ALDRICH, J.
Plaintiffs Joan Greer and Michael Hoskins appeal from the judgment of the trial court dismissing their action for race discrimination and retaliation in violation of public policy and of California's Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940 et seq.), after granting the summary judgment motion brought by defendant Southern California Edison Company (SCE). In their moving papers, defendants demonstrated that plaintiffs did not suffer an adverse employment action, an essential element of plaintiffs' prima facie case, and in opposition, plaintiffs failed to raise a triable issue of material fact as to this element. Accordingly, we affirm the judgment.
In 2000, SCE outsourced its security officer functions and eliminated almost all regular security officer positions. To coordinate the contract security officers, SCE created the security coordinator positions in the Corporate Security Department and promoted plaintiffs Greer and Hoskins, along with four others, through a competitive application and selection process. Of SCE's seven security coordinators during the relevant time period, four were of African-American descent.
James Robertson and his colleague Ross Oswald were promoted to manager in SCE's Corporate Security and Emergency Preparedness Office in September 2006. Their responsibilities included managing the security coordinator staff and organizing on-site security at the various SCE facilities. Soon after their promotions, Robertson and Oswald decided to meet with each security coordinator in early October 2006 to ascertain workloads and daily activities. Robertson sent an e-mail on October 2, 2006, announcing the meetings and setting forth the schedule for each security coordinator to meet with them for an hour on either October 3 or 4, 2006. The purpose of the meeting was to "learn what each of you do as a Security Coordinator. Please be prepared to discuss job responsibilities, Cold Stars, Post Checks, Quarterly Site testing, reports/stats/inspection sheets etc., Duty list, phones, invoices, SO salary actions, your PPA and where you are YTD . . . ."
On October 3, 2006, Robertson and Greer had a "disagree[ment]" about whether Robertson had contacted Greer several days earlier. Greer felt that Robertson had "disrespected" her during this dispute. She became upset and feared for her physical safety. She also felt that she, Hoskins, and Muckelroy were being singled out for unfair treatment because of their race. She claimed that for weeks Robertson "seemed only interested in what Hoskins was doing" and she felt she was being forced to defend herself and her job because Robertson was investigating her. She told Oswald that Robertson was harassing her.
In Robertson's view, Greer "began to raise her voice and become argumentative, claiming the meeting was an investigation she wasn't going to attend without HR present." This reaction startled Robertson, as it appeared to him to be "somewhat bizarre behavior" because she had never acted this way in the several years he had known her. He ended the discussion by informing Greer that if she did not attend the scheduled meeting, her absence would be viewed as insubordinate.
Upset, Greer went to Sonia Camerena at SCE's Human Resources Department. In response, Camerena told Robertson that Robertson's manager Karl Perman excused Greer from the meeting and that the meeting would be rescheduled.
Also on October 3, 2006, Greer and Hoskins complained to Marie S. Vega, manager in SCE's Equal Opportunity Department. Vega's investigation revealed no evidence to support Greer's and Hoskins's claims that they had more duties than their peers. She debriefed director of corporate security, Robert Sypult in February 2007. Vega did not disclose plaintiffs' internal complaints to Perman until after October 11, 2006, and did not recall ever disclosing these complaints to Robertson.
Meanwhile, Robertson documented the October 3, 2006, events in emails and memoranda. He also sent a summary of the events to Susan Heller, M.D., SCE's fitness for duty officer, seeking her assistance because "tensions are brewing" with Greer who had access to a firearm.
Dr. Heller responded that "based on your observations, I am definitely concerned about her [Greer's] behavior. The first priority would be to remove the gun from her possession and the next would be to discuss with her the inappropriate behavior she has displayed." (Italics added.) Dr. Heller was hesitant to "go down the performance management route or the fitness for duty route . . . ." Perman also viewed Greer's behavior as unacceptable, and with the agreement of the Human Resources and Law Departments, they decided that Greer should be given a letter of counseling and temporarily relived of her firearm.
