Opinion
C079699
01-24-2017
GREGORY B. WYANT, Plaintiff and Appellant, v. INTEL CORPORATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201200122451CUWTGDS)
In this employment discrimination case, plaintiff Gregory B. Wyant asserted various claims against his former employer, defendant Intel Corporation (Intel), relating to the termination of his employment. The trial court granted summary judgment in favor of Intel. On Wyant's appeal, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wyant began working as a computer engineer for Intel right after college. By February 2011, Wyant was employed in a management role as general manager of strategy architecture and innovation and chief technology officer of IT (information technology).
In late 2008, Wyant began a romantic relationship with another Intel employee, Michelle Mangan, who, by February 2011, was employed in a nonmanagement role as an analyst.
On the evening of Wednesday, February 16, 2011, as she was preparing to leave for the day, Mangan saw Wyant's car parked beside hers. She called the police and requested an escort to her car but was told it would take some time before they could come. Soon thereafter, Mangan received a call on her cell phone from Intel security, and an Intel security officer came to escort Mangan to her car. Mangan told the officer that Wyant was bothering her and that she was afraid of him.
The following day, Intel employees Joseph Beachell and Julie Benson met with Mangan regarding the incident the night before. Beachell was a corporate security investigator for Intel; Benson was a human resources representative from Intel's sales and marketing department. At the meeting, Mangan told them of her concerns with Wyant's behavior, that she was afraid of him, and that she wanted him to stop contacting her. She explained that she and Wyant had been dating (even though Wyant was married), but they had broken up in November or December. On Tuesday, February 8, Wyant came to her house to talk to her, but then his wife showed up, pounding on the door and ringing the door bell. In response, Mangan called 911. Mangan told Wyant to leave her alone, but he did not; instead, he texted and called her through the weekend. He also showed up at her house with flowers. On Sunday, February 13, she called the police again while Wyant was at her home, and he left but then started texting her again while the police officer was still there, so the officer called him and told him to stop.
On Wednesday the 16th, Mangan apparently received a voice mail from Wyant at work telling her to check her e-mail account and expressing that he wanted to tell his children about their affair. Mangan did not respond to the voice mail. At 12:45 p.m., she saw Wyant looking into her car. When she was leaving, she saw his car parked a few cars away from hers, so she went back into the building. When she saw his car leave, she went back outside, only to discover that Wyant had simply moved his car right next to hers. That was when she called the police. When she was escorted to her car, she saw that Wyant was not in his car but there were flowers on his car seat.
Mangan told Beachell and Benson that she was fearful, but Wyant had not threatened her; he just would not stop contacting her, which left her looking over her shoulder.
A week later, on February 22, Mangan met with Beachell and Camella McIntosh, Intel's human resources legal investigator. At this meeting, Mangan provided a more thorough history of her relationship with Wyant. She told them she met Wyant in October 2008, and they started dating three weeks later. He told her he was separated from his wife. They broke up in October 2010 but remained in contact until December, when Wyant said he "couldn't do it anymore and needed 30 days." He got back in contact with her in January, and she told him she wanted an authentic relationship. He told her he wanted to move in with her and was serious about the future, but she did not buy it.
Toward the end of January 2011, Wyant deposited $10,000 into her bank account, then the following week deposited another $5,000. He told her he just wanted to help with bills and prove he was in the relationship and that he loved her. She put the money in a savings account and did not touch it.
At some point, Wyant texted her and told her he had a dream that she had about $3,500 in her account; she checked her account balance on mobile banking and it was the amount he said. She changed the log in and password on her account. After she received her bonus from Intel, she moved money around to save for a house she wanted to buy.
On February 4, Wyant showed up at her house. She invited him in and told him she could not "do this" because the relationship was not authentic. He said he wanted his money back, and she wrote him a check. He then said he wanted "his stuff" -- souvenirs from things they had done together.
The next day, Wyant ripped up Mangan's check for $15,000. He then told her he had a dream about how she moved money around to and from various accounts, and he knew she had only a couple of thousand dollars in her account. She called the bank and changed her personal identification number.
On the evening of February 8, Wyant came to her house to talk. When Wyant's wife came to the door, pounding and ringing the bell, Mangan told Wyant he needed to manage it or she would call 911. When she took the telephone into the laundry room, Wyant's wife came "crashing in." Wyant and his wife were "fighting and yelling." When they went outside, still fighting, Mangan went into the garage and called the police. Seven officers showed up.
On February 9 and 10, Wyant was texting her, calling her, and leaving voice mails all day. She tried to block Wyant's calls. On February 11, a new number started calling her phone; she did not answer.
At 8:00 a.m. on February 12, the doorbell and the telephone were ringing "on and on." It was Wyant. A friend of Mangan's who had spent the night at her house spoke to Wyant on the phone and told him to go away, and he started asking the friend about $4,000 the friend had loaned to Mangan the year before for her divorce. He then said he wanted his stuff, and Mangan's friend told him she would get it. Finally, the friend got Wyant off the phone and got him to leave. She and Mangan later packed up Wyant's stuff and dropped it off on the front porch of his apartment along with a check for $15,000 and the flowers he had left at Mangan's. Wyant later texted Mangan and told her he would wait for her at Cost Plus nearby so they could talk, but she did not respond. That evening, there was a note on her car.
On February 13, the friend's husband came over and said he had noticed a BMW driving around the neighborhood. Mangan told the friend to check her phone, and the friend found that Wyant had called her home phone but had not left a message.
