ASHMANN-GERST, J.
David Maxwell (Maxwell) tested positive for methamphetamine and was terminated from his job at Home Depot USA, Inc. (Home Depot). He sued Home Depot and Mary Lipich (Lipich) for violation of the Fair Employment and Housing Act (FEHA), violation of the Labor Code, slander per se and intentional infliction of emotional distress. After the trial court granted summary judgment for Home Depot and Lipich, Maxwell appealed. He argues, inter alia, that there are triable issues as to whether he was terminated because of his disability; whether Home Depot failed to prevent Lipich from harassing him; whether Home Depot retaliated against him because he requested a medical leave; whether Lipich made slanderous statements; whether the intentional infliction of emotional distress claim is barred by the workers' compensation scheme; and whether Home Depot violated Labor Code section 226, subdivision (c) by failing to produce his employment file.
We find no error and affirm.
Home Depot has a policy of automatic termination if an employee tests positive for illegal drugs or nonprescribed prescription drugs.
In 2000, Home Depot hired Maxwell to work with the night crew in its store in Monrovia. His title was freight team associate. He eventually moved to Home Depot's El Monte store and, in 2006, was promoted to freight team supervisor. Lipich became the assistant store manager at the El Monte store in September 2007. She and Maxwell typically worked the night shift from 9:00 p.m. to 6:00 a.m. In October 2007, Maxwell requested a medical leave to receive treatment for his kidney stones and his request was granted. He received three weeks off of work. Upon his return, Maxwell gave Lipich a note from his doctor stating that he should be given light duty. She assigned him to light duty and limited him to lifting items less than 5 pounds. Henry Puente (Puente), the store manager of the El Monte store, ordered Maxwell to assist in the shut-down of Home Depot's store in Covina for a couple of weeks.
On December 4, 2007, Lipich and Maxwell were walking together in the El Monte store during the night shift. She heard something drop to her right, where Maxwell was walking. She turned and saw a vial of powdery substance rolling on the floor. Maxwell denied that the vial was his. He picked it up and gave it to Lipich. She called Puente as well as the store's loss prevention manager and informed them about the vial of powdery substance. She was told to call the police. Lipich followed directions, and the police responded and interviewed Lipich. She reported that she found the vial while she was walking with Maxwell through the store but she did not know what was in it or if it belonged to Maxwell. The police arrested him for drug possession. The day after, he spoke to Nona Taite (Taite), the human resources manager at the El Monte store, and was told that he would be suspended pending an investigation. On December 7, 2007, he again spoke to Taite and asked for disability forms so he could take a stress leave. He was sent to ChoicePoint Laboratory to take a drug test. A week later, Taite received a report from ChoicePoint informing her that Maxwell had tested positive for a drug containing methamphetamine. On February 4, 2008, Maxwell arrived at the El Monte store indicating that he was ready to return to work from his leave of absence. He met with Taite and Puente. Taite informed Maxwell that, relying on Home Depot's drug policy of automatic termination and the information provided by ChoicePoint Laboratory, he was automatically terminated. At no point did Maxwell provide Taite with a doctor's note offering an explanation for why he failed his drug test.
According to Maxwell's second amended complaint (complaint), Lipich harassed him after he returned from having kidney stone surgery. He complained about her harassment but Home Depot refused to investigate or take corrective action. Also, Home Depot refused to make reasonable accommodations for Maxwell's disability. In December 2007, Lipich falsely accused him of possessing illegal drugs. Home Depot terminated Maxwell because of his physical disability and his requests for medical leave and accommodation. Subsequently, it refused his August 29, 2008, written request to inspect or copy his employment records.
Maxwell alleged causes of action for disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent harassment, failure to prevent discrimination, retaliation, slander per se, intentional infliction of emotional distress and violation of Labor Code section 226, subdivision (c). He requested punitive damages.
In a motion for summary judgment, Home Depot argued that Maxwell's discrimination and retaliation claims failed because he was not a qualified person with a disability; he was terminated based on Home Depot's long-standing drug policy; and there was no evidence of pretext. As for failure to accommodate, Home Depot argued that Maxwell received the accommodations he requested, which were a medical leave and light duty. Because Home Depot accommodated Maxwell, it contended that his claim for failure to engage in the interactive process necessarily lacked any merit. Turning to the harassment based claim, Home Depot argued that it was time-barred because Maxwell failed to file a charge with the Department of Fair Employment and Housing within one year of the alleged acts. Regardless, Home Depot argued that Maxwell could not prevail because he could not prove that Lipich unlawfully harassed him. The slander claim, it was argued, lacked merit because Lipich did not make any of the alleged statements and all her statements were true. In addition, her statements to Home Depot employees were protected by the common interest privilege and her statements to the police were absolutely privileged. Home Depot and Lipich took the position that the intentional infliction of emotional distress claim was barred by the workers' compensation remedy and the evidence was otherwise insufficient to support tort liability. Continuing on, Home Depot maintained that Maxwell's deposition testimony destroyed his claim that he made a written request for his employment file in August 2008 and that Home Depot violated Labor Code section 226 by denying him access. Home Depot attached excerpts from Maxwell's deposition establishing that the only request for his personnel file was one that he made verbally in August 2007. Finally, Home Depot argued that it could not be held liable for punitive damages because Lipich did not qualify as one of its managing agents.
