yelled at him. Everyone could hear her and Villalvazo was very upset.
Once Barcellos picked up Villalvazo's cell phone, scrolled through the menu, and clicked on the photographs icon. Villalvazo asked her not to and she ignored him until he removed the phone from her hand.
Villalvazo testified in his deposition that he told Long and Yepes about Barcellos's harassment, but he could not remember anything specific he told them. Villalvazo testified Yepes told him a job under her supervision might be opening soon and if she could get approval, she would give him the job.
Villalvazo testified at his deposition that Barcellos did not like his working on projects for other departments, or that others came to him directly for help. After Barcellos pulled him out of the meeting and yelled at him, Villalvazo was shunned at work, as people were hesitant to ask him for help.
Villalvazo testified he was afraid to confront Barcellos because she was very aggressive and was close friends with Mattox. He was afraid to report Barcellos's harassment of him because of her frequent angry outbursts, and he feared retaliation. Villalvazo believed Barcellos made things difficult for an IT employee she disliked, and Barcellos once told Villalvazo she wanted to "screw over" her son's father, with whom she was in a custody battle. Villalvazo understood he was supposed to report harassment to human resources but testified he did not because there were no men in the human resources department so there was no one in the department with whom he would have felt comfortable talking. Additionally, Villalvazo testified that when he was hired, the human resources employee who conducted his orientation mentioned that she was friends with Mattox, who in turn was friends with Barcellos. Villalvazo testified he could not complain to Mattox because she and Barcellos were friends. Mattox was present when Barcellos said she had called Edible Arrangements to find out who sent Villalvazo the gift baskets, and instead of reprimanding Barcellos, Mattox just laughed. Ruling
The trial court granted Kofax's motion for summary judgment. It ruled Villalvazo's declaration failed to raise a material issue of fact as to sexual harassment. Additionally, Villalvazo had produced no evidence he was terminated because he had complained about harassment.
DISCUSSION
A. Summary Judgment Standard of Review
"Summary judgment is appropriate only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. [Citation.] . . . A defendant moving for summary judgment . . . must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. [Citation.] The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action. [Citation.] If the defendant meets this burden, the burden shifts to the plaintiff to set forth 'specific facts' showing that a triable issue of material fact exists. [Citation.] [¶] We review the trial court's ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. [Citation.] We will affirm an order granting summary judgment . . . if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons. [Citations.]" (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 119-120.)
B. Sexual Harassment Causes of Action
We begin with Villalvazo's sexual harassment causes of action under the FEHA. Two different employer obligations are implicated here: the duty to not sexually harass an employee, and the duty to take reasonable steps to prevent workplace harassment from occurring. Villalvazo alleged causes of action for both.
The FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (Gov. Code, § 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039 (State Dept. of Health Services).) Government Code section 12940, subdivision specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . An entity shall take all reasonable steps to prevent harassment from occurring. . . ." When workplace sexual harassment is by a nonsupervisory coemployee, a negligence standard applies—the employer is liable if it knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action. (Gov. Code, § 12940, subd. (j)(1).) When the workplace sexual harassment is by a supervisor, the employer is strictly liable. (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042.)
"Sexual harassment can consist of verbal communications, such as asking for a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2011) § 15.90, p. 1447; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).)
California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462, 464.) It is not sufficient there simply be some offensive conduct. To be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516-517.)
"[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.] [¶] [T]he evidence in a hostile environment sexual harassment case should not be viewed too narrowly: '[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." [Citation.] . . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.' [Citations.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)
"[T]o establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Moreover, "[t]o be actionable, 'a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.'" (Id. at p. 284.)
We conclude the acts of harassment alleged against Barcellos fall far short of "'establishing "a pattern of continuous, pervasive harassment" [citation], necessary to show a hostile working environment under FEHA.'" (Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 382 (Haberman).) Villalvazo testified to largely isolated incidents occurring throughout the six years he worked for Kofax under Barcellos's supervision. Many of the incidents were not ascribed to any particular timeframe. Many were not directed at Villalvazo but at others. Most involved no direct references to sex. Villalvazo admitted he never interacted with Barcellos outside of work, and she never sexually propositioned him, offered perks in exchange for sex, or asked for sex or sexual favors from him. He never reported any of the incidents.
