Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC325282, David L. Minning, Judge.
Law Offices of Patricia Grace and Patricia J. Grace for Plaintiff and Appellant.
Carlton DiSante & Freudenberger, Marie D. DiSante, Laura L. Saadeh, Maria O. Gutierrez and Jeremy D. Horowitz for Defendants and Respondents.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Juanita Daly appeals from a summary judgment in favor of defendants California State University Long Beach and Thomas Rhee. On appeal, she contends that the trial court erred in sustaining defendants’ objections to her evidence and failed to specify the evidence it believed established that no triable issue of fact existed. She also contends defendants are estopped to claim failure to comply with the government claim-filing requirements and that a triable issue of fact exists as to whether she was a victim of sexual harassment, sexual discrimination and retaliation. We affirm.
On summary judgment, the facts are those shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5.)
Plaintiff began working at California State University Long Beach (CSULB) in 1984. In August 1993, plaintiff became the Department Secretary in the Department of Finance, Real Estate and Law (Department) in the College of Business. Defendant Rhee was a professor in the Department.
Soon after plaintiff began working in the Department, Rhee asked her to go to lunch with him, and she declined. A year or two later, he asked her to go to lunch with him again, and again she declined. After a few minutes of trying to change plaintiff’s mind, Rhee accepted her response.
On December 8, 2003, as plaintiff was trying to get into her office, Rhee came up behind her, stood just inches from her and began yelling at her about a travel voucher. He refused to step back so that plaintiff could unlock her door and get into her office. Instead, he stood there, just inches from her, trapping her against the door. Plaintiff was afraid Rhee was going to strike her due to his volatile and explosive temper, and she was afraid to have her back to him. He did not use profanity or make any physical contact with her, however.
On December 9, 2003, plaintiff and Rhee had another disagreement about whether she would proctor an exam for him while he was traveling to a conference. Again, Rhee yelled at plaintiff. The next day, plaintiff reported the incident to the CSULB campus police. Plaintiff spoke to Madonna Gage of the campus police department about her problems with Rhee. Officer Gage advised plaintiff to get a restraining order to assure plaintiff’s safety.
Plaintiff also spoke to the campus Ombudsman about the problem. The Ombudsman recommended that plaintiff do nothing until CSULB investigated her complaints. On December 23, 2003, plaintiff filed an application for a temporary restraining order against Rhee based on harassment. (Daly v. Rhee (Super. Ct. L.A. Co., No. NS012377).) Plaintiff obtained a restraining order against Rhee that ran for six months, until May 2004. Pursuant to the order, Rhee could not have any contact with plaintiff.
Rhee continued contact with plaintiff, but indirectly. He sent e-mails to her through intermediaries. He began sending students to plaintiff’s office to obtain office supplies more frequently than he had requested office supplies prior to the issuance of the restraining order. He also sent a student to request that plaintiff help him obtain a computer, even though the appropriate procedure was to go through the computer lab.
Plaintiff complained to CSULB Employee Relations about Rhee. Following an investigation, Rhee received a 10-day suspension for unprofessional conduct towards plaintiff, a student and another faculty member. Rhee appealed his suspension to the State Personnel Board. Prior to the hearing, Rhee and CSULB entered into a settlement agreement which reduced Rhee’s suspension to three days.
Plaintiff also sought a permanent injunction against Rhee. Her request was denied.
After the temporary restraining order expired, plaintiff indicated that she was afraid for her safety around Rhee. In her position as Department secretary, plaintiff was required to interact with Department professors and her office was located near their offices. Her job skills were easily transferable to other departments, however. Rhee, on the other hand, was a tenured finance professor and was qualified only to teach courses and perform other professional duties in the Department. CSULB therefore decided to transfer plaintiff to another department so that she would not have to come in contact with Rhee.
In May 2004, CSULB temporarily reassigned plaintiff to the College of Business Advising Center. After her transfer, plaintiff discovered Rhee “lurking” outside her office door. There was one door to the office, so plaintiff was unable to leave the office until Rhee left the area.
