FYBEL, J.
Plaintiff Angeline Buenviaje appeals from a summary judgment entered in favor of her former employer Pacific Bell Directory and PBD Holdings (collectively referred to as defendant), as to her claims for national origin discrimination, violation of Government Code section 12951, and wrongful termination in violation of public policy. (All further statutory references are to the Government Code unless otherwise specified.) The gravamen of plaintiff's complaint is that defendant implemented and enforced an English-only language policy in the workplace, which ultimately resulted in the termination of her employment. Plaintiff was born in the Philippines and speaks Tagalog as well as English.
We affirm. In support of its motion for summary judgment, defendant produced undisputed evidence it received many complaints from employees that plaintiff acted like a workplace bully who called coworkers offensive names, was constantly disruptive, and, on one occasion, expressed the desire to kill a co-employee to whom she referred to, in Tagalog, as the devil. Defendant's evidence showed that following its investigation of the complaints, it concluded plaintiff engaged in misconduct and terminated her employment for that reason. Plaintiff failed to produce any evidence that showed defendant's asserted legitimate business reason for terminating plaintiff's employment was a pretext for intentional discrimination.
Plaintiff produced evidence defendant directed her and three of her coworkers, with whom she ridiculed other employees in Tagalog, to refrain from communicating in Tagalog at work; she produced no evidence she suffered any adverse employment action because of her failure to comply with any such directive or the existence of any other "policy" restricting language in the workplace, whether written or oral. As we discuss in detail post, plaintiff's evidence does not support the finding, as a matter of law, that defendant implemented or enforced an English-only language policy within the meaning of section 12951. Even if plaintiff's evidence did create a triable issue of material fact as to whether such a policy existed, we conclude the policy was justified under the circumstances by a business necessity within the meaning of section 12951, subdivisions (a)(2) and (b).
Plaintiff was born in the Philippines and speaks Tagalog, a national language of the Philippines. She worked for defendant as a quality control analyst from October 27, 1990 until September 15, 2008. Plaintiff worked in the quality department; some of the employees in that department were able to speak Tagalog, Vietnamese, or Spanish. From 2005 until the date plaintiff's employment was terminated, plaintiff reported to Linda Harris, the manager of the quality department, who in turn reported to Susan Johnson, the senior manager of publishing and design services.
In April 2008, employee Helen Reaves told Harris that she felt intimidated and harassed by plaintiff. In May, several employees complained to manager Ana Blodgett about plaintiff's "loud and disruptive" behavior at work and her calling co-employees derogatory names in Tagalog.
Defendant received written complaints about plaintiff from several employees. One written complaint, dated June 11, 2008, stated, inter alia, that plaintiff used "foul language" in Tagalog and along with co-employees, Nora Luna, Socorro Uy, and Annie Palisoc was heard using "nicknames for people they don't like so no [non-]Tagalog speaking person can accuse them of speaking directly about another person. Then they use the nicknames to say der[o]gatory things in Tagalog" and "use Tagalog to send Q messages so non-Tagalog speakers can't read what is on their screens."
Another complaint, dated June 17, 2008, expressed an employee's experience of having been added to plaintiff's "unliked persons" list because plaintiff blamed her for "having overtime cancelled one day." The complaint stated plaintiff "has told others in her native language of Tagalog that they are not to offer me food, this was told to me by [another employee] who speaks and understands the language." The employee also stated that plaintiff has nicknames for various employees and that the employee had "begun to feel very uncomfortable when Tagalog is spoken and much laughter ensues, for I feel that it is at the expense of myself or someone else." The employee expressed fear that she would suffer retaliation by plaintiff for voicing her complaint.
Another employee complained plaintiff insulted other employees (although it is not clear whether those insults were made in English or Tagalog). Plaintiff's comments included statements such as an employee's husband only married her to gain citizenship status, two other employees' husbands are gay, and another employee is "[m]entally sick." The employee complained, "the reason people hesitate[] to openly come out against [plaintiff] is because of the fact that they have seen Management not lifting a finger to correct the problem."