In support, Home Depot and Lipich offered the declarations of Taite and Lipich and excerpts from Maxwell's deposition. Taite and Lipich declared that no one discriminated against, harassed or slandered Maxwell, and that he was terminated solely based on Home Depot's drug policy.
Maxwell filed an opposition and argued that there were triable issues, but he offered no argument as to failure to accommodate, failure to engage in the interactive process and failure to prevent discrimination. His attorney, Gary Hollingsworth (Hollingsworth), declared that Maxwell made a written request in August 2008 for his personnel file and Home Depot never responded.
Home Depot and Lipich objected to Hollingsworth's declaration based on lack of personal knowledge and other grounds. At the hearing, Maxwell's attorney complained that Taite's declaration was hearsay with respect to the results of the drug test from ChoicePoint Laboratory.
The trial court ruled in favor of Home Depot and Lipich, concluding: There was no triable issue as to whether Maxwell suffered from a qualifying disability, and there was no evidence that Home Depot's decision to terminate Maxwell was based on improper discrimination or retaliation as opposed to the legitimate business reason offered by Home Depot in its papers. Taite's declaration regarding the contents of the report from ChoicePoint Laboratory was admissible for the nonhearsay purpose of proving the state of mind of Home Depot's personnel. There was no evidence that Maxwell was subjected to a hostile work environment. As to slander, there was no evidence of actionable, nonprivileged statements; the statements were protected by either the absolute privilege or the common interest privilege. The undisputed facts demonstrated that Home Depot and Lipich did not act in an outrageous manner. Because Hollingsworth's declaration as to the Labor Code section 226 claim was not based on personal knowledge, it could not be considered and, as a result, Maxwell failed to show the existence of a triable issue.
Judgment was entered.
This timely appeal followed.
Summary judgment is reviewed from a blank slate. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) In particular, it requires a three-step analysis: "First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]" (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
The FEHA makes it unlawful for an employer to discriminate against an employee because of physical disability. (Gov. Code, § 12940, subd. (a).) Maxwell argues that there is a triable issue as to whether his termination was based on unlawful discrimination. For the reasons discussed below, we disagree.
To establish a prima facie case for discrimination, a "plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. [Citations.]" (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246-1247.) Once a plaintiff presents a prima facie case, there is a presumption of discrimination. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) But that presumption is rebuttable. The employer is permitted to offer evidence that it had a legitimate, nondiscriminatory reason for its action. (Id. at pp. 355-356.) If the employer meets its burden, the presumption of discrimination disappears. The plaintiff must attack the employer's stated motive and provide substantial evidence of pretext; in doing so, he cannot rely on speculation and conjecture. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.)
Assuming for the sake of argument that Maxwell established a prima facie case of discrimination, we limit our inquiry to whether Home Depot met its burden of proof on the second prong of the analysis, i.e., whether it demonstrated that it terminated Maxwell for a legitimate, nondiscriminatory reason. We conclude that Home Depot met its burden. Taite testified that she was informed by ChoicePoint Laboratory that Maxwell tested positive for a drug containing methamphetamine and he was automatically terminated under Home Depot's drug policy.
Maxwell contends that Taite's declaration was insufficient to eliminate a triable issue of fact because "[t]here was no test result presented with the motion; no lab report; no declaration by anyone with personal knowledge of the actual results of the test, much less the methodology or other criteria that would allow [Maxwell] to test the veracity of the results." Maxwell concludes that because Home Depot's "summary judgment motion rests on the premise that [he] failed a drug test, the omission of any evidence which would establish that the test was valid was fatal to the motion." Underlying Maxwell's attack on the judgment is the assumption that the drug test rather than the state of mind of Home Depot's personnel was relevant to the analysis of the second prong. Maxwell's position is mistaken. Simply put, the report from ChoicePoint Laboratory and the Home Depot drug policy combined to create a legitimate reason for Maxwell's termination.