Robertson issued Greer the disciplinary memorandum on October 11, 2006. The memorandum quoted from policy No. 301, which establishes as a ground for discipline, "`[the refusal] to accept or follow orders or directions from proper authorities or any other form of insubordination.'" The memorandum explained it was presented to Greer because "you have exhibited insubordinate and inappropriate behavior towards me [Robertson] and unprofessional behavior toward others. [¶] On October 2, 2006, I notified you to attend a meeting with me . . . in my office on October 3, 2006. I had directed you to attend, you refused to do so with [sic] without any valid justification or excuse. On October 3, 2006, you were insubordinate and defiant when you refused to meet with Ross Oswald and myself [sic]. . . . Your behavior in these instances was unacceptable and must not occur in the future." Robertson required Greer to immediately give up her company-issued firearm for 30 days. The memorandum concluded with, "I hope and fully expect that you will respond favorably to my counseling on this issue and that you can return to the productive and professional work I believe you are capable of performing. However, your failure to meet these expectations and any further incidents of unprofessional or insubordinate behavior will result in further disciplinary action up to and, [sic] including suspension and/or termination of your employment. I value your knowledge and experience and look forward to continue working with you." Greer refused to sign the memorandum because she did not agree with the contents.
Nine days later, on October 20, 2006, Greer filed an internal complaint through SCE's Focus on Resolution Program, SCE's internal dispute resolution procedure. Greer's complaint requested as a remedy that the disciplinary memorandum be removed from her file, and that Robertson and Perman apologize.
Greer met with Sypult. After reviewing Greer's Focus on Resolution, he wrote to Greer his determination that she had overreacted to the initial incident which led to an escalation ultimately resulting in her insubordination by refusing to attend the scheduled meeting with Oswald and Robertson. The meetings were scheduled as part of Oswald's and Robertson's tasks in their new roles as regional managers and "was not investigative in any sense," and so "the crux . . . of this issue was miscommunication . . . ." Sypult concluded by agreeing to review Greer's conduct upon her request, after a six-month period, and consider removing the memorandum from her employee file providing there were no further acts of misconduct in the workplace.
In January 2007, Greer and Hoskins both received favorable performance evaluations from their former manager Tom Jacobus, with Robertson's input and agreement based on the roughly two months that he supervised Greer. Greer received the largest percentage increase of all seven security coordinators. In 2007, Robertson gave Hoskins two spot bonuses of $500 for doing a good job covering Greer's locations.
Greer complained again to Vega on February 21, 2007. Most of her allegations involved sex discrimination. Vega questioned Robertson, Hoar, and Muckelroy about Greer's claims and found there was probable truth to her first claim, but no merit to the other two, and there was no evidence to support Greer's claim that Robertson targeted her.
Greer took a temporary, total disability leave, effective February 27, 2007, for major depression and panic disorder.
Robertson declared that at no time was he ever made aware that Greer had complained to the SCE Equal Opportunity Department that he had mistreated her on the basis of race or gender, until April 2007. He declared he had never made any decision with regard to Greer's or Hoskins's duties or work assignments because of race or gender.
On April 9, 2007, Greer and Hoskins filed their charges against SCE with the Department of Fair Employment and Housing (DFEH). They then filed this lawsuit. After dismissing certain of their causes of action and certain defendants, the operative complaint against SCE alleged race discrimination (3d cause of action) and intentional infliction of emotional distress on behalf of both plaintiffs (6th cause of action), and retaliation in violation of the FEHA and of public policy on behalf of Greer (4th and 5th causes of action). Specifically, the operative complaint alleged plaintiffs are African-Americans and employees of SCE, and they performed their jobs "satisfactorily." Plaintiffs allege defendants singled plaintiffs out for questioning and investigation into their job performance because of their race, whereas defendants did not subject Caucasian workers to this type of scrutiny. Greer alleged that she was subjected to an adverse employment action when she was issued a disciplinary memorandum. The disciplinary memorandum was motivated by her race, because she questioned Roberson about his threats to investigate her, and in retaliation for her complaints to SCE's Equal Opportunity Department. Hoskins alleged that in 2004, SCE removed him from his position at the Rosemead GO-4 Building and replaced him with a Caucasian worker.