Defendant was provided another complaint, dated June 17, 2008, which stated: "The environment here in Quality has changed since a group of employees have no regard[] [for] work ethics & respect [for] other people. It is so depressing to come to work because the environment is so hostile, initiated by one person, [plaintiff] & involves some others, Socorro [Uy], Annie [Palisoc], Rudy [Villanueva] & Nora [Luna]. She is so disrespectful towards her co-employees, constant criticizing, laughing [at] almost everyone & some people who pass[] by. Almost all her co-employees have nicknames, Hyo as the Devil, Heather a Pig, Cornelio the Senator, Theresa an Old Maid, Michael Di Massa Shrek . . . and foul language she uses is insulting to hear. How would you feel if you are called a devil & your unborn child a spirit/devilish, there is no literal translation for what she names the baby in English, that is the closest. What if you only have 2 pairs of shirt to wear to work, that is what her comment to Heather is. That is what she calls . . . . No one is spared not even her friends . . . . She does not care if people would hear her comments even some do not understand [be]cause it i[s] said in Tagalog, but to hear her ridicule a person is just heartbreaking. People are upset w/ her bad behavior & noise, her constant Q link messages esp. to Socorro & Annie. Out of the blue they will just laugh, who knows if that message is for me, [be]cause she does not talk to me, w/c I am so thankful. It is so bothersome [be]cause I sit in between them & it happens almost everyday & Sat. People don't want to speak up [be]cause she might retaliate, knowing her bad behavior. . . . I just keep quiet & never give in to her comment about me [be]cause I need my job so I just brush it aside & don't want to be the cause of any conflict w/ a co-employee. But she has to be STOPPED."
Another employee submitted a complaint, dated June 17, 2008, in which she stated, inter alia: "People can not work when she is around. She has been harassing people. The non-Filipino speaking workers cannot understand it but they are being called names. Is that right? . . . This is a harassment lawsuit waiting to happen." (Boldface omitted.) The employee further stated plaintiff knows "she can get away with it. Management seems to turn a blind eye on this matter. I wonder why? I am surprise[d] that I am just being asked about this right now. I don't know if something will happen with this report[.] Will it fall on deaf ears again? Will it be shoved inside another drawer. I hope not. She has been doing this for a long time, management knows about this. I'm sure this is not the first complaint."
On June 26, 2008, an employee told Blodgett that she heard plaintiff say: "I want to kill that devil (demonio)" in reference to employee Hyo Lee whom she referred to as "Demonyo" (devil).
At some time in June 2008, Karen Humphries, one of plaintiff's coworkers who served as a union representative but had no managerial or supervisory authority, told plaintiff that there had been complaints about her using inappropriate language in Tagalog and threatening to kill a coworker. Humphries told plaintiff to speak English so that everybody could understand her. Plaintiff responded that Humphries's statement that she speak only English was against the law. Humphries told plaintiff she would speak with the human resources department. Shortly thereafter, Humphries told plaintiff that the human resources department said plaintiff could speak Tagalog only during breaks and lunch periods.
On July 8, 2008, Harris held a meeting with plaintiff, Humphries, Cathy Roodzant, and Joanne Malik. During the meeting, Harris discussed the complaints she had received about plaintiff using derogatory names for coworkers and engaging in inappropriate behavior.
Harris also conducted individual meetings with seven employees who were Filipino and spoke Tagalog. After meeting with those employees, Harris determined the employees' complaints about plaintiff were consistent and that there was evidence of a pattern of inappropriate behavior and comments by plaintiff, which were having a serious negative effect in the workplace.
On August 5, 2008, Harris told plaintiff to only communicate in English when she used the Q-message system; Harris does not speak Tagalog. Harris did not tell plaintiff that she could not speak Tagalog at work. Plaintiff did not complain to Harris about being told not to use Tagalog at work; plaintiff thereafter continued to use Tagalog.
On August 12, 2008, Harris met with plaintiff, Humphries, Roodzant, and Joe Aldana, at which time Harris reviewed plaintiff's Q-messages and the English translations of those messages which plaintiff agreed were accurate. At the conclusion of that meeting, Harris suspended plaintiff, pending a final outcome of the investigation into the employee complaints.
Sometime in August 2008, Harris told Villanueva and Uy not to use Tagalog in the Q-message system or speak Tagalog during work hours (except the lunch hours and break times). On August 12, Harris told Luna, "[d]on't talk in Tagalong. It is not good because others do not understand it. People are offended."
On August 13, 2008, plaintiff wrote an e-mail to Harris and Johnson, apologizing and stating she had learned her lessons and would try to be a better person. On August 19, plaintiff wrote an e-mail to Humphries, stating she had learned a lesson, was sincerely sorry for everything, and would try to focus on her job and do her best to be a better person.