Mangan found that Wyant had left messages at her home as well. After she was home awhile, Wyant started phoning and texting and then came to her house again. She called the police, and they showed up and told him to stop calling and texting her. He said he would stay across the street and said he had brought 28 roses -- one for each month they had been together. She told the police she did not want anything from him and just wanted him to leave her alone. The police got Wyant to leave, but then he started texting her again right away. The police were still at her house, so they had her call Wyant, and the police officer "read him the riot act."
On February 14, Wyant drove by smiling as she was driving with her son. She did not know if it was a coincidence.
On February 15, there was a missed call and a voice mail telling her to check her e-mail account. There she found a letter of apology from Wyant. She called a girlfriend and went to get a new cell phone and phone number.
On February 16, she went to lunch with a friend. At 12:45 p.m., she saw Wyant at her car looking in the window. When she went to her car around 5:15 p.m., Wyant's car was parked a few spaces away from hers and he was there. She went back into the building, but there was no one at the security desk. When she went back outside, he had moved his car and he was walking away, but then he started back and got in his car and sat there. That was when she went back in and called the police. When she went back out to her car with the escort, she did not see Wyant but there were roses on the seat of his car. That evening, her son said he saw Wyant's car by the house.
On February 17, on her way to work, Mangan saw a poster at the trailhead at a park with the name "Dina" on it. Only later did she connect that name to a woman Wyant had told her had tried to break up his marriage years earlier. By the end of the day, the sign was gone.
Mangan told Beachell and McIntosh that Wyant had never physically threatened her, he was not a scary person, and she did not see that Wyant would hurt her; it was just that he was not listening to her.
On February 25, Beachell and McIntosh met with Wyant to get his version of the facts and to assess whether he posed a risk or threat to Mangan, himself, or Intel. Also participating in this meeting, via speaker phone, was Dr. Harley Stock, a forensic psychologist employed by an outside firm that Intel used occasionally to assist with workplace assessments. At the outset of the meeting, Wyant was advised that the workplace response team (WRT or the team) was investigating a complaint Mangan had made against him and was told that he had to answer the team's questions and that if he did not cooperate with the investigation his employment could be terminated.
The team consisted of Beachell, McIntosh, Dr. Stock, Elizabeth Clarke (Intel's occupational health care manager), Patrick Duffy (one of Intel's human resources attorneys), Stefanie Anderson (Intel's Folsom site security manager), and Michael (Bill) Bidal (Intel's human resources representative for the IT department).
During the meeting, Dr. Stock questioned Wyant about the conduct Mangan had previously expressed concern about. According to Wyant, Dr. Stock asked about what Wyant and Mangan did together in their private time rather than at work. Dr. Stock also questioned him about his romantic relationships with other women, including questions about his divorce and a woman he knew in Australia. Dr. Stock asked Wyant if he was taking any medications, had used drugs, or owned any firearms. Dr. Stock also asked Wyant if he was currently seeing a psychologist and if he had ever seen a psychologist. According to Wyant, Dr. Stock labeled him as an "obsessive stalker," and when Wyant asked if he could have a second opinion, Dr. Stock told him he could not.
At Wyant's request, Beachell and McIntosh met with him again on March 7 to allow Wyant an additional opportunity to share his version of the facts. The following day, the team met to discuss the results of its investigation. Dr. Stock expressed the opinion that Wyant's statements during his interviews showed that he did not recognize how his conduct toward Mangan could bother her. The remaining members of the team evaluated the facts and concluded that Wyant's conduct was inappropriate and warranted a recommendation that Intel terminate his employment because he had violated Intel's discipline and discharge guideline, which prohibits harassment of other employees and conduct outside of Intel's premises that creates an unusually tense work environment or adversely affects Intel or its employees.
The team also considered, however, whether to recommend offering Wyant a behavioral contract in lieu of discharging him. Based in part on Dr. Stock's "risk assessment" -- which apparently refers to his assessment of the likelihood that Wyant would continue bothering Mangan -- the team decided that Wyant was unlikely to correct his actions on his own, but counseling might help him do so. Accordingly, Intel representatives on the team decided to recommend that Intel offer Wyant the opportunity to enter into a behavioral contract rather than face immediate termination.
On March 11, McIntosh and Clarke -- with Dr. Stock and Bidal participating by telephone -- met with Wyant. They informed him that his conduct subjected him to termination, but Intel was going to give him another chance to "leave . . . Mangan alone." They presented the behavioral contract to him and gave him an opportunity to review it and ask any questions.
The behavioral contract reiterated that Wyant had engaged in conduct that subjected him to immediate termination from his employment with Intel, "[f]or example, . . . attempt[ing] to contact [Mangan] directly or indirectly on several occasions despite the instruction [he] received from law enforcement not to contact her." The contract further stated as follows: "The behaviors you discussed are also concerning to us in terms of your personal and professional well-being. Dr. Stock recommends that you seek treatment regarding the type of inappropriate, uncomfortable, unwanted, persistent communications/behaviors you engaged in toward [Mangan]." The contract then set forth various terms Wyant was expected to comply with in order to avoid termination of his employment, including the following:
1) He was not to "directly or indirectly contact . . . Mangan in any manner";
2) He was to "seek treatment for the types of inappropriate, uncomfortable, unwanted, persistent communications/behaviors [he] demonstrated";
3) He was to "cooperate with [his] treatment providers regarding treatment recommendations and attend treatment as long as [his] providers require[d]," including "tak[ing] any medications they prescribe[d] as part of [his] treatment plan";
4) He was to "sign whatever consents may be necessary to enable Intel Occupational Health and its consultants (e.g., Dr. Stock) to monitor [his] compliance with [his] treatment plans"; and
5) He was to "sign a 'Release of Information Form' giving [his] treatment providers permission to report [his] cooperation and compliance with [his] treatment plan to Intel's Occupational Health Case Managers and to Incident Management Group (e.g., Dr. Stock)."