In early August 2004, CSULB transferred plaintiff to the Department of Kinesiology and Physical Education in the College of Health and Human Services (Kinesiology). At all times, plaintiff maintained the same salary, seniority, and benefits.
Plaintiff’s position with the Department was as an administrative support coordinator, while her position with Kinesiology was as an administrative support assistant. Plaintiff viewed her transfer to Kinesiology as a demotion and filed a grievance through her union, claiming that her transfer violated the collective bargaining agreement between the union and CSULB. Her grievance was denied at every stage.
Rhee filed a personnel complaint against plaintiff, complaining that evidence plaintiff’s attorney used in her court case included a confidential document from his personnel file. Plaintiff received a 10-day suspension. After serving two days of the suspension, on August 25, 2004, plaintiff resigned her position with CSULB.
Plaintiff claimed this document “was on [her] desk one day when [she] came into [her] office” and then “showed up in the court along with [her] other documents.” She denied giving it to her lawyer and claimed she did not know how it ended up in court.
On June 1, 2004, while plaintiff was temporarily working at the College of Business Advising Center, plaintiff’s attorney sent a letter described as a “Government Complaint” to CSULB. An attorney for CSULB immediately sent her a response informing her that the campus was “not the proper place to submit governmental claims or notices of claims” and recommending that she “consult applicable law” to ensure the claim was filed properly. Plaintiff’s attorney sent a second, nearly identical letter to the same campus address on December 27, 2004. The CSULB attorney again sent a response informing plaintiff that “the campus is not the appropriate place to submit governmental claims or notice claims.” Plaintiff made no further efforts to refile this claim in the proper location to ensure compliance with the Government Tort Claims Act (Gov. Code, § 810 et seq.).
Plaintiff also filed complaints against CSULB with the Department of Fair Employment and Housing (DFEH) on May 24 and December 3, 2004. Both times, she requested and received an immediate right to sue letter.
PROCEDURAL BACKGROUND
Plaintiff filed this action setting forth causes of action against CSULB and Rhee for harassment, discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, §12940 et seq.), and for negligence. She set forth causes of action for defamation, sexual harassment, and assault and battery against Rhee. Defendants filed a joint answer, generally denying the allegations and raising a number of affirmative defenses, including exclusivity of workers’ compensation, expiration of the statute of limitations, failure to satisfy FEHA claim-filing requirements, failure to satisfy government tort claim-filing requirements, and failure to exhaust administrative remedies.
Defendants moved for summary judgment or, in the alternative, summary adjudication. The bases of the motion were as follows:
1. Harassment under FEHA: failure to exhaust administrative remedies, failure to establish severe and pervasive harassment;
2. Discrimination under FEHA: failure to establish differential treatment based on gender or national origin, no individual liability for discrimination under FEHA;
3. Retaliation under FEHA: failure to establish engaging in protected activity or adverse employment action, legitimate business reason for plaintiff’s transfer;
4. Defamation: no admissible evidence of defamatory comments;
5. Sexual harassment under Civil Code section 51.9: failure to establish severe and pervasive harassment;
6. Assault and battery: failure to establish assault or battery, preemption by Workers’ Compensation Act;
7. Negligence: failure to establish negligence, preemption by Workers’ Compensation Act; barred by failure to follow claim-filing requirements of Government Tort Claims Act.
In support of her opposition to the summary judgment motion, plaintiff submitted the declaration of her lawyer, Patricia Grace, with 19 exhibits attached. Defendants objected to many of the exhibits attached to the declaration on the grounds that the documents had not been authenticated, contained numerous hearsay statements, lacked foundation, and were not based on Grace’s personal knowledge. Plaintiff filed the same documents attached to a supplemental declaration from Attorney Grace, which addressed the issue of authentication.