In their final cause of action, plaintiffs alleged that SCE's "aforementioned actions" were extreme and outrageous, and caused plaintiffs to suffer emotional distress.
After answering the complaint generally denying each allegation, SCE moved for summary judgment on the ground, inter alia, that Greer and Hoskins could not establish they suffered an adverse employment action, and Greer could not establish a causal connection between her protected activity and an adverse employment action. SCE also asserted that plaintiffs could not establish intentional extreme and outrageous conduct.
At the initial hearing on the motion, the trial court expressed its frustration with the lack of clarity in SCE's papers about compensation and plaintiffs' lack of admissible evidence. The court ordered the parties to submit supplemental papers to crystallize their positions. No one mentioned to the trial court that, a week earlier, plaintiffs' had dismissed the first and second causes of action, and as a result, the complaint no longer alleged disparate compensation, racist remarks, and failure to promote as adverse employment actions taken against plaintiffs.
After ruling on evidentiary objections, the trial court granted SCE's motion. The court ruled, based on the compensation and failure-to-promote allegations, that defendants provided legitimate, nondiscriminatory reasons for its decisions and in opposition, plaintiffs offered no competent admissible evidence to support their claim of discriminatory animus, or adverse actions, and they failed to establish pretext. The court also ruled as to the retaliation causes of action that Greer submitted no competent, admissible evidence that Robertson was aware that Greer had complained about discrimination before he issued the disciplinary memorandum. As for the emotional distress cause of action, the court determined that decisions concerning observed misconduct do not satisfy the outrageous element. Plaintiffs filed their timely appeal after the trial court dismissed their lawsuit.
Plaintiffs contend the trial court erred in sustaining evidentiary objections to their declarations and in granting the summary judgment motion.
As a threshold matter, plaintiffs challenge the trial court's evidentiary rulings. Specifically, they attack the trial court's rulings on SCE's objections to the supplemental declarations filed by Greer and Hoskins.
Citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, plaintiffs argue that the mere fact that the trial court "sustained the vast majority of these objections. . . shows error." In Nazir, the trial court was faced with 324 pages of evidentiary objections, consisting of 764 specific objections from the defendant's alone. No mention was made at the hearing to the voluminous objections. Thereafter, the court's ruling simply stated that the plaintiff's "`47 evidentiary objections are OVERRULED,'" the "`Defendants' evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants' evidentiary objections are SUSTAINED.'" (Id. at pp. 254-255.) The appellate court concluded, "It is true that the trial court `ruled,' however conclusory, that all objections save one were sustained. This is hardly a ruling, as it could not provide any meaningful basis for review." (Id. at p. 255.)
This case is unlike Nazir. SCE filed 84 objections to two declarations.
Plaintiffs argue that "checked boxes and broad references to the California Evidence Code hardly equate to a meaningful basis for the objections to allow a higher Court to review." Yet, not only did SCE list the legal grounds for each evidentiary objection, but its objections were submitted in exactly the form delineated in the California Rules of Court, rule 3.1354. On appeal, plaintiffs make no attempt to demonstrate how each evidentiary ruling was erroneous. The failure to show trial court error is fatal to plaintiffs' challenge to the evidentiary rulings. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003, fn. 2.)
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Contrary to plaintiffs' assertions, summary judgment "`is no longer called a "disfavored remedy." It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit.' [Citation.]" (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.)
We begin with the rudimentary principle in summary judgment procedure that "`the pleadings "delimit the scope of the issues" to be determined and "[t]he complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action." [Citation.]'" (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)
"Thus, a `defendant moving for summary judgment need address only the issues raised by the complaint . . . ." (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1253.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. (Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1418; Code Civ. Proc., § 437c, subd. (p)(2).)
If the defendant makes the required showing, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or as to a defense to that cause of action. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 851.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.
On appeal, we review summary judgment orders de novo. (Sturgeon v. Bratton, supra, 174 Cal.App.4th at p. 1418.) We make "`an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citations.]" (Ibid.) We "consider[] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We construe the moving party's affidavits and declarations strictly, and the opposing party's evidence liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it. (Castillo v. Express Escrow Co. (2007) 146 Cal.App.4th 1301, 1306.)