Although he was told he did not have to sign the behavioral contract at that time -- he could "weigh his options" before deciding whether to do so -- Wyant signed the agreement during the meeting. Wyant also signed an "AUTHORIZATION FORM: Formal Referral" that authorized "ComPsych's Clinical Staff" to release to Dr. Stock information regarding the treatment Wyant was required to seek. (This was apparently the "Release of Information Form" referenced in the behavioral contract.)
ComPsych was Intel's employee assistance program (EAP) provider.
After the March 11 meeting, Wyant began seeing a psychologist, Dr. Betty Sutton, whose name he had gotten from ComPsych.
On May 5, 2011, Mangan informed McIntosh by e-mail that she had called the police again that evening because Wyant had been at her house and it was the second time that had happened since Mangan had last spoken with McIntosh. A week later, Mangan spoke to McIntosh and told McIntosh that her son had seen Wyant sitting in his parked car in their neighborhood two to three weeks earlier, and then, on May 5, as her son left their house, he saw Wyant "running off the porch and down the driveway and down the street."
On May 13, 2011, Clarke, McIntosh, and Dr. Stock (via telephone) met with Wyant about the incident, and he admitted to being near Mangan's house. (In opposing Intel's summary judgment motion, Wyant claimed he was in the neighborhood looking at a house that was for sale and was "standing on the street" when he heard Mangan's door open, so he left.) Wyant was placed on paid administrative leave that day.
On May 26, 2011, the team met and determined that Wyant's employment should be terminated because he violated the behavioral contract. Following that meeting, Bidal informed Wyant's supervisor, Diane Bryant, of the team's recommendation. On June 2, Bidal informed the other members of the team that Bryant had decided to terminate Wyant's employment, and "[s]oon after [that] meeting, [Bidal] made plans to travel (and in fact did travel) to the Folsom campus on June 8, 2011, to deliver the termination message to . . . Wyant." Apparently, however, someone made the decision to delay communicating the termination decision to Wyant following the receipt of a letter from his attorney on June 7. Ultimately, Intel terminated Wyant's employment by means of a letter dated July 14, 2011.
On April 16, 2012, Wyant commenced this action against Intel by filing a complaint for wrongful termination and unlawful discrimination (among other things). In all, his complaint asserted 11 causes of action against Intel. In August 2014, Intel moved for summary judgment or, in the alternative, summary adjudication of issues. In April 2015, the trial court determined that Intel was entitled to summary adjudication on all causes of action and thus was entitled to summary judgment. From the judgment entered in May 2015, Wyant timely appealed.
Wyant's complaint also named several other defendants, but the present appeal involves Intel only.
DISCUSSION
On appeal, Wyant contends the trial "court's order granting summary judgment should be reversed and summary adjudication should be denied as to all of [his] causes of action." Of the 11 causes of action alleged against Intel and adjudicated by the trial court, however, Wyant offers argument on only eight. (He offers no argument on his causes of action for violation of Civil Code section 56.20, subdivision (c), intentional infliction of emotional distress, or defamation. Accordingly, we limit the discussion below to those eight causes of action.
I
Standard Of Review
A defendant may move for summary judgment "if it is contended that the action has no merit . . . ." (Code Civ. Proc., § 437c, subd. (a)(1).) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Id., subd. (p)(2).) "The motion for summary judgment shall be granted if all the 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." (Id., subd. (c).)
"When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
"Because the trial court's determination [on a motion for summary judgment] is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)
"The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed, and doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion." (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)
II
Disability Discrimination
Wyant's second cause of action alleged a claim for disability discrimination in violation of subdivision (a) of Government Code section 12940. As relevant here, under that provision it is an unlawful employment practice for an employer to discriminate against a person because of that person's mental disability. (§ 12940, subd. (a).) "Mental disability" includes "[b]eing regarded or treated by the employer . . . as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become" a "mental or psychological disorder or condition" that either "limits a major life activity" or "requires special education or related services." (§ 12926, subd. (j)(1), (2) & (5).)
All further section references are to the Government Code unless otherwise noted.
In his complaint, Wyant alleged that Intel "perceived him as having a mental disability and . . . this perceived disability was a motivating reason in INTEL's decision to terminate him." More specifically thereafter, he alleged that Intel "thought that [he] was a 'stalker,' which limited his ability to work" and that Intel's "belief that [he] was a 'stalker,' was a motivating reason in their [sic] decision to terminate him."
In moving for summary judgment, Intel argued that Wyant could not prevail on his claim of disability discrimination because being a stalker is not a mental disability or condition. Rather, "stalking" is a pattern of conduct.
In opposing Intel's motion, Wyant noted that his "deposition actually referred to STOCK calling him an[] 'obsessive stalker,' " and he contended that, "[r]egardless of the label, there is no question that INTEL believed [he] had a condition that needed treatment" because Intel had him sign a behavioral contract that required him to seek treatment for his behavior.