After a hearing, the trial court granted the summary judgment motion in its entirety. With respect to the causes of action for sexual harassment, discrimination, retaliation under FEHA, and sexual harassment under Civil Code section 51.9, the court concluded that plaintiff “failed to establish through admissible evidence a triable issue of material fact as to whether the Defendants took any action as the result of Plaintiff engaging in a protected activity or being in a protected class. Because this proves fatal to these four causes of action, the Court does not find it necessary to rule on any of the other arguments for dismissal raised in Defendants’ moving and reply papers.” Regarding plaintiff’s causes of action for defamation, negligence, and assault and battery, the court concluded that these claims were barred because plaintiff had not complied with the government tort claims-filing requirements. Again, the court found it unnecessary to address the remainder of defendants’ bases for summary judgment. The following day, the court ruled on defendants’ objections to plaintiff’s proferred evidence in a separate order. The court sustained the objections to plaintiff’s Exhibits A through C, E through O, Q and S; it overruled their objections to Exhibit P.
DISCUSSION
I
Evidentiary Rulings
Plaintiff contends that the trial court erred in excluding certain pieces of evidence. We disagree.
A party opposing a motion for summary judgment must rely on admissible evidence. (Code Civ. Proc., § 437c, subd. (d); see Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487-1488; Hayman v. Block (1986) 176 Cal.App.3d 629, 638.) The trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. “Under this standard, the trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168.)
A. Exhibit A—Plaintiff’s Deposition Testimony
The trial court sustained defendants’ objections to two portions of plaintiff’s deposition transcript: (1) plaintiff’s testimony regarding what Jasmine Yur-Austin (Yur-Austin) and Yulong Ma (Ma) told her; Yur-Austin and Ma related to plaintiff things that Rhee had said about plaintiff, and (2) plaintiff’s statements that CSULB transferred her to a lower position.
Plaintiff’s testimony about what Yur-Austin and Ma told plaintiff that Rhee said about plaintiff is by definition hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Plaintiff’s only argument is that part of the excluded portion of plaintiff’s testimony is not hearsay. Inasmuch as these parts are not material to the determination of the issues on appeal, any error in excluding them is harmless. (Evid. Code, § 354.)
Although plaintiff admitted that she received the same salary and benefits in the position with Kinesiology, she nonetheless stated that she was transferred to a lower position. The bases for her statement were that her new position was titled Administrative Support Assistant, while her prior position was titled Administrative Support Coordinator, and she was being paid the same to do less work.
Plaintiff’s statement that the new position was lower than the old one is a conclusion. Absent evidentiary facts to support it, it is insufficient to withstand a summary judgment motion. (Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113.)
B. Exhibit F—Leslie Nix-Baker’s Deposition Testimony
Attorney Grace’s original declaration described Exhibit F as “portions/excerpts of the deposition transcript of Leslie Nix-Baker” (Nix-Baker). Defendants objected to the entire transcript on the ground that it was not properly authenticated. They also objected that plaintiff or Attorney Grace “altered the transcript in at least one location by writing on it.” Finally, they objected that testimony regarding general complaints by College of Business staff members after plaintiff left the Department were irrelevant.
Attorney Grace subsequently submitted a supplemental declaration in which she claimed that the attached Exhibit F was “a true and correct copy of portions/excerpts of the deposition transcript of Leslie Nix-Baker.” This was sufficient to authenticate the transcript. (Evid. Code, §§ 1400, 1401; People v. Garcia (1988) 201 Cal.App.3d 324, 328-329.)
With respect to the references to complaints by staff after plaintiff left the College of Business, plaintiff does not argue that they were improperly excluded. Rather, she argues that she was prejudiced “if the trial court sustained the objection to all of Exhibit F.”
The trial court did not specify in its ruling on defendants’ evidentiary objections whether it sustained the objection to the entire exhibit or just to portions thereof. We must presume the trial court ruled correctly and considered the admissible portions of Nix-Baker’s deposition testimony. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.)
C. Exhibit G—Deposition Testimony of Lowell Richard Runyon
Defendants objected to Exhibit G on the grounds that it was not properly authenticated, was hearsay and lacked personal knowledge. As discussed above in connection with Exhibit F, the authentication problem was corrected by Attorney Grace’s supplemental declaration.