Villalvazo claimed there was a single touching incident—in 2003, a week after being hired, Barcellos pressed up against Villalvazo as she put her hand over his on his computer mouse to show him something on the computer. He described three verbal incidents, one of which he thought was in 2005 or 2006, where Barcellos discussed recent episodes of popular prime time network television shows and either remarked on sexual content in the episode (i.e., that on one show the star had received a "blow job"; on another two characters took baths together) or in the case of the dance show, remarked on the dancers' great bodies while showing Villalvazo a video clip of the performances. Barcellos teased Villalvazo about Edible Arrangement gift baskets he received and once boasted she called the company to find out who sent the gifts. She referred to Villalvazo's coworker/friend Yepes and Villalvazo's "office wife." At a company sponsored health fair, Villalvazo overheard Barcellos ask a chiropractor, "Doesn't [Villalvazo's] body look great?" Once, Barcellos asked a coworker to show her his chest tattoo. Villalvazo recounted that in 2006, Barcellos once told him about having a nude full-body massage at a spa with her boyfriend, and she told him she did not play golf because her breasts got in the way. Once, Barcellos told Villalvazo about a bachelorette party she had attended years earlier at which some of the attendees took some men to their hotel room; Villalvazo believed Barcellos was trying to suggest she had slept with one of the men. Barcellos sometimes flirted with another male employee, asking if he "[had] a big package for me?" when the man would deliver something and making purring, growling, or moaning sounds Villalvazo could overhear. One time, Barcellos told Villalvazo's girlfriend she would like to watch Villalvazo changing into clothes the girlfriend had brought for him. Once, she described having to wear tight, short dresses at a restaurant where she worked. Once, Villalvazo caught her staring at his crotch area. If Villalvazo's allegations are true, Barcellos's workplace conduct was certainly immature and offensive, but it does not "establish conduct sufficiently severe or pervasive as to alter [his] conditions of employment and create a work environment that qualifies as hostile or abusive to [him] based on sex. [Citation.]" (Haberman, supra, 180 Cal.App.4th at p. 386.)
Haberman, supra, 180 Cal.App.4th 365, decided by a different panel of this court, is instructive. There, plaintiff, a sales representative, alleged sexual harassment by her immediate supervisor (the district sales manager), and the national sales manager, to whom the district sales manager reported. The action was largely based on incidents involving the national sales manager. There were 13 incidents occurring over a two to three-year period: defendant asked plaintiff how she managed to "[look] so pretty so early in the morning"; defendant told plaintiff about his wife's battle with cancer saying "he thought the next time around he would go for the younger ones because women in their 40s get sick"; defendant told plaintiff "a school administrator was 'hot for being an older woman'"; defendant told a customer plaintiff "was amazing and had five children with no father in the picture"; defendant "joked that his father, Richard, is referred to as 'Big Dick,' as opposed to [defendant] (whose official first name is also Richard)"; defendant told another district sales manager plaintiff was "'drop dead' gorgeous"; once while separately parking their cars at a convention, "[defendant] called [plaintiff] on her cell phone and told her that he was coming right up behind her and it felt pretty good"; defendant asked plaintiff if she was getting married; defendant told plaintiff someone else "had the 'hots' for her" and asked if she would ever go out with the [person]"; after defendant's wife passed away, he told plaintiff his grief counselor told him to not get involved in a new relationship immediately, and defendant "said he just wanted to have sex, and [he] asked [plaintiff] what she thought, whether she had any friends who just wanted to have sex, and how she knew whether anyone was good in bed; defendant conducted a role-playing training session at his house that plaintiff was required to attend during which he commented on not having "'pretty girls like you coming around here very often'"; defendant again asked plaintiff "whether she had any friends who just wanted to have sex"; and "[defendant] told [plaintiff] her that a customer's contractor had the 'hots' for her and wanted to date her." (Id. at pp. 373, 383-384.)
The Haberman court concluded the conduct did not amount to actionable sexual harassment. After discounting the relevance of two of the alleged harassing incidents—the comment plaintiff was amazing and had five children with no father in the picture, and her required participation in the role-playing training session—because they were completely nonsexual in nature, the court noted, "The undisputed evidence shows the remaining 11 instances of alleged sexual harassment constituted instances where [defendant] made brief and isolated comments to [plaintiff] over the course of a two-or three-year period. No instance of alleged sexual harassment involved any physical contact. [Plaintiff] did not allege [defendant] ever propositioned her or even asked her out on a date. The record is devoid of any evidence that [defendant] ever threatened [plaintiff] or used explicit language in her presence. Once, [defendant] made a joke to a group while giving a presentation at a meeting that his father was called 'Big Dick.' But, as discussed ante, the FEHA is '"not a 'civility code' and [is] not designed to rid the workplace of vulgarity."' [Citation.]" (Haberman, supra, 180 Cal.App.4th at p. 383.)