The trial court agreed with Intel that Wyant's "behavior, which was described by the forensic investigator as 'stalking[,]' is not a mental . . . condition as a matter of law."
On appeal, Wyant first contends the trial court mischaracterized his disability discrimination claim. He asserts his claim was not based "solely on the contention that INTEL accused [him] of being a 'stalker,' " but also on the allegation that "he was accused by Dr. Stock, a forensic psychologist, of being an 'obsessive compulsive stalker.' " (Bolding omitted.) According to Wyant, the "Behavioral Contract and his subsequent termination were adverse employment actions that were motivated by INTEL'S perception that he was an 'obsessive compulsive stalker.' "
The problem with this argument is that Wyant did not allege in his complaint that Intel perceived him as suffering from obsessive compulsive disorder or even that Intel perceived him as being an obsessive compulsive stalker. Instead, as we have set out already, Wyant simply alleged that Intel "thought that [he] was a 'stalker' " and that Intel's "belief that [he] was a 'stalker,' was a motivating reason in their [sic] decision to terminate him." The reference to Wyant being an obsessive compulsive stalker appears in his complaint only under the heading of " GENERAL BACKGROUND FACTS ," where Wyant alleged that Dr. Stock "accused [him] of being an obsessive-compulsive stalker" during the meeting with Beachell and McIntosh on February 25, 2011.
It is true, as Wyant notes, that he incorporated this factual allegation by reference into his disability discrimination cause of action, but that incorporation was insufficient to alter the basic nature of the allegations of that cause of action, which, as we have explained, were that Intel thought he was a stalker and that Intel's belief that he was a stalker was a motivating reason behind its decision to terminate his employment. The fact that Dr. Stock accused him of being an obsessive-compulsive stalker -- and thus might be deemed to have accused him of suffering from obsessive compulsive disorder -- does not mean that Intel, as Wyant's employer, perceived Wyant as suffering from that disorder, or from any disorder for that matter, or that Intel terminated Wyant's employment because of that perception. If Wyant had wanted to allege that Intel perceived him as having obsessive compulsive disorder and terminated his employment based on that perception, he could have done so, but he did not. As the trial court noted in ruling on this issue, "[t]he papers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings." (See Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)
Much like he did in the trial court, Wyant also argues that "regardless of the label, there is no question INTEL perceived [him] as having a mental condition or disorder that required the treatment of health care professionals [and] that had a physiological cause as the Behavioral Contract required [him] to take medications that were prescribed." Again, however, this argument strays beyond the actual allegations of his disability discrimination cause of action. In that cause of action, Wyant alleged that Intel thought he was a stalker and that Intel's belief that he was a stalker was a motivating reason behind its decision to terminate his employment -- nothing more. If Wyant wanted to allege that Intel perceived him as having a mental disability because Intel, in lieu of immediately terminating his employment, offered him the option of entering into a behavioral contract that, among other things, required him to "seek treatment for the types of inappropriate, uncomfortable, unwanted, [and] persistent communications/behaviors" he had exhibited toward Mangan, he could have done so, but he did not. As we have explained, he alleged only that Intel perceived him to be a stalker. As Wyant has not refuted the trial court's determination that stalking and/or being a stalker is not a mental condition, he has failed to show any error in the trial court's ruling that he could not prevail on his cause of action for disability discrimination.
III
Sex Discrimination
Wyant's third cause of action alleged a claim for sex discrimination in violation of subdivision (a) of section 12940, which makes it an unlawful employment practice for an employer to discriminate on the basis of sex. In his complaint, Wyant alleged that his "sex was a motivating reason for his termination because INTEL assumed that what [Mangan] said was true while assuming that [he] was the aggressor because he is a man." According to Wyant, if Intel had "investigated what happened before taking action, they [sic] would have realized that [Mangan] was lying about what happened and that [he] was not a 'stalker' and posed no threat to anyone."
In moving for summary judgment, Intel asserted that Wyant's allegations were "directly refuted by [his] own admissions during the WRT process and deposition testimony" because he "admitted to most of the conduct that formed the basis for the WRT's recommendation during the February 25, 2011 interview." Intel also argued that, to the extent Wyant's sex discrimination claim was based on Wyant's belief that "Mangan should have been placed on a Behavioral Contract as well," the claim was without merit because Wyant and Mangan were not similarly situated in that: (1) Wyant was a senior management employee while Mangan was not; and (2) Wyant did not contemporaneously complain about any conduct by Mangan, while Mangan did contemporaneously complain about Wyant's conduct. In summary, Intel asserted that Wyant could not "establish that similarly situated female employees were treated more favorably than him."
In opposing Intel's motion, Wyant argued that he and Mangan were similarly situated because Mangan had engaged in conduct "far worse" than his -- namely, "text[ing him] a picture of her aborted fetus" -- but her conduct "did not result in a behavioral contract or a requirement that she seek psychological counseling." Wyant also asserted that Mangan "violated INTEL'S directive not to contact [him] and still remains employed at INTEL."
In his declaration in opposition to Intel's summary judgment motion, Wyant claimed that Mangan became pregnant with his baby in the fall of 2010 and decided to have an abortion, for which he paid. He further claimed that around November 2010, Mangan "sent [him] a text message with pictures of the aborted fetus," which he found "very disturbing" and which led him to tell Mangan he wanted to "take some time off from [their] relationship." Wyant did not assert that he reported this incident to Intel when it happened. --------
In reply, Intel observed that the texting Wyant described "happened months prior to the conduct [Mangan] complained of," and Wyant "never complained about this conduct or alleged that it was creating an unusually tense work environment for him, contemporaneously or otherwise." Intel also observed that the contact Wyant described "happened months after Wyant's termination and therefore could not have created an unusually tense work environment."