Harris presented the findings from her investigation to Johnson, LaTanya Eiland, and Kristiansen. After reviewing Harris's findings, defendant decided to terminate plaintiff's employment. On September 12, 2008, Johnson spoke with plaintiff on the telephone to advise her that her employment was terminated. Defendant sent plaintiff a letter confirming the termination of her employment because of "numerous instances of serious, inappropriate workplace behavior, including threatening a co-worker."
Plaintiff filed a complaint against defendant for (1) discrimination based on national origin; (2) violation of section 12951; (3) wrongful termination in violation of public policy; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. The complaint alleged that in June 2007, Humphries told plaintiff not to speak in Tagalog while at work. The complaint alleged plaintiff complained about the prohibition to speak in Tagalog and "[a]s a result, on or about August 12, 2008, Plaintiff was suspended indefinitely."
Defendant moved for summary judgment. The trial court granted summary judgment in favor of defendant, stating in a minute order: "All of Plaintiff's evidentiary objections are overruled. The Court rules as follows on Defendants' evidentiary objections: No.'s 1, 9, 12-24, 26, 27, 30, 34 and 35 are Sustained. No.'s 2-8, 10-13, 25, 28 and 31-33 are Overruled. Plaintiff agrees that the Fourth Cause of Action for Intentional Infliction of Emotional Distress and the Fifth Cause of Action for Negligent Infliction of emotional Distress should be dismissed."
Judgment was entered and plaintiff appealed.
"`A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." [Citation.]' [Citation.] `[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." [Citations.]' [Citation.]" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
"In reviewing a trial court's grant of summary judgment, we apply the following rules: `"[W]e take the facts from the record that was before the trial court when it ruled on that motion"' and `"`"review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."'"' [Citation.] In addition, we `"liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
In the complaint, plaintiff alleged defendant violated section 12951 because it "prohibit[ed] the use of the language Tagalog in the workplace." Section 12951 provides: "(a) It is an unlawful employment practice for an employer, as defined in subdivision (d) of Section 12926, to adopt or enforce a policy that limits or prohibits the use of any language in any workplace, unless both of the following conditions exist: [¶] (1) The language restriction is justified by a business necessity. [¶] (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction. [¶] (b) For the purposes of this section, `business necessity' means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."
Section 12951 constituted the codification of the Fair Employment and Housing Commission's regulation which similarly prohibits the use of restrictive language policies in the workplace as follows: "An employer may have a rule requiring that employees speak only in English at certain times if the employer can show that the rule is justified by business necessity [citation], and if the employer has effectively notified its employees of the circumstances and time when speaking only in English is required and of the consequences of violating the rule." (Cal. Code Regs., tit. 2, § 7289.5, subd. (d).) As observed by a legal commentator, proponents of the enactment of section 12951 asserted that "workplace language policies discriminate against protected groups, create an oppressive and intimidating workplace, harm morale by forcing bilingual employees to monitor their speech, and may be used as a tool to `mask intentional discrimination based on national origin.'" (Turner, Public Entities, Officers, and Employees: Chapter 295: Codification of California's Fair Employment and Housing Commission Regulations Governing Workplace Language Policies (2002) 33 McGeorge L.Rev. 433, 439.)
The Equal Employment Opportunity Commission's guidelines contain a similar general rule against the implementation of workplace English-only language rules, which expressly cites the same policies expressed by the proponents of section 12951, discussed ante. Part 1606.7(a) of title 29 of the Code of Federal Regulations provides: "When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the [Equal Employment Opportunity] Commission will presume that such a rule violates title VII and will closely scrutinize it." (Fn. omitted.) Part 1606.7(b) of title 29 of the Code of Federal Regulations provides, however, that "[a]n employer may have a rule requiring that employees speak only in English at certain times when the employer can show that the rule is justified by business necessity."
Here, there is no evidence defendant issued, much less, enforced an English-only language policy within the meaning of section 12951. There is no evidence defendant communicated a policy, either in writing or orally, that its employees must only speak English in the workplace. It is undisputed that defendant's quality department included employees who spoke Vietnamese, Spanish, and Tagalog at work. There is no evidence any employee was disciplined for speaking a foreign language.