Villalvazo minimizes Haberman, supra, 180 Cal.App.4th 365, as being "wholly inapposite" as it involved "minor incidents" that were not sexual in nature and there was no physical contact. We disagree and find the case to be more similar than different.
Furthermore, our assessment is supported by other cases finding alleged harassing conduct too trivial or sporadic to support a sexual harassment claim. In Hughes v. Pair (2009) 46 Cal.4th 1035, 1040, defendant made several sexually suggestive comments during a telephone conversation with plaintiff. Later that night at a museum reception, defendant told plaintiff, "'I'll get you on your knees eventually. I'm going to fuck you one way or another.'" (Ibid.) The Supreme Court held the conduct was not severe or pervasive. "To be pervasive, the sexually harassing conduct must consist of 'more than a few isolated incidents.'" (Id. at p. 1048.) And, although "an isolated incident of harassing conduct may qualify as 'severe' when it consists of 'a physical assault or the threat thereof,' . . . defendant's] remark, which was made in the presence of other people attending a private showing at a museum, would not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff. [Citation.]" (Id. at p. 1049.)
In Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 126-127 (Mokler), another panel of this court concluded a county employee's sexual harassment claim against a county supervisor failed because the employee's allegations of misconduct did not establish a hostile work environment as a matter of law. "Norby's harassment of Mokler occurred on three occasions over a five-week period, and involved no physical threats. The first occurred on January 29, 2003, at an offsite budget meeting. During the lunch break, Mokler approached Norby and introduced herself. Norby asked about her marital status and called her an 'aging nun' when he learned she was not married. [¶] The second occurred on February 5, 2003, at a hotel celebration. There, Norby took Mokler by the arm, pulled her to his body, and asked, 'Did you come here to lobby me?' When she answered no, Norby[ ] responded: 'Why not? These women are lobbying me.' He told Mokler she had a nice suit and nice legs, and looked up and down at her. [¶] The third occurred on March 3, 2003, at Norby's office. Norby told Mokler she looked nice and put his arm around her. He then asked Mokler where she lived, demanding to know her exact address. Norby again put his arm around Mokler and, as he did so, his arm rubbed against her breast. When Mokler tried discussing the services provided by [her department], Norby interrupted, stating: 'Why . . . do you have to do something special for Mexicans?'" (Id. at p. 144.)
This court concluded in Mokler, supra, 157 Cal.App.4th at pages 145-146, that "these acts of harassment fall short of establishing 'a pattern of continuous, pervasive harassment' [citation], necessary to show a hostile working environment under FEHA. Norby did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler's marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby's request for Mokler's home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. Norby's derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual. [¶] Taken as a whole, the foregoing acts demonstrate rude, inappropriate, and offensive behavior. To be actionable, however, a workplace must be '"permeated with 'discriminatory intimidation, ridicule and insult,' [citation] that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"' [Citation.] The acts Mokler has alleged here are similar in scope to those found insufficient to constitute a hostile work environment in other cases. (See, e.g., Quinn v. Green Tree Credit Corp. (2d Cir. 1998) 159 F.3d 759, 768 [harasser's statement plaintiff had been voted the '"sleekest ass"' in the office and single deliberate act of touching plaintiff's breasts with papers he was holding in his hand held insufficient]; Weiss v. Coca-Cola Bottling Co. of Chicago (7th Cir. 1993) 990 F.2d 333, 337 [insufficient where supervisor told plaintiff how beautiful she was, repeatedly asked her out, tried to kiss her on three separate occasions, put '"I love you"' signs on her work area, and touched her shoulder at least six times]; Chamberlin v. 101 Realty, Inc. (1st Cir. 1990) 915 F.2d 777, 783 [five sexually motivated advances on plaintiff over a four-or five-week period held insufficient for hostile work environment].) [¶] While we do not condone Norby's improper behavior, Mokler failed to present sufficient evidence of acts '"'sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.'"' [Citation.]"