The trial court agreed with Intel that Wyant and Mangan were not similarly situated because of their employment status (managerial vs. nonmanagerial) and because Wyant never contemporaneously complained about any conduct by Mangan.
On appeal, Wyant reiterates his argument that he and Mangan were similarly situated, notwithstanding their "different work responsibilities," because "he and Mangan engaged [in] the same or worse conduct and they were treated differently." He contends he "was terminated for being near MANGAN'S home," while Mangan "remains employed even though she violated Intel's directive that she not have contact with [him]." He also contends he was required to sign the behavioral contract because he parked next to Mangan, but she was not required to sign one even though she "texted pictures of her aborted fetus to [him]."
Under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) -- the federal equivalent of the California law at issue here -- to establish a prima facie case of disparate treatment based on sex, the plaintiff must show (among other things) that the employer treated similarly situated employees of the opposite sex more favorably. (Maniccia v. Brown (11th Cir. 1999) 171 F.3d 1364, 1368.) " 'In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.' [Citation.] 'The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.' [Citation.] We require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." (Ibid.)
Wyant offers us no reason not to apply the foregoing approach here, under California law, so we will do so. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040 [when Fair Employment and Housing Act (FEHA) provisions are similar to those in Title VII of the Civil Rights Act of 1964, California courts will look to the federal courts' interpretation of Title VII of the Civil Rights Act of 1964, as an aid in construing the FEHA].) Accordingly, the question is whether Wyant has shown a triable issue of fact as to whether he and Mangan engaged in "nearly identical" forms of misconduct -- in terms of both quantity and quality -- such that they should have been disciplined similarly. Wyant has shown no such issue.
First, with respect to the behavioral contract Intel had Wyant sign, Wyant's argument that he and Mangan were similarly situated is premised on his assertion that "[a]ll [he] did that was related [to] work was park next to MANGAN'S [car]." Not so. Parking his car next to Mangan's may have been all that Wyant did at the worksite, but all of his conduct toward Mangan that Mangan related to Intel as a basis for her assertion that she was afraid of him could reasonably be deemed related to work because Intel's policies against "[h]arassment of other employees" and "[c]onduct outside Intel premises which creates an unusually tense work environment, or which adversely affects Intel or its employees." Thus, in determining whether Wyant and Mangan engaged in similar misconduct, the proper comparison is not between Mangan texting Wyant pictures of her aborted fetus and Wyant parking his car next to Mangan's, but between Mangan's texting and all of Wyant's conduct toward Mangan about which Mangan complained and which provided the basis for her expressed fear of him. Viewed thusly, there is no reasonable basis on which a jury could find that Wyant and Mangan engaged in "nearly identical" forms of misconduct.
Second, with respect to the termination of Wyant's employment for being near Mangan's home, Wyant fails to acknowledge that his conduct in this regard was deemed to violate the behavioral contract he entered into with Intel to forestall his termination originally, whereas Mangan's contact with him that he claims was in violation of a directive from Intel occurred months after Intel terminated his employment. Wyant fails to explain how, given these different circumstances, a jury could reasonably find that he and Mangan engaged in what he calls "the exact same conduct." His conduct was deemed to violate his behavioral contract with Intel and arguably constituted a further violation of Intel's policies against harassment of other employees and conduct that creates an unusually tense work environment or which adversely affects Intel's employees. Mangan's conduct, on the other hand, did none of these things. Thus, again, Wyant fails to show a reasonable basis on which a jury could find that he and Mangan engaged in "nearly identical" forms of misconduct. For these reasons, Wyant has failed to show any error in the trial court's ruling that he could not prevail on his cause of action for sex discrimination.
IV
Psychological Examination Or Inquiry
Wyant's fourth cause of action alleged a claim for violation of subdivision (f) of section 12940. As relevant here, that provision makes it an unlawful employment practice for an employer to "require any . . . psychological examination of an employee [or] to make any . . . psychological inquiry of an employee," unless the employer can show that the examination or inquiry is "job related and consistent with business necessity." (§ 12940, subd. (f)(1) & (2).) In his complaint, Wyant alleged that Intel violated this provision "by requiring him to undergo psychological counseling as a condition of keeping his employment."
In moving for summary judgment, Intel asserted that Wyant was not "required by Intel to go through any medical examination" because Wyant "voluntarily chose to accept the terms of the Behavioral Contract, which included seeking 'treatment' for inappropriate conduct [he] had exhibited that created an unusually tense environment." Intel further asserted that the treatment provided for in the behavioral contract was "job related and consistent with business necessity."
In opposing Intel's motion, Wyant argued that at the very least he was forced to undergo a psychological inquiry when he was forced to answer questions posed by Dr. Stock during the workplace risk assessment. He further argued that the psychological inquiry and requirement that he seek treatment were not job related nor required by business necessity because he had not engaged in any conduct toward Mangan at work.
The trial court agreed with Intel, concluding that "even if [Wyant] were required to undergo an examination, which he was not, the Behavioral Contract was job related and consistent with business necessity. As a senior manager, [Wyant] had responsibility to ensure that harassment, including sexual harassment, did not occur at Intel. [Citation.] Accordingly, [Wyant's] position required him to exercise good judgment and communication skills, as well as to refrain from and prevent all types of harassment that impacted the workplace. Therefore, when [Wyant] exhibited multiple instances of inappropriate, uncomfortable, unwanted, persistent communications and behaviors toward Mangan, resulting in multiple reports to the Folsom Police Department, Intel would have had objective, reasonable cause to require a mental examination of the employee even though Intel never [did]."