With particular respect to discrimination cases, the California courts have adopted a "three-stage burden-shifting test established by the United States Supreme Court . . . ." articulated in Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 354. At trial, the plaintiff-employee sets forth sufficient evidence to establish a prima facie case of discrimination. (Id. at pp. 354-356.) If the employee succeeds in establishing a prima facie case of age discrimination, the burden shifts to the employer moving for summary judgment to offer a legitimate, nondiscriminatory or nonretaliatory reason for the adverse employment action. (Id. at pp. 355-356.) If the employer fails to make this showing, the employee prevails.
If, however, the employer does articulate a valid, nondiscriminatory reason for its action, the presumption of discrimination or retaliation drops out and the burden shifts back to the employee to demonstrate, by competent evidence, that the employer's stated reason for the adverse employment decision was in fact a pretext or cover-up for discrimination. (Muzquiz v. City of Emeryville, (2000), 79 Cal.App.4th 1106, 1116-1117.)
Application of this three-stage test in the context of the summary judgment, however, means a defendant seeking summary judgment bears the initial burden of negating an essential element or establishing a defense (Code Civ. Proc., § 437c, subd. (o)(2)) and that plaintiffs "will not be required to respond unless and until the defendant has borne that burden. [Citations.] In this sense, upon a defendant's summary judgment motion in an employment discrimination action `the burden is reversed . . . .' [Citation.]" (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730-1731.) If the moving party defendant carriers its initial burden, then the plaintiff must demonstrate that the defendant's showing was in fact insufficient or that there is a triable issue of fact material to the defendant's showing. (Id. at p. 1732.)
Applying these principles here, the elements of a prima facie case of discrimination are that plaintiffs: (1) were members of a protected class, (2) were qualified for and performing competently in the position held, (3) suffered an adverse employment action, and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.)
To establish a prima facie case of retaliation, the employee must show: (1) plaintiff engaged in a protected activity, (2) her employer subjected her to adverse employment action, and (3) there is a causal link between the protected activity and the employer's action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 217; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Regardless of whether a FEHA plaintiff alleges retaliation or discrimination, one constant element is that the employer must have subjected the employee to an adverse employment action that materially affected the terms, conditions, or privileges of employment. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 387.) In discrimination claims, plaintiffs must show they suffered the adverse action because of their protected characteristics. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) ¶ 7:345, p. 7-63.) In retaliation causes of action, employees must show that they suffered adverse action in retaliation for their exercise of protected rights. (Id. at ¶¶ 7:393.20, p. 7-74 & 7:767, p. 7-123.)
In discrimination claims, "adverse action affecting `terms, conditions, or privileges of employment' (actionable) is contrasted with changes that merely displease the employee (not actionable). [Citation.] In other words, changes in terms and conditions of employment must be both substantial and detrimental to be actionable. [Citation.] `Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section[] 12940[, subdivision] (a).' [Citation.]" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373, italics added, citing Yanowitz v. L'Oreal USA, Inc (2005) 36 Cal.4th 1028, 1042 & Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.)
In retaliation claims, an "adverse employment action" is one that "materially affects the terms, conditions, or privileges of employment, rather than simply [subjects] the employee . . . to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity." (McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at p. 386, citing Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1051-1052.) "`A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.] `"[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action." [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." [Citation.]' [Citation.] The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment. [Citations.]" (McRae v. Department of Corrections & Rehabilitation, supra, at pp. 386-387.)
Preliminarily, we must identify the issues as framed by the pleadings. (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.) Plaintiffs' first two causes of action alleged as adverse employment actions that defendants limited promotional opportunities for African-Americans, compensated plaintiffs at a lower rate than other employees based on race and gender, and used racially offensive language. In moving for summary judgment, defendants tendered a plethora of facts showing that plaintiffs were paid as well as, or even better than, a Caucasian security coordinator, and that the highest paid security coordinator was African-American. SCE also asserted that Greer and Hoskins were awarded among the highest pay raises, all in an effort to demonstrate that plaintiffs' compensation was commensurate with non-African-American employees.