The burden shifted to Maxwell. He was required to "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the reasons offered by [Home Depot] for the employment decision that a reasonable trier of fact could rationally find the reasons not credible, and thereby infer [that Home Depot] did not act for the stated nondiscriminatory purpose. [Citation.]" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1007.) He "`cannot simply show that [Home Depot's] decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated [it], not whether [it] is wise, shrewd, prudent, or competent. . . . [Citations.]' [Citations.]" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
Maxwell does not argue pretext in his briefs. Rather, he argues that the motion should have been denied because: (1) it is undisputed that he was taking prescription medication at the time of the drug test because of kidney stone surgery; (2) it remains an open question whether he violated Home Depot's drug policy; (3) Home Depot cannot in good faith claim that solely because it got information, which it was not willing to share with the trial court or anyone else, that its decision was justified; and (4) only a jury can decided whether he indeed failed a drug test, whether the drug test was administered under some sort of quality control standards, whether Home Depot intended him to fail by sending him to a clinic that had a reputation for reporting false results, whether there were other explanations for a false positive, and whether Home Depot terminated him for an illegal reason. Maxwell did not cite any evidence to support his speculation about what might have happened. In the absence of supporting evidence, his speculation affords him no mileage and we need not consider the matter further. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 ["As a general rule, `The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment'"].)
It is unlawful for an employer or a supervisor to harass an employee based on his physical disability, and an employer has a duty to take reasonable steps to prevent unlawful harassment. (Gov. Code, § 12940, subds. (j) & (k); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) The trial court ruled that Maxwell's claim for failure to prevent harassment lacked merit because he was not subjected to a hostile work environment. Maxwell assigns error.
We perceive no basis for reversal.
To be actionable, harassment must be of a type that would interfere with a reasonable employee's work performance and affect his psychological well-being. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.) "Harassment, which may be verbal, physical, or visual and `communicates an offensive message to the harassed employee' [citation], `"cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature"' [citation]." (Ibid.) In the absence of tangible job detriment, there must be a commensurately higher showing of harassing conduct that was pervasive and destructive of the working environment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [discussing the law of harassment in connection with sexual harassment].)
The pleading alleged that while Maxwell was on medical leave, Lipich complained to coworkers she was irritated with him for taking time off and intended to replace him when he returned with a friend from another store; after Maxwell returned from surgery, Lipich yelled at him and said he was taking too much time off; in the winter of 2007, Lipich refused to return Maxwell to his normal duties and replaced him because of his disabilities; Home Depot transferred him to another location to work on the night crew, which was a position of lesser responsibilities and benefits; while Maxwell was at the other location, Lipich repeatedly called him and threatened to seek termination if he did not return to the El Monte store; Maxwell complained to Home Depot about Lipich, but Home Depot took no action.
In response to the pleading, Lipich declared that when he returned to work, Maxwell provided a doctor's note recommending that he be placed on light duty; she placed him on light duty; after his return to work, Puente ordered him to assist in the shut-down of the Covina store for a few weeks; while at the Covina store, he was still assigned to light duty; and when he returned to the El Monte store, he continued to work as freight team supervisor, but he only performed light duties, only lifted items less than five pounds and took breaks when necessary. At the end of her declaration, she went on to state: "I treated [Maxwell] exactly as I would any other Home Depot associate[]. I am not aware of any discriminatory or retaliatory motive related to the termination of [Maxwell], and I never harassed, discriminated against, or retaliated against [Maxwell]. I never made any disparaging remarks to [Maxwell] or about [Maxwell] regarding his kidney stones or arrest for drug possession. Moreover, I never engaged in any harassing behavior towards [Maxwell]." We conclude that Lipich's declaration was sufficient to shift the burden to Maxwell because it demonstrates that Lipich did nothing to harass Maxwell because of his kidney stones.
In Maxwell's view, there is a triable issue regarding his cause of action for failure to prevent harassment because he was the target of rude comments and assigned to menial tasks; Lipich undercut his authority in front of his coworkers; and he was demoted. Even if we assume these alleged acts qualify as unlawful harassment, the absence of record citations in Maxwell's briefs undermines his argument (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 79) and we deem the issue waived (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1015). In other words, Maxwell abdicated his obligation to show us that he submitted evidence to the trial court that was harassed.
On a deeper level, any attempt to analyze the issue is stymied by Maxwell's use of vague descriptions of the harassment. We cannot assess the legal ramifications of rude comments, assignments to menial tasks, demotion, and undercutting of authority without knowing the specifics. What was the content of Lipich's remarks? How often did she make the remarks? Were they sporadic or routine? What kind of tasks was Maxwell allegedly assigned? Maxwell does not answer these questions in his briefs or in any evidence that he cites. Given his disinclination to truly develop the issue under the law, our analysis must end. It is axiomatic that it "is not our responsibility to develop an appellant's argument." (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
Government Code section 12945.2, subdivision (l)(1) makes it unlawful for an employer to terminate an employee for exercising the right to medical leave. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260-261.) Maxwell contends that there is a triable issue as to whether he was terminated because he took three weeks off in order to have a kidney stone operation.
His argument fails.