On appeal, Wyant first contends the trial court erred in determining that he was never required to undergo a psychological examination or inquiry because Wyant's "initial interrogation by STOCK would certainly qualify as a psychological exam or inquiry." The problem with this argument is essentially the same as the problem with Wyant's disability discrimination claim: it is beyond the scope of what Wyant pled in his complaint. As we have noted, Wyant specifically alleged that Intel had violated subdivision (f) of section 12940 "by requiring him to undergo psychological counseling as a condition of keeping his employment." Wyant did not allege that Dr. Stock's questioning of him during the February 25, 2011, meeting qualified as a psychological examination or inquiry. Accordingly, Wyant's argument that it did is beyond the scope of the issues raised by the pleadings, and we need not consider it further.
As for the issue Wyant did raise in his complaint -- that the psychological counseling he was required to undergo as part of the behavioral contract constituted a psychological examination or inquiry -- Wyant gives this issue short shrift, asserting only (1) that "[n]either INTEL nor the [trial] court ever addressed why the psychological treatment mandated by the Behavioral Contract did not subject WYANT to a psychological exam or inquiry" and (2) that "[c]learly treatment with a psychologist would require that WYANT answer questions related to his mental health." We find this argument insufficient to show error in the trial court's ruling. Essentially, the trial court determined that, under the undisputed facts presented by the evidence, the treatment mandated by the behavioral contract did not constitute a psychological examination or inquiry. We agree with that determination. It thus falls to Wyant to show, based on the evidence before the court, a triable issue of fact as to whether that was so. He cannot meet that burden by referencing no evidence whatsoever and, instead, simply asking us to conclude -- apparently as a matter of indisputable truth irrespective of any evidentiary foundation -- that "treatment with a psychologist would require [him to] answer questions related to his mental health." We cannot so conclude. Accordingly, Wyant has failed to show any error in the trial court's ruling that he could not prevail on his cause of action under subdivision (f) of section 12940.
V
Retaliation
Wyant's fifth cause of action alleged a claim for retaliation in violation of subdivision (h) of section 12940, which makes it an unlawful employment practice for an employer to "discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." In his complaint, Wyant alleged he "engaged in protected activity when he complained about discrimination based on his sex and perceived mental disability" and when he "complained about INTEL'S requirement that he undergo psychological counseling as a condition of keeping his job." He further alleged that Intel retaliated against him for these actions by terminating his employment.
In moving for summary judgment, Intel contended Wyant could not establish a prima facie case of retaliation because Wyant's complaints were contained in the letter from his attorney to Intel dated June 7, 2011, but the decision to terminate his employment "was made long before the letter was received by Intel." In support of this contention, Intel asserted that: (1) the WRT concluded termination was necessary on May 26, 2011; (2) Wyant's supervisor, Diane Bryant, was informed of the recommendation that same day; (3) Bryant decided to terminate Wyant's employment sometime between May 26 and June 2; and (4) the WRT was informed that Bryant approved its recommendation on June 2.
In opposing Intel's motion, Wyant pointed out that the letter actually terminating his employment was dated July 14, 2011 -- after he complained to Intel about how he had been treated -- and although he acknowledged Intel's evidence that the decision to terminate his employment was made in late May, he argued that evidence consisted of nothing but "self-serving declarations" that were not supported by any documentation.
In reply, Intel argued that even though it was not required to, it did offer documentary evidence in support of its assertion that the decision to terminate Wyant's employment was made before Intel received the letter from Wyant's attorney, namely, "emails demonstrating that travel arrangements were made on June 3, 2011 to deliver the termination message to [Wyant] on June 8."
The trial court agreed with Intel that it was "undisputed that the termination decision was made long before the letter was received by Intel" and therefore there could be no causal connection between Wyant's protected conduct and Intel's termination of his employment.
On appeal, Wyant contends "[t]he evidence as to when INTEL decided to terminate [his employment] is disputed." As in the trial court, he rests his contention largely on the lack of "a single document that indicates the decision to terminate [him] was made before June 7th." Observing that a plaintiff can defeat a defense motion for summary judgment by showing that the defense evidence in support of the motion permits conflicting inferences as to the existence of the specified fact, Wyant also suggests that is the case here.
The pertinent fact here is when Intel decided to terminate Wyant's employment. Intel offered evidence that while the WRT recommended Wyant's termination, "[t]he ultimate decision to terminate . . . had to be approved by Diane Bryant, Mr. Wyant's supervisor at the time." Bryant did not state exactly when she made the termination decision, but she did state that she made the decision based on the WRT's "conclusion that Mr. Wyant violated the Behavioral Contract and the [team's] recommendation" to terminate him. Bidal stated that the team met on May 26 and at that time determined that Wyant should be terminated because he violated the behavioral contract. Bidal further stated that he informed Bryant of the team's recommendation after the May 26 meeting. Bidal also stated that he informed the other members of the team of Bryant's decision on June 2, and "[s]oon after th[at] meeting, [he] made plans to travel (and in fact did travel) to the Folsom campus on June 8, 2011, to deliver the termination message to . . . Wyant." McIntosh confirmed that it was at the June 2 meeting that "Bidal reported that Intel intended to terminate . . . Wyant's employment for violating the Behavioral Contract." Apparently, however, someone made the decision to delay communicating the termination decision to Wyant following the receipt of the letter from his attorney on June 7.