But, we reiterate a basic tenet of summary judgment jurisprudence, namely, that the pleadings delimit the issues that may be considered in a motion for summary judgment. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750.) The only place in the complaint where plaintiffs alleged lack of pay and promotional opportunities as a form of adverse employment action was in the first and second causes of action for harassment based on race and gender. There, plaintiffs also alleged other facts of a hostile work environment such as Sypult's alleged reference to SCE management as "`Grand Dragons,' "and threatening Greer with an investigation. However, plaintiffs dismissed the first and second causes of action and so those allegations are no longer part of this lawsuit.
We are aware that the operative complaint alleges in the third, fourth, and fifth causes of action that "As a proximate result [of] Defendants' discrimination, Plaintiffs have suffered and continues [sic] to suffer substantial losses in earnings, and other employment and retirement benefits and have suffered and continue to suffer embarrassment, humiliation, and mental anguish all to their damage in an amount according to proof." (Italics added.) But this is not an allegation of adverse employment action; it is an allegation of damages. Nor did plaintiffs seek to amend their complaint to allege disparate compensation as an adverse employment action. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1253.)
Notwithstanding this reality, the trial court requested SCE file supplemental briefing to clarify its evidence about compensation. The court's ultimate judgment analyzed the compensation issue at length and discussed the racist remarks.
In our view, plaintiffs' dismissal of the first and second causes of action eliminated from their lawsuit the following alleged adverse employment actions: (1) disparate compensation; (2) disparate promotional opportunities; and (3) racist remarks. Thus, we conclude that the trial court properly granted summary judgment, only for a different reason than that upon which the court relied. "`[I]t is axiomatic that we review the trial court's rulings and not its reasoning.' [Citation.] Thus, a reviewing court may affirm a trial court's decision granting summary judgment for an erroneous reason. [Citation.]" (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.) Accordingly, we continued this case and notified the parties of our intent to affirm the summary judgment on grounds not relied on by the trial court, and requested that the parties file supplemental appellate briefing (Code Civ. Proc., § 437c, subd. (m)(2)) to address whether the dismissal of the first and second causes of action eliminated from the case the adverse employment actions of failure to promote, racists remarks, and disparate pay. Upon review of the supplemental briefs, we conclude that these three alleged adverse employment actions are not part of this lawsuit.
Plaintiffs responded that we should consider these adverse employment actions because the trial court did. They argue, where the trial court considered documents when granting summary judgment, that we should not limit our consideration to what was alleged in the operative complaint. But we review summary judgment orders de novo and hence are not bound by the trial court's ruling. (Sturgeon v. Bratton, supra, 174 Cal.App.4th at p. 1418.) Furthermore, according to the well-established rule, the pleadings delimit the scope of the issues to be determined on summary judgment and the complaint measures the materiality of the facts proffered in a defendant's summary judgment motion. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1253.) Once these causes of action were dismissed, the question of what defendants paid plaintiffs, whether they failed to promote plaintiffs, and whether racist remarks were made are simply not material. It is futile to address allegations that have been dismissed. We do not engage in idle acts. (Civ. Code, § 3532.)
Plaintiffs also argue that the complaint's paragraph 32 incorporated the dismissed adverse employment action allegations.
Facts about compensation were raised in SCE's summary judgment motion, which was filed before the first and second causes of action were dismissed. After dismissal of those allegations, while disputed facts about compensation may be relevant to the question of damages, pretext, or discriminatory animus, we never reach that portion of plaintiffs' lawsuit because, as will be more fully explained, plaintiffs failed to demonstrate a triable issue as to an element of their prima facie case. Stated otherwise, no amount of dispute of fact about compensation, racist comments, failure to promote is material to the existence of an adverse employment action as alleged in the operative complaint. (Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627.)