A plaintiff who files a retaliation action must show pretext once the defendant offers a legitimate reason for the adverse employment action. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 989.) As previously discussed, Home Depot offered a legitimate reason—the report from ChoicePoint Laboratory and a drug policy—for its decision to terminate Maxwell. Like before, Maxwell did not advert to any evidence creating a triable issue as to pretext.
Even assuming an impetus to continue our analysis, case law cuts against Maxwell. It was Taite who informed Maxwell that he was automatically terminated under Home Depot policy. If Lipich made stray discriminatory or harassing comments to Maxwell, they are entitled to no weight in considering whether Taite or Home Depot policy makers harbored discriminatory intent. (Horn v. Cushman & Wakefield Western, supra, 72 Cal.App.4th at pp. 809-810.) And, notably, Maxwell does not advert to any evidence establishing that Taite harbored retaliatory intent, the drug policy that existed before he was hired was retaliatory, or Home Depot knew the drug test results were either wrong or fabricated.
Slander is a type of defamation. To prevail on a slander claim, a plaintiff must prove an unprivileged oral publication to third persons of specified false matter that has a natural tendency to injure or that causes special damage. A statement charging a person with a crime is slander per se. (Mann v. Quality Old Time Services, Inc. (2004) 120 Cal.App.4th 90, 106-107.)
The pleading alleged that Lipich falsely stated to the police and Home Depot management that Maxwell was in possession of illegal drugs while on the job. To nullify the issue, Lipich declared that she informed Puente and the loss prevention manager of the vial containing powdery substance. At no time, however, did she ever say that Maxwell was in possession of the vial. Also, she told the police officers about the vial but said that she did not know what was in the vial or whether it belonged to Maxwell. The burden shifted to Maxwell to produce conflicting evidence. He failed to do so and cannot prevail.
In any event, Maxwell has a procedural as well as a factual problem. The trial court ruled that any statements made by Lipich to the police and management were privileged. In his briefs, Maxwell contends to the contrary. But this issue has been waived because Maxwell did not cite or discuss the law pertaining to privilege and did not demonstrate that the trial court committed error. What Maxwell forgets is that an appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It therefore must adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) Aside from the waiver, Civil Code section 47 subdivisions (b) and (c) trump Maxwell's claim because, respectively, they establish a privilege for statements that initiate proceedings authorized by law (such as a report to the police) and statements made to interested persons without malice (such as statements made to an employee's managers about a suspicious event involving an employee at the job site). (Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384, 387 [an absolute privilege applied to a report to police by an employer that an employee was in possession of a stolen flight recorder]; Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 3 [workplace communications about matters of common interest protected by a qualified privilege in the absence of malice].) Regarding the qualified privilege, we note that there is no evidence that Lipich acted with malice.
To recover for intentional infliction of emotional distress, a plaintiff must prove the following elements: "(i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) The conduct alleged must be so extreme as to go beyond all possible bounds of decency; it must be regarded as atrocious and utterly intolerable in a civilized community. (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1598.) Further, "[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)
Maxwell alleged that Home Depot and Lipich "engaged in outrageous conduct and an abuse of authority by subjecting [Maxwell] to illegal discrimination, harassment and retaliation." Lipich declared that she never harassed or discriminated against Maxwell, which shifted the burden. Maxwell did not offer any conflicting evidence. As a result, the trial court ruled that there was no triable issue as to whether Home Depot and Lipich acted in an extreme and outrageous manner. The trial court ruled correctly. Home Depot's various employment decisions—assignments given to Maxwell and his eventual termination—are per se not outrageous. And Maxwell failed to establish that Lipich harassed him. Nonetheless, in his opening brief, Maxwell offers a one sentence argument to demonstrate error. He contends: "[W]hether [Home Depot's and Lipich's] conduct was so egregious as to support a claim of emotional distress is a question for the jury." Maxwell waived his challenge by failing to reference any apposite law establishing that a claim for intentional infliction of emotional distress cannot be resolved by summary judgment and instead must go to a jury even when there are no triable issues as to outrageous conduct.
Labor Code section 226, subdivision (c) provides that an employer who receives a written or oral request must permit a current or former employee the right to inspect or copy records pertaining to that employee.
The complaint alleged that Maxwell made a written request on August 29, 2008, to inspect and copy records pertaining to his employment. Home Depot and Lipich negated the issue by citing to Maxwell's deposition wherein he testified that the only file request he ever made was in 2007. To demonstrate a triable issue regarding the 2008 request alleged in the pleading, Maxwell refers us to Hollingsworth's declaration. But the trial court sustained an objection to that declaration and did not consider it. Maxwell cites no law and offers no argument establishing that the trial court's evidentiary ruling was wrong. Given the inadmissibility of Hollingsworth's declaration, there is no triable issue.
All other issues are moot.
The judgment is affirmed.
Home Depot and Lipich are entitled to their costs on appeal.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.