Lowell Richard Runyon (Runyon) testified in part regarding statements about Rhee made to Runyon by plaintiff, Professor Sachdeva and a student. The hearsay objection to this testimony properly was sustained. (Evid. Code, § 1200, subd. (a).) We presume the trial court properly considered those portions of Runyon’s testimony that did not contain hearsay. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Fleishman v. Superior Court, supra, 102 Cal.App.4th at p. 357.)
D. Exhibit K—CSULB Documents
Attorney Grace’s declaration described Exhibit K as “a true and correct copy of various documents produced by defendant CSU in discovery.” This was an insufficient foundation for the admission of these documents, in that it did not identify the documents, only how they were obtained. (See, e.g., Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526.) “A document is not presumed to be what it purports to be, and it must be authenticated in some fashion before it is introduced into evidence. [Citations.]” (Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65; accord, Continental Baking Co., supra, at p. 525.) Accordingly, defendants’ objection to Exhibit K properly was sustained.
E. Exhibit M—Internet Documents
In her supplemental amended declaration, Attorney Grace described Exhibit M as “a true and correct copy of Thomas Rhee’s latest biography which can be accessed via the internet at www.csulb.edu.” She was able to authenticate the document as an accurate representation of the information obtained by computer from the internet. (2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence, § 48, p. 171.) She did not, however, authenticate it as Rhee’s latest biography, i.e., that it was what it purported to be (Fakhoury v. Magner, supra, 25 Cal.App.3d at p. 65; see also 57 Am.Jur.3d (2000) Proof of Facts, § 6, pp. 480-481). She failed to establish the foundation to declare that the document is what she claims it to be. (See, e.g., McAllister v. George (1977) 73 Cal.App.3d 258, 262.)
Plaintiff also included in Exhibit M partial page printouts from the website of Tara Global, purportedly Dr. Rhee’s consulting company. Attorney Grace did not even attempt to authenticate these pages. Thus, the trial court properly excluded Exhibit M.
F. Exhibit O—Transcript Excerpts
Plaintiff submitted two pages of the reporter’s transcript from a hearing on her request for a temporary restraining order against Rhee. Defendants objected that the inclusion of the transcript was an improper request for judicial notice, and that inclusion of only a portion of the transcript was improper.
Plaintiff argues that there is no authority for the proposition that partial transcripts of hearings are inadmissible. She does not address the objection that inclusion of the transcript was an improper request for judicial notice. (Evid. Code, § 452, subd. (d); Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056.) She has not met her burden of establishing error on appeal. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
II
Summary Judgment
A. Failure to Specify the Basis for Summary Judgment
Plaintiff contends that the trial court failed to comply with Code of Civil Procedure section 437c, subdivision (g) (section 437c(g)) in granting the summary judgment motion. Specifically, she claims the trial court was required to specify the evidence which established that no triable issue of fact existed. We conclude that while the trial court may not have complied fully with section 437c(g), any error was harmless.
Section 437c(g) requires that a court granting a motion for summary judgment on the ground that there is no triable issue of material fact “specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists.”
In general, “[a] statement of reasons is sufficient if it allows for meaningful appellate review.” (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448; W.F. Hayward Co. v. Transamerica Ins. Co. (1993) 16 Cal.App.4th 1101, 1111.) Even if a statement of reasons does not fully comply with section 437c(g), reversal is not automatic. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027; Santa Barbara Pistachio Ranch, supra, at p. 448.) This is because we look at the evidence de novo and review the validity of the judgment, not the trial court’s stated reasons therefor. (Ace American Ins. Co., supra, at p. 1027; Santa Barbara Pistachio Ranch, supra, at pp. 448-449.)
The trial court’s order specifies that plaintiff “failed to establish through admissible evidence a triable issue of material fact as to whether the Defendants took any action as the result of plaintiff engaging in a protected activity or being in a protected class,” and plaintiff’s failure to comply with the Government Tort Claims Act was fatal to plaintiff’s nonstatutory tort claims. The court also specified in a separate order which evidence had been admitted and which had been excluded. This is sufficient to apprise us of the bases of the trial court’s grant of summary judgment and to enable us to review the validity of the judgment. Accordingly, any failure to comply fully with section 437c(g) is harmless. (Ace American Ins. Co. v. Walker, supra, 121 Cal.App.4th at p. 1027; Santa Barbara Pistachio Ranch v. Chowchilla Water Dist., supra, 88 Cal.App.4th at p. 448.)