Turning to plaintiffs' lawsuit, their operative complaint, after the dismissal of the first and second causes of action, alleges the following adverse employment actions: (1) singling plaintiffs out for questioning and investigating their job performance because of their race but not subjecting Caucasian workers to this type of scrutiny; (2) issuing Greer a disciplinary memorandum and reducing her work responsibilities; and (3) in 2004, removing Hoskins from his position at the Rosemead GO-4 Building and replacing him with a Caucasian worker.
In moving for summary judgment, SCE argued that plaintiffs were not subjected to an adverse employment action, and Greer could not establish a causal connection between any protected activity and her alleged adverse employment action.
Addressing the three alleged adverse employment actions in order, defendants' summary judgment motion demonstrated first, contrary to plaintiffs' assertion, that SCE did not single plaintiffs out on the basis of race for investigation into job performance. It is undisputed that Robertson and Oswald scheduled the October 2006 meetings, for all seven security coordinators; SCE did not single out plaintiffs on any basis, let alone race. Furthermore, SCE demonstrated the meetings were designed to help the newly appointed Roberston and Oswald better understand the security coordinators' job to improve work efficiency, with the result that they did not constitute an investigation into job performance. Accordingly, the meetings were not detrimental actions. Nor did they impair plaintiffs' prospects for advancement, or in any way affect the terms, conditions, or privileges of plaintiffs' employment. (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 373.) Hence, the meetings did not constitute an adverse employment action.
In an attempt to raise a triable factual issue, plaintiffs asserted only facts going to whether there was a discriminatory motive behind the meetings. Plaintiffs listed an October 2007 job posting; disparate compensation; treating Greer and a Caucasian security coordinator differently with respect to their guns; and two instances of a racist comment. None of these facts raises a dispute that all security coordinators, not just plaintiffs, were directed to attend these meetings with Robertson and Oswald to discuss job duties. Plaintiffs also attempt to create a dispute by insisting that the questions of the African-American security coordinators were "investigatory and disciplinary in nature." For this fact, plaintiffs cite to Greer's deposition which states nothing of the kind. There being no disputed fact that the meetings did not constitute an adverse employment action, the burden never shifted to plaintiffs to show discriminatory animus or pretext. (Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at pp. 1730-1731.)
The second adverse employment action asserted in the operative complaint is Greer's October 11, 2006 disciplinary memorandum. Greer claims the memorandum was motivated by her race, "because Greer questioned Robertson about his threats to investigate her," and was issued in retaliation for her October 4, 2006 complaint to SCE's Equal Opportunity Department.
In its summary judgment motion, SCE demonstrated, by declaration supported by undisputed evidence, that the October 11, 2006 memorandum was not an adverse employment action because it did not materially alter the terms and conditions of Greer's employment. (Horsford. v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 373.) First, Greer effectively admitted the basis for the memorandum, having acknowledged her refusal to attend the October 3, 2006 meeting as directed. Second, Greer suffered no loss of status, prospects for advancement, or pay as the result of the memorandum. In fact, only months later, Greer received a favorable performance evaluation and a hefty pay raise, based in part on recommendation from Robertson. Apart from the fact that Robertson took away her company-issued gun for 30 days, as Dr. Heller advised, Greer lost no responsibility and her ability to perform her job was not impaired as the result of Robertson's memorandum. (See Michael v. Caterpillar Financial Services Corp. (6th Cir. 2007) 496 F.3d 584, 594 [requiring plaintiff to turn in laptop and brief placement on paid administrative leave not materially adverse actions].) Third and more important, the memorandum was merely a warning. It advised Greer that if her conduct recurred, disciplinary action would follow. As such, it was not permanent. In fact, Sypult agreed to remove the memorandum from Greer's personnel file if there were no further instances of insubordination or unprofessional conduct. (Cf. Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 646 [no adverse employment action where employee suffered no change in job responsibilities or title, was not demoted, and salary, bonus structure, benefits, and all other forms of compensation suffered no impact].)