Plaintiff argues that the following evidence supports the reasonable inference defendant had an English-only language policy: (1) in May 2008, Johnson referred to the situation as "the Tagalog problem"; (2) in June 2008, Humphries met with plaintiff and told her to speak only in English, which restriction plaintiff said was against the law; (3) Humphries told plaintiff that the human resources department stated plaintiff could speak Tagalog only during lunch hours and breaks; (4) in August 2008, Harris told plaintiff, Villanueva, and Uy not to communicate in Tagalog when using the Q-message system; (5) in August 2008, Harris told Villanueva and Uy not to speak Tagalog except during the lunch hours and break times; and (6) on August 12, Harris told Luna, "[d]on't talk in Tagalog. It is not good because others do not understand it. People are offended."
Plaintiff's evidence does not create a triable issue of material fact as to the existence of an English-only language policy. Plaintiff's evidence shows Johnson's comment regarding the "Tagalog problem" did not reflect a problem with the Tagalog language. Instead, the comment was made in response to a report that plaintiff was disruptive by speaking loudly in Tagalog to Villanueva. Johnson's comment was made in an e-mail responding to an e-mail Harris had sent to her, in which Harris reported that she observed plaintiff standing over Villanueva "talking loudly in Tagalog." Harris also reported that "99% of the complaints are people talking Tagalog," but that Debi Kristiansen of the human resources department "was not comfortable with [Harris] stating Tagalog could not be spoken except on breaks and lunches." Johnson responded to Harris, "[w]hat was [Kristiansen]'s suggestion to address the Tagalog problem?"
As for Humphries's suggestion to plaintiff that she not use Tagalog in the workplace, it was just that, a suggestion, because Humphries was one of plaintiff's coworkers who had no supervisory or managerial authority to establish any English-only language policy.
Plaintiff's evidence that Harris directed plaintiff, Villanueva, and Uy not to communicate in Tagalog when using the Q-message system, told Villanueva and Uy not to speak Tagalog except on breaks and during lunch hours, and told Luna not to speak Tagalog at all in the workplace, does not establish the existence of an English-only language policy either. Harris's directive was limited to the individuals who were reportedly involved in inappropriate conduct toward fellow employees. That conduct included making derogatory comments about co-employees orally and in the Q-message system in the Tagalog language to avoid detection. There is no evidence any other employees' language was restricted in any way. Thus, we conclude there is insufficient evidence for a reasonable jury to find the existence of an English-only language policy within the meaning of section 12951.
Even if we were to assume plaintiff showed that a triable issue of material fact exists as to whether defendant issued such a policy, the evidence before us shows it was supported by business necessity as a matter of law. It was narrowly focused on plaintiff and those with whom she conversed in Tagalog who used that language to engage in inappropriate and offensive conduct against other employees. (See Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) ¶ 7:248.6, p. 7-44 (rev. # 1, 2008) [business necessity exception of section 12951 may apply, for example, "where necessary to enable English-speaking supervisors to monitor employee communications to ensure efficient work and appropriate behavior"].)
We observe it is ironic that plaintiff has asserted a claim for violation of section 12951 which, as discussed ante, proscribes rules that might create an oppressive and intimidating workplace and harm morale. Here, the undisputed evidence shows plaintiff has used her native language in order to create an oppressive and intimidating workplace. Plaintiff's claim, on this record, is antithetical to the purposes for which section 12951 was enacted.
We find no error.
The California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) declares it an "unlawful employment practice" to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment because of, inter alia, the person's national origin. (§ 12960, subd. (a)). In the complaint, plaintiff alleged defendant engaged in national origin discrimination against her by adopting an English-only language rule and by terminating her employment because of her national origin.
California resolves FEHA discrimination claims by applying the burden-shifting procedure known as the McDonnell Douglas test. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).) Under that test, the plaintiff bears the initial burden of providing a prima facie case of discrimination by presenting evidence showing (1) he or she was a member of a protected class, (2) he or she was qualified for the position sought or was performing competently in the position held, (3) he or she suffered an adverse employment action, and (4) some other circumstance suggests a discriminatory motive. (Guz, supra, at pp. 354-355.) If the plaintiff establishes a prima facie case of discrimination, a rebuttable presumption of discrimination arises and the burden shifts to the employer to rebut the presumption by producing admissible evidence—sufficient to raise a genuine issue of fact and to justify judgment for the employer—that its employment action was taken for a legitimate nondiscriminatory reason. (Id. at pp. 355-356.) Where the employer meets this burden, the presumption of discrimination disappears, and the plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of a discriminatory motive. (Id. at p. 356.)
In Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004-1005, a panel of this court addressed the application of the McDonnell Douglas test in the context of a motion for summary judgment: "As Guz[, supra, 24 Cal.4th at pages 356-357] explains, several decisions suggest that when an employee opposes an employer's motion for summary judgment of a discrimination claim, the employer must make the initial showing of no merit and the McDonnell Douglas burdens are reversed. [Citation.] Other decisions suggest the plaintiff can survive the employer's summary judgment motion merely by presenting, at the outset, evidence satisfying the prima facie elements of McDonnell Douglas. [Citation.] Guz did not resolve the issue because the defendant in that case proceeded to the second step of the McDonnell Douglas test and produced admissible evidence sufficient to raise a genuine issue of material fact that its actions were taken for a legitimate, nondiscriminatory reason. [Citation.] [¶] In Kelly[v. Stamps.com Inc. (2005)] 135 Cal.App.4th 1088, the court explained the Guz standard in light of the California Supreme Court's decision in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 . . .: `A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendant's.'" In Scotch v. Art Institute of California, we agreed with and applied the standard set forth in Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, in affirming summary judgment in favor of an employer as to a disability discrimination claim alleged under the FEHA. (Scotch v. Art Institute of California, supra, at pp. 994, 1005.)
In moving for summary judgment, defendant produced evidence showing that plaintiff was suspended and her employment was ultimately terminated solely because she repeatedly engaged in misconduct at work. Beginning no later than April 2008, defendant received numerous complaints from employees about plaintiff's "loud and disruptive" behavior at work, which included plaintiff calling co-employees derogatory names, using foul language, and, on one occasion, expressing her desire to kill an employee to whom she referred to as "Demonyo" in Tagalog, which word translated into English is "devil."
Harris conducted an investigation into the employees' complaints. She met with employees who are of Filipino background and speak Tagalog. She reviewed the English translation of dialogues that occurred between plaintiff and other employees on the Q-message system. Harris concluded that the complaints about plaintiff were consistent, and that plaintiff's inappropriate behavior and comments were having a seriously negative effect in the workplace. Plaintiff's wrongful conduct was further evidenced by her sending e-mails to Harris, Johnson, and Humphries, in which plaintiff apologized for her behavior, stated she had learned her lesson, and asserted she would try to be a better person. Plaintiff was informed by Johnson during a telephone conversation and, later, in a letter that her employment was terminated because of "numerous instances of serious, inappropriate workplace behavior, including threatening a co-worker."
Defendant therefore satisfied its burden of presenting sufficient evidence of nondiscriminatory reasons for plaintiff's suspension and employment termination to enable a trier of fact to reasonably find, more likely than not, that they were the basis for the termination of her employment. The burden therefore shifted to plaintiff to "`adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred.'" (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1005.)
Plaintiff produced evidence showing that she denied calling Johnson a "bitch," calling coworkers various names, threatening to kill a coworker, and admitting to threatening to kill a coworker. Plaintiff did not, however, produce any evidence refuting that defendant received complaints about plaintiff's misconduct, including that an employee heard plaintiff express the desire to kill a particular coworker.
There is no evidence plaintiff, or any other employee, was ever disciplined for simply communicating in Tagalog or any other language. There is no evidence which supports a finding that plaintiff's suspension and employment termination were motivated by anything other than the inappropriate substance of her communications along with her disruptive conduct.
As plaintiff failed to carry her burden showing that a triable issue of material fact existed as to whether national origin discrimination had occurred, summary judgment was properly granted.
Plaintiff's wrongful termination in violation of public policy claim was based on her national origin discrimination claim and her violation of section 12951 claim. For the reasons discussed ante, there are no triable issues of material fact as to her discrimination claim or section 12951 claim. Consequently, her claim for wrongful termination in violation of public policy fails as a matter of law. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [because the plaintiff's FEHA claim failed, his wrongful termination claim failed].)
The judgment is affirmed. Respondents shall recover costs on appeal.
WE CONCUR:
O'LEARY, ACTING P. J.
IKOLA, J.