B. Standard of Review
Summary judgment properly is granted if the evidence submitted in support of and opposition to the motion establishes that there is no material issue of fact to be tried. (Code Civ. Proc., § 437c, subd. (c); California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) Doubts as to the propriety of granting the motion must be resolved in favor of the parties opposing the motion. (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 249; Campbell v. Derylo (1999) 75 Cal.App.4th 823, 826.)
We review a grant of summary judgment de novo to determine whether triable issues of material fact exist. (Wiener v. Southcoast Childcare Centers., Inc. (2004) 32 Cal.4th 1138, 1142.) We examine the facts presented to the trial court and determine their effect as a matter of law. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464; Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 172.) We may affirm a summary judgment on any correct legal theory, even if the trial court relied on a different theory to reach the same conclusion. (California School of Culinary Arts v. Lujan, supra, 112 Cal.App.4th at p. 22; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
C. FEHA Claims
1. Sexual Harassment
To establish a prima facie case of sexual harassment, plaintiff must show by admissible evidence that she was subjected to unwelcome sexual comments or conduct, that the harassment was based on sex, and that the harassment was so severe or pervasive as to “‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67; accord, Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21; Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.) Plaintiff must show that her work environment was “permeated with ‘discriminatory intimidation, ridicule and insult.’” (Harris, supra, at p. 21.)
In order to show a pervasive environment of harassment, plaintiff must “show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.) The “acts of harassment cannot be occasional, isolated, sporadic, or trivial.” (Ibid.) Additionally, plaintiff must show not only that she was offended but that the harassment was severe enough to have affected a reasonable employee’s work performance and “seriously affected the psychological well-being of a reasonable employee.” (Id. at pp. 609-610; see also Lyle v. Warner Brothers Television, supra, 38 Cal.4th at p. 284.)
In support of their summary judgment motion, defendants relied on plaintiff’s deposition testimony. When asked whether she felt sexually harassed at any time while working at CSULB, plaintiff identified three instances of sexual harassment. The first involved inappropriate comments and touching by professor John Hinds prior to 1993. The other two instances were the two times Rhee pressured her to go out to lunch with him, 1993 and 1994 or 1995. Two invitations to lunch that occurred in the early-to-mid 1990s do not “show a concerted pattern of harassment of a repeated, routine or a generalized nature” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610) or a work environment “permeated with ‘discriminatory intimidation, ridicule and insult.’” (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 21).
In opposition to defendants’ motion for summary judgment, plaintiff presented evidence of Rhee’s subsequent abusive behavior toward plaintiff and other people, characterizing it as sexual harassment. Plaintiff is bound by the admission in her declaration, however. “‘Where . . . there is a clear and unequivocal admission by the plaintiff . . . in [her] deposition[, the court is] forced to conclude there is no substantial evidence of the existence of a triable issue of fact.’ . . . [¶] [A]dmissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. . . . ” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, citations omitted; see also Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment”].)
Moreover, plaintiff failed to present evidence that the later acts of harassment constituted sexual harassment. A sexual harassment claim must be based on conduct that is not merely objectionable but specifically based on the plaintiff’s sex. (Lyle v. Warner Brothers Television, supra, 38 Cal.4th at p. 280.) Conduct based on a workplace grudge or personal incompatibility (Davis v. Coastal Intern. Sec., Inc. (D.C. Cir. 2002) 275 F.3d 1119, 1123; King v. Board of Regents of Univ. of Wis. System (7th Cir. 1990) 898 F.2d 533, 539) or which is merely “[u]nfair, overbearing, or annoying” (Porras v. Montefiore Medical Center (S.D.N.Y. 1990) 742 F.Supp. 120, 127) does not constitute sexual harassment.