The foregoing evidence, which is uncontroverted, establishes that Intel decided to terminate Wyant's employment before Intel received the letter from Wyant's attorney that constituted the only protected activity in which he engaged. Wyant points to no authority that would have allowed the trial court, or would allow this court, to ignore that evidence just because Wyant finds it not worthy of credence. He asserts that "[a] jury could reasonably infer that when a major corporation decides to terminate one of their [sic] senior executives, they [sic] would have more than a termination letter to document their [sic] decision and that they [sic] would not wait more than five weeks to execute the decision." But he does not point to any evidence from which a reasonable jury could draw such an inference. On the record before us, the only basis on which a jury could find that Intel decided to terminate Wyant's employment after June 7 would be if the jury decided that the sworn statements of Bryant, Bidal, and McIntosh to the contrary were not credible. But the summary judgment statute provides that "[i]f a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility . . . , except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." (Code Civ. Proc., § 437c, subd. (e).) Neither of the exceptions to the general rule apply here because Intel offered multiple witnesses to show that the decision to terminate Wyant's employment was made before June 7, and the material fact -- when the decision was made -- is not "an individual's state of mind, or lack thereof." Thus, the trial court was without power to rule in favor of Wyant just because a jury might have found the testimony of Bryant, Bidal, and McIntosh not credible, and so are we. For this reason, Wyant has failed to show any error in the trial court's ruling that Wyant could not prevail on his retaliation cause of action.
VI
Invasion Of Privacy
Wyant's sixth cause of action alleged that Intel violated his right of privacy under article I, section 1 of the California Constitution because Intel "seriously invaded" his "reasonable expectation of privacy in not being forced to provide his psychological records or undergo[] psychological evaluation in a room full of people or answer[] questions about his private romantic relationship."
In moving for summary judgment, Intel contended Wyant could not prevail on his invasion of privacy claim because even if he could establish a specific legally protected privacy interest, he could not demonstrate he had a reasonable expectation of privacy under the circumstances. Intel also contended Wyant could not show any conduct by Intel that constituted a serious invasion of privacy. Among other things, Intel contended that at no point during his meetings with the team was Wyant administered a psychological or mental exam.
In opposing Intel's motion, Wyant argued that he had a reasonable expectation of privacy in the details of his relationship with Mangan because that relationship did not violate any Intel policy and he and Mangan intentionally kept their relationship separate from work.
The trial court agreed with Intel that Wyant "had no reasonable expectation of privacy regarding offsite work conduct that itself created an unusually tense work environment," and Wyant "was given advance notice that any contact with Mangan would result in Intel involvement."
On appeal, Wyant contends "[t]he privacy violation was not simply an inquiry about WYANT's relationship with MANGAN but a series of personal questions that had nothing to do with MANGAN or INTEL that were asked as part of a psychological evaluation," i.e., Dr. Stock's questioning of Wyant. He contends "the[re] is no basis for the court to find that WYANT did not enjoy an expectation of privacy in his relationships with other women, his mental health history, prescription medications, whether he owned firearms, or consumed drugs or alcohol." Wyant further argues that he also had an expectation of privacy in his relationship with Mangan.
"[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) "Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. [Citations.] Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law." (Id. at p. 40.)
" Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information ('informational privacy'); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ('autonomy privacy')." (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 35.)
" 'The extent of [a privacy] interest is not independent of the circumstances.' [Citation.] Even when a legally cognizable privacy interest is present, other factors may affect a person's reasonable expectation of privacy. For example, advance notice of an impending action may serve to ' "limit [an] intrusion upon personal dignity and security" ' that would otherwise be regarded as serious. [Citation.] [¶] In addition, customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy. [Citations.] [¶] A 'reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. . . . [¶] Finally, the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant." (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 36-37.)
Applying the foregoing principles here, we agree with the trial court that on the undisputed facts here, Wyant had no reasonable expectation of privacy that could have been wrongfully invaded by Intel's conduct. Essentially, Wyant alleged that Intel violated his right to privacy by the questions Dr. Stock asked him during the meeting on February 25, 2011. Although in another context the subjects of Dr. Stock's inquiries might have been out of bounds, the undisputed context of those inquiries here leads to the conclusion that Wyant's reasonable expectation of privacy was not seriously invaded. First, as the trial court noted, Intel's policy, of which Wyant had notice, provided that an employee could be terminated for harassment of other employees or conduct outside of Intel's premises that created an unusually tense work environment or adversely affected Intel or its employees. Notice of this policy reduced Wyant's reasonable expectation of privacy related to inquiries about possible harassing conduct outside the workplace. Second, the questioning occurred in the presence of only two other Intel employees -- Beachell and McIntosh. Third, to the extent Wyant contends Dr. Stock's questions "had nothing to do with MANGAN or INTEL," he is mistaken. The undisputed facts show that Mangan was seriously troubled by Wyant's continued efforts to contact her, and the turmoil from their relationship had spilled over into the workplace when Mangan called the police for an escort to her car because of her fear of Wyant. Also, the purpose of Dr. Stock's inquiries was to assess whether Wyant would be able to control his own behavior without intervention going forward or whether counseling would likely be needed. Wyant has not shown that Dr. Stock's questions went outside reasonable bounds given that purpose.