As in the foregoing cases, the incidents upon which Villalvazo bases his sexual harassment claim are insufficient to support a hostile workplace sexual harassment claim under the FEHA. Accordingly, the trial court properly granted summary judgment on the sexual harassment cause of action (Gov. Code, § 12940, subd. (j)(1)), and the failure to prevent sexual harassment cause of action as well. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287 [no cause of action for violation of Gov. Code, § 12940, subd. (k), absent a finding plaintiff suffered actionable harassment]; in accord, Tritichler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154 [plaintiff must "be found to have been subjected to sexual harassment stemming from a hostile environment" before jury can reach issue of whether Gov. Code, § 12940, subd. (k), was violated; see also Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) [¶] 10:481.2, p. 10-76 ["[n]o [Gov. Code, § 12940, subd. (k)[,] action lies for failure to take necessary steps to prevent harassment if no harassment in fact occurs"].)
C. Wrongful Termination Causes of Action
Villalvazo also contends the trial court erred by granting summary judgment on his retaliation causes of action. His complaint alleged both a Tameny/wrongful termination in violation of public policy cause of action and a FEHA retaliation cause of action (Gov. Code, § 12940, subd. (h)), both premised on the allegation he was fired because he had complained about sexual harassment by Barcellos.
In order to establish a prima facie case of retaliation, Villalvazo must show (1) he engaged in a "protected activity" (e.g., reporting or complaining about sexual harassment, (2) Kofax subjected him to an adverse employment action, and (3) a causal link between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) Even if the harassing conduct is not actionable, Villalvazo's report of it is protected activity if he reasonably believed he was reporting a violation of the FEHA. (Id. at p. 1043.)
We apply the well-accepted burden shifting paradigm specified by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 (McDonnell Douglas), to a wrongful termination/retaliation claim. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111-112 (Reeves).) In the trial context, the McDonnell Douglas framework requires the plaintiff to present sufficient evidence supporting prima facie case of retaliation, which gives rise to a presumption the employer acted unlawfully. The employer may then dispel the presumption by articulating a legitimate, nondiscriminatory reason for its action. If the employer does that, the presumption disappears and the issue then becomes one of whether the plaintiff has proven by a preponderance of the evidence the existence of discriminatory animus and a causal link between it and the adverse action she suffered. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Mamou); Reeves, supra, 121 Cal.App.4th at pp. 111-112.)
In the summary judgment context, the employer as the moving party "has the initial burden to present admissible evidence showing either that one or more elements of the plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors." (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) If the employer meets that initial burden, "the plaintiff then has the burden to produce 'substantial evidence that the employer's stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.'" (Ibid.) To survive a summary judgment motion, the plaintiff must produce evidence that creates a material factual dispute pertaining to the employer's asserted reason, evidence sufficient to support "a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus." (Mamou, supra, 165 Cal.App.4th at p. 715.)
Here, Kofax met its burden to show a legitimate reason for Villalvazo's firing—declining work performance. Barcellos and Mattox declared they made the decision to terminate Villalvazo's employment due to his lack of follow through with customer service requests; failure to follow through with daily tasks and requests from coworkers; inability to follow through with requests for documentation and information; Barcellos's increased workload due to having to follow-up on Villalvazo's work and to perform his duties for him; and Villalvazo's failure to respond to Barcellos's initial requests for follow-up.
The burden then shifted to Villalvazo to present evidence creating a triable issue as to whether Kofax's proffered reason was a pretext for retaliation. He did not carry his burden.
Villalvazo presented no evidence he engaged in a protected activity. He admitted he never reported or complained about any of the specific incidents he alleges constituted sexual harassment. Villalvazo was aware he was supposed to report sexual harassment to the human resources department, but he did not. Villalvazo testified in his deposition he told Long, the controller, and Yepes that Barcellos was sexually harassing him, but he could not remember anything specific he told them. There was no admissible evidence as to where Long or Yepes fit in the management chain at Kofax or what authority or responsibility they had to investigate Villalvazo's claims. Furthermore, and more significantly, there was absolutely no evidence supporting any causal link between Villalvazo telling Long and Yepes about the alleged harassment and Mattox and Barcellos's decision to terminate his employment. There is no evidence of when Villalvazo told Long and Yepes, and absolutely no evidence the decision makers (Mattox and Barcellos) were ever made aware of Villalvazo's complaints. Without a causal link between the protected activity and the adverse employment action, the retaliation claims fail. (Yanowitz, supra, 36 Cal.4th at p. 1042.) The trial court properly granted summary judgment on the retaliation causes of action.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.