The case on which plaintiff relies to support her sexual harassment claim, Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, is inapposite. In that case, plaintiff was harassed at work by a coworker who was a former boyfriend, “with whom she had parted on very bad terms.” (Id. at p. 1180.) He taunted and harassed plaintiff for six months, using gender-specific profanity. (Id. at pp. 1180, 1187.) Here, by contrast, the harassing actions took place over an extended period of time and were directed at a number of people, not just plaintiff. Additionally, the actions and Rhee’s comments were not gender-specific. That Rhee may have been angry at plaintiff for spurning his advances and treated her poorly as a result does not transform his actions into sexual harassment. (Succar v. Dade County School Bd. (11th Cir. 2000) 229 F.3d 1343, 1345.)
The evidence presented by defendants establishes that plaintiff was not subjected to sexual harassment within the meaning of FEHA. The trial court therefore properly adjudicated that cause of action summarily.
In view of this conclusion, we need not address defendants’ argument that plaintiff’s cause of action is barred by her failure to file a claim with the DFEH within one year of the incidents which gave rise to the cause of action. (Gov. Code, § 12960, subd. (d).)
2. Gender Discrimination
To establish a prima facie case of discrimination in violation of FEHA, the employee must show that (1) she was a member of a protected class; (2) she was qualified for the position she held and was performing competently; (3) she suffered an adverse employment action, such as a termination or demotion; and (4) her protected status was a motivating factor for the adverse action. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Once the employee has made a prima facie case of discrimination, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the employment action taken. (Id. at pp. 355-356.) If the employer makes this showing, the burden shifts back to the employee to “‘offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ [Citations.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807; accord, Guz, supra, at p. 356.)
Plaintiff argues that gender discrimination was shown by the fact that Rhee, a man, received only a three-day suspension for his attacks on plaintiff and other women, while plaintiff, a woman, received a 10-day suspension based on the suspicion that she provided her lawyer with Rhee’s confidential personnel documents. Additionally, in order to keep Rhee away from plaintiff, CSULB locked plaintiff in her office, then transferred her to another department, while taking no action against Rhee other than to tell him to stay away from plaintiff.
In order to prove gender discrimination based on disparate treatment, plaintiff must show that she and the employee who was not a member of a protected class were “similarly situated in all respects.” (Mitchell v. Toledo Hosp. (6th Cir. 1992) 964 F.2d 577, 583.) This she failed to do. She and Rhee were disciplined for different transgressions; she cites nothing other than her own opinion that Rhee’s transgression was more serious than her own. A triable issue of fact “can only be created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807, italics added.)
Moreover, the evidence shows Rhee initially received a 10-day suspension, but he appealed his suspension to the State Personnel Board and subsequently entered into a settlement agreement with CSULB which reduced his suspension to three days. Plaintiff offered no evidence that she appealed her suspension and was denied the opportunity to settle for a lesser suspension.
Similarly, plaintiff was an administrative support coordinator, while Rhee was a tenured professor. Defendants presented evidence that plaintiff’s job skills were easily transferable to other departments while Rhee’s were not. Since plaintiff and Rhee were not “similarly situated in all respects,” she cannot use CSULB’s treatment of Rhee to support her disparate treatment claim. (Mitchell v. Toledo Hosp., supra, 964 F.2d at p. 583.)
Even if plaintiff had established a prima facie case of discrimination, she points to no substantial evidence to show that CSULB’s rationale for transferring her rather than Rhee was in any way pretextual or that its true motive was discriminatory. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at pp. 806-807.) She presented no admissible evidence that Rhee was qualified to teach classes in other departments and could be transferred to one of those departments as easily as she could be transferred. (Cf. Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.)
In addition, plaintiff failed to show that she was subjected to an adverse employment action for FEHA purposes. An adverse employment action “consists of discrimination regarding compensation, terms, conditions, or privileges of employment and disparate treatment in employment, specifically requiring people to work in a discriminatorily hostile or abusive environment.” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) By contrast, “‘[m]inor or relatively trivial adverse actions or conduct by employers o[r] 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.’” (Malais, supra, at p. 357, quoting Yanowitz, supra, at pp. 1054-1055.)