To demonstrate a triable issue of fact, Greer asserted first, that Robertson's motive for the memorandum was racial discrimination. However, discriminatory animus is irrelevant if the memorandum did not constitute an adverse employment action in the first place. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851.) Greer also asserted that her responsibilities were reduced as the result of the memorandum, that her career at SCE was "ruined," and her chances of promotion "forever sabotaged." But to establish this fact, she cites to inadmissible portions of her declaration. In any event, "most circuits require that the action `be more disruptive than a mere inconvenience or an alteration of job responsibilities.'" (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.)
SCE's summary judgment motion also demonstrated that Greer could not establish the causation element of her retaliation cause of action. "`Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.' [Citations.]" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70.) SCE demonstrated that Greer could not show this causal link between Greer's protected activity and the memorandum, even if it were an adverse employment action. Robertson declared he had no knowledge of Greer's October 4, 2006, internal complaint to SCE's Equal Opportunity Department when he issued the memorandum. Vega declared that she did not reveal plaintiffs complaints to Sypult or Perman until after the memorandum was issued and she did not recall ever telling Robertson. Greer's statement to Oswald that she viewed Robertson's attitude on October 3, 2006, as harassment does not constitute a complaint to the Equal Opportunity Department.
To summarize, SCE demonstrated by competent undisputed evidence that the disciplinary memorandum did not constitute an adverse employment action and was not issued in retaliation for Greer's protected activity. In response, Greer failed to dispute these facts.
As for the third alleged adverse employment action, Hoskins claims that in 2004, he was removed from his position at the Rosemead GO-4 Building and replaced there by a Caucasian worker.
Assuming without deciding that this removal was a demotion, SCE's summary judgment motion showed indisputably that the removal occurred more than a year before he filed his DFEH administrative charge in April 2007. Thus, his claim is stale. (Gov. Code, § 12960, subd. (d).) To dispute this, Hoskins raises a legal argument, namely, that the continuing violation doctrine applies to change the statute of limitations. Yet, when the alleged adverse employment action is a discrete act, such as a demotion, as opposed to a continuing course of conduct, the continuing violation doctrine does not apply. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1057-1059, citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 821-823.) Hoskins has not raised a triable issue of fact, and so this alleged adverse employment action is not recognizable.
To summarize, SCE demonstrated, by factually supported declarations, that the October 2006 meetings, the disciplinary memorandum, and Hoskins' alleged demotion listed in the complaint did not constitute adverse employment actions, and that there is no link between Greer's protected activity and any adverse employment action, with the result that SCE negated at least one essential element of plaintiffs' discrimination and Greer's retaliation causes of action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) In opposing the summary judgment, plaintiffs did not raise a triable issue of fact as to this element of their prima facie case, and so the burden never shifted to plaintiffs to demonstrate pretext. (See id. at p. 355.) Therefore, the trial court properly granted summary adjudication of the third through fifth causes of action.
The complaint alleged that SCE's "aforementioned actions" were extreme and outrageous, malicious, and caused plaintiffs to suffer humiliation and emotional distress and indeed caused plaintiffs severe emotional distress.
An essential element of the tort of intentional infliction of emotional distress is "`outrageous' conduct by the defendant." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.) "`"[M]ajor outrage is . . . essential to the tort . . . ."'" (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) To qualify, the conduct "`must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.' [Citation.]" (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) "Behavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiff's interest. [Citation.]" (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) Whether behavior is so extreme and outrageous is a legal determination to be made by the court, in the first instance. (Fowler v. Varian Associates, Inc., supra, at p. 44.) However, "`[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. [Citations.]" (Lagies v. Copley (1980) 110 Cal.App.3d 958, 974-975, disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738, fn. 23.)
Here, as explained, neither disparate compensation nor racial epithets is alleged in the operative complaint. The allegations in the operative complaint are: (1) a meeting to discuss the work of all security coordinators, not just African-American employees; (2) the issuance of a memorandum for insubordination which Greer admitted and which was a warning only; and (3) an alleged demotion that is unproven because stale. This conduct simply does not describe extreme and outrageous behavior according to Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [managing personal not outrageous conduct]. Therefore, the trial court properly summarily adjudicated this cause of action and properly granted summary judgment of the entire operative complaint.
The judgment is affirmed. Each party is to bear its own costs on appeal.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