To the extent Wyant contends he had a reasonable expectation of privacy in his relationship with Mangan, the answer is much the same. On this point, Wyant's attempt to distinguish the decision in Barbee v. Household Automotive Financial Corp. (2003) 113 Cal.App.4th 525 is wasted. It is true that Barbee involved an intimate relationship between a supervisor and a subordinate (id. at pp 532-533), and Wyant did not supervise Mangan, but that distinction makes no difference. The problem here was not potential conflicts that could arise from a supervisor being intimately involved with a subordinate, but the conflict that had arisen because -- to Intel's knowledge -- Wyant would not leave Mangan alone following the break up of their relationship. Wyant cannot claim a reasonable expectation of privacy with respect to behavior that appeared to constitute harassment and that was creating tension in the workplace for Mangan -- whatever expectation of privacy he might have had in other aspects of their relationship. Again, Wyant has not shown that Intel's conduct amounted to a serious invasion of any reasonable expectation of privacy he was entitled to claim under the undisputed facts of this case. Accordingly, Wyant has failed to show any error in the trial court's ruling that he could not prevail on his cause of action for invasion of privacy under the California Constitution.
VII
Intrusion Into Private Affairs
Wyant's seventh cause of action alleged, essentially, that the same conduct that constituted a violation of his constitutional right of privacy also constituted a tortious intrusion into his private affairs.
In moving for summary judgment, Intel again argued that Wyant could not demonstrate that he had a reasonable expectation of privacy under the circumstances.
In opposing Intel's motion, Wyant argued that Intel's assertion about his expectation of privacy was erroneous.
The trial court agreed with Intel that Wyant "had no objectively reasonable expectation of privacy."
On appeal, Wyant contends, essentially, that the trial court erred in adjudicating this cause of action against him for the same reason it erred in adjudicating his cause of action under the California Constitution against him. As we have explained, however, we find no error in the trial court's ruling on Wyant's constitutional claim because Wyant has not shown that Intel's conduct violated any reasonable expectation of privacy he was entitled to claim under the undisputed facts of this case. That conclusion is dispositive of this cause of action as well. "The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 232.) Here, Wyant did not have a reasonable expectation of seclusion or solitude with respect to behavior that appeared to constitute harassment and that was creating tension in the workplace for Mangan, and he had no such expectation as against Dr. Stock's inquiries during the February 25, 2011, meeting that were directed at ascertaining whether he would be able to stop that behavior without intervention. Therefore, Wyant has shown no error in the trial court's ruling that he could not prevail on his cause of action for intrusion.
VIII
Violation Of Civil Code Section 56 .20, Subdivision (b)
Civil Code section 56.20, subdivision (b) provides, in relevant part, that "[n]o employee shall be discriminated against in terms or conditions of employment due to that employee's refusal to sign an authorization [permitting the use or disclosure of medical information]." Wyant's seventh cause of action alleged that Intel violated that statute by requiring him to sign the behavioral contract, which included a clause that required him to release his medical records to Intel and Dr. Stock.
In moving for summary judgment, Intel argued the statute was inapplicable because it prohibits discrimination against an employee for refusing to sign an authorization, but here Wyant signed an authorization.
In opposing Intel's motion, Wyant contended the fact that he signed the authorization was immaterial because Intel "used the threat of termination to force WYANT to sign this authorization." He contended that "[t]hreatening termination . . . is precisely the conduct that this statute prohibits."
The trial court agreed with Intel that because Wyant signed the authorization, he could not "have been discriminated against for not signing the authorization."
On appeal, Wyant reiterates the exact argument he made in the trial court, but he offers no authority in support of it. Contrary to his argument, the statute does not prohibit an employer from threatening termination if the employee refuses to sign an authorization for the use and/or disclosure of medical information. Instead, it prohibits an employer from actually terminating a person's employment -- or otherwise discriminating against that person in the terms or conditions of employment -- because the person has refused to sign an authorization. If Wyant had refused to sign the authorization and Intel had terminated his employment because of that refusal, then Wyant could have asserted a cause of action under the statute. Under the circumstances here, however, he has no such cause of action. For this reason, Wyant has shown no error in the trial court's ruling that he could not prevail on his cause of action for violation of subdivision (b) of Civil Code section 56.20.
IX
Wrongful Termination In Violation Of Public Policy
Wyant's first cause of action alleged wrongful termination in violation of public policy. In essence, Wyant incorporated the other allegedly wrongful acts in some of his other causes of action (e.g., sex discrimination, disability discrimination, retaliation) and asserted that Intel "violated articulated, fundamental public policies . . . by violating the statutes" underlying those other causes of action.
In moving for summary judgment, Intel contended it was entitled to summary adjudication of the wrongful termination cause of action because it was entitled to summary adjudication of the related causes of action.
In opposing Intel's motion, Wyant contended summary adjudication on his wrongful termination cause of action should be denied because he had established triable issues of material fact as to all of his other FEHA causes of action.
The trial court agreed with Intel on the ground that "[t]here [wa]s no underlying FEHA claim that is viable that would support this cause of action."
On appeal, Wyant contends "[s]ummary adjudication as to this cause of action should have been denied because the court's rulings as to the other causes of action were erroneous." We have concluded otherwise. Accordingly, Wyant has shown no error in the trial court's ruling that he could not prevail on his cause of action for wrongful termination in violation of public policy.
DISPOSITION
The judgment is affirmed. Intel shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Mauro, J.