Thus, “‘“[a] change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” . . . “‘[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.’ . . . ”’” (Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 357.) A plaintiff claiming she was subjected to an adverse employment action based on discrimination “‘must show the employer’s . . . actions had a detrimental and substantial effect on the plaintiff’s employment.’” (Id. at p. 358.)
Plaintiff failed to make that showing here. It is undisputed that plaintiff maintained the same salary, seniority, and benefits after her transfer. She was not transferred to a discriminatorily hostile or abusive environment; indeed, she was transferred away from an abusive environment.
In summary, plaintiff failed to prove gender discrimination based on disparate treatment or an adverse employment action. The trial court therefore properly granted summary judgment to CSULB as to plaintiff’s gender discrimination cause of action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355; Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 358.)
The trial court properly granted summary judgment as to plaintiff’s gender discrimination claim against Rhee for an additional reason: there is no individual liability for discrimination under FEHA. (Reno v. Baird (1998) 18 Cal.4th 640, 663; Janken v. GM Hughes Electronics. (1996) 46 Cal.App.4th 55, 62.) It is undisputed that CSULB, and not Rhee, was plaintiff’s employer. As a matter of law, Rhee cannot be liable to plaintiff for gender discrimination under FEHA.
3. Retaliation
To make a prima facie showing of retaliation, plaintiff must show that (a) she engaged in a protected activity (i.e., opposing a practice forbidden under FEHA); (b) she was thereafter subjected to an adverse employment action by her employer; and (c) there was a causal link between the protected activity and the adverse action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)
As discussed above, plaintiff failed to prove that she was subjected to an adverse employment action. This failure alone is sufficient to entitle CSULB to summary judgment as to plaintiff’s retaliation cause of action.
Plaintiff argues that she engaged in protected activity when she filed a complaint against Rhee with CSULB and sought a restraining order against him. These actions were based on Rhee’s abusive conduct in 2003 and 2004, however. They were not based on conduct plaintiff identified as sexual harassment, which occurred approximately 10 years earlier.
Plaintiff failed to make a prima facie showing of retaliation by CSULB. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 69.) Summary judgment therefore was proper as to this cause of action.
While plaintiff correctly asserts that a cause of action for retaliation may be maintained against an individual as well as an employer (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1517), she fails to demonstrate how she established a triable issue of fact as to Rhee’s liability for retaliation under FEHA. Since she failed to meet her burden on appeal of demonstrating error, we must presume the trial court properly granted summary judgment as to plaintiff’s retaliation cause of action against Rhee. (Fleishman v. Superior Court, supra, 102 Cal.App.4th 350, 357; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
III
Tort Claims
Plaintiff’s first amended complaint contains nonstatutory tort claims for slander, negligence, and assault and battery. The trial court found that these claims were barred due to plaintiff’s failure to comply with the government tort claims filing requirements.
A tort claim asserted against the government must be presented within six months of the alleged injury. (Gov. Code, § 911.2.) The claim “shall be presented to the state by either of the following means: [¶] (1) Delivering it to an office of the Victim Compensation and Government Claims Board [or] [¶] (2) Mailing it to the Victim Compensation and Government Claims Board at its principal office.” (Id., § 915, subd. (b).)
Plaintiff was required to follow this procedure to assert her nonstatutory tort claims against CSULB and Rhee. (Gov. Code, §§ 915, subd. (b), 945.4, 950.2.) These procedures are not merely a formality; the Legislature put them in place “‘“to facilitate early investigation of disputes and settlement without trial if appropriate, as well as to enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.”’” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 763.)
The Tort Claims Act does not require that a claim be filed with a state employee before an action can be brought against that employee. (Gov. Code, § 950.) However, a claim must be filed with the state against the employee’s employer, or the action is barred. (Id., § 950.2; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034.)
Attorney Grace sent plaintiff’s claim to the CSULB campus on June 2, 2004. University Counsel Gale Baker sent her a letter on June 7, 2004 clearly informing her that the CSULB campus “is not the proper place to submit governmental claims or notices.” The letter further explained that the University Counsel’s office could not provide legal advice to claimants or their attorneys but recommended that plaintiff’s attorney “consult applicable law” if she had any doubts about the proper procedure to follow in filing her claim. The letter also warned that “[f]ailure to follow the law and/or any contractual terms may result in loss of the claim.” Despite these warnings, Attorney Grace sent a second claim to the CSULB campus on December 27, 2004. Attorney Baker again sent a response informing plaintiff that “the campus is not the appropriate place to submit governmental claims or notice claims.” Attorney Grace made no further efforts to refile the claim in the proper location.
Compliance with the claims filing requirements is mandatory; failure to comply bars the action. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454; Johnson v. San Diego Unified School Dist. (1990) 217 Cal.App.3d 692, 697.) Plaintiff acknowledges that she never filed a claim in the proper location. She contends, however, that defendants are estopped from raising her lack of compliance as a defense. We disagree.
According to Attorney Grace, on June 1, 2004, plaintiff told her that she had a conversation with a CSULB representative “who informed her that Plaintiff’s Government Tort Claim regarding harassment and discrimination should be sent to the Office of Equity and Diversity,” located on the CSULB campus. Attorney Grace sent the claim to that address and received the letter from Attorney Baker. She then telephoned Attorney Baker and asked for the address where she should send the claim. Attorney Baker refused to provide her with the address.
A public entity may be estopped from asserting noncompliance with the government tort claims filing requirements “where the entity has ‘prevented or deterred the filing of a timely claim by some affirmative conduct.’” (Hill v. Newkirk (1994) 26 Cal.App.4th 1047, 1058; Johnson v. San Diego Unifed School Dist., supra, 217 Cal.App.3d at p. 700.)
In support of her claim of estoppel, plaintiff relies on Mendibles v. City of San Diego (1950) 100 Cal.App.2d 502 and Bruce v. Jefferson Union High Sch. Dist. (1962) 210 Cal.App.2d 632. Neither supports her claim.
In Mendibles, the city charter conflicted with the Government Code with respect to claim filing procedures. (Mendibles v. City of San Diego, supra, 100 Cal.App.2d at p. 506.) Plaintiff followed the city charter and the mayor’s advice. (Id. at pp. 503, 506.) Because she did so, and because the city council considered and voted on the claim in any event, the court held the city was estopped from claiming plaintiff had not filed her claim with the proper authorities. (Id. at pp. 505-506.)
In Bruce, plaintiff, a student, was injured at school. He followed the instructions the school gave him for filing a claim, and the school never told him he had not complied with the requirements to file a valid claim. The court held that the school was estopped from asserting that the plaintiff had not filed a timely claim, because it did not affirmatively tell him he had not complied with the claim-filing requirements. (Bruce v. Jefferson Union High Sch. Dist., supra, 210 Cal.App.2d at p. 634.)
Assuming arguendo that Attorney Grace reasonably relied on the information plaintiff gave her in sending plaintiff’s claim to the CSULB campus, defendants might have been estopped to deny compliance with the government tort claim-filing statutes if CSULB failed to inform her that she sent the claim to the wrong location. (Bruce v. Jefferson Union High Sch. Dist., supra, 210 Cal.App.2d at p. 634.) However, CSULB immediately informed Attorney Grace that she sent the claim to the wrong location. When Attorney Grace sent plaintiff’s claim to the wrong location a second time, CSULB again notified her that she had done so. At that point, Attorney Grace had no basis for relying on the information provided to her by plaintiff. Since CSULB informed Attorney Grace that she sent plaintiff’s claim to the wrong location and Attorney Grace could not have relied on advice received from CSULB as to the location for filing a government tort claim, Mendibles and Bruce are inapposite.
After the initial erroneous information plaintiff provided to Attorney Grace, CSULB did not in any way “‘prevent[] or deter[] the filing of a timely claim by some affirmative conduct.’” (Hill v. Newkirk, supra, 26 Cal.App.4th at p. 1058.) Therefore, defendants were not estopped to assert plaintiff’s noncompliance with the government tort claims-filing statutes as a defense. The trial court properly granted summary judgment as to plaintiff’s nonstatutory tort causes of action on that basis.